BES Commercial Electricity Ltd & Ors v Cheshire West And Chester Borough Council

Private law proceedings are not automatically excluded merely because the alleged wrong involves a public authority or raises the validity of a public law decision. The exclusivity principle must remain confined to its proper scope, particularly where the public law issue arises collaterally in a private law claim or requires factual findings unavailable on judicial review.

Applications to strike out or obtain summary judgment should be refused where the claim has a real prospect of success, the law is uncertain or developing, and factual disputes require trial. Questions concerning the availability of a Convention remedy, malice and witness immunity may therefore require determination after the facts have been established.

The claimants appealed against Master Davison’s order of 3 August 2018, which struck out and granted summary judgment on parts of their claims against the defendant local authority.

The claims arose from police search warrants obtained during a trading standards investigation allegedly instigated by the defendant. The claimants alleged misfeasance in public office, trespass to goods and breaches of Article 8 and Article 1 of Protocol 1 of the Convention, seeking just satisfaction under section 8 of the Human Rights Act 1998.

The central issues were whether the Convention claims could proceed without first quashing the warrants, and whether the defendant was protected by litigation-related immunity.

1. Appeal allowed. The claimants were permitted to proceed with all claims identified in their latest pleaded case.
2. The court rejected the conclusion that the Human Rights Act claims were unarguably confined to judicial review. The exclusivity principle in O’Reilly v Mackman [1983] 2 AC 237 did not impose a blanket prohibition on private law proceedings involving public law issues. The approach in Richards v Worcestershire CC [2017] EWCA Civ 1998 supported keeping the principle within its proper scope.
3. The validity of the warrants could involve disputed questions about what information was given to the issuing judge and what causal effect any misleading or inadequate information had. Following R (Fitzpatrick) v CC Warwickshire [1999] 1 WLR 564, judicial review was an unsatisfactory mechanism for resolving such factual issues in all but the clearest cases.
4. The authorities on immunity, including Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 and Roy v Prior [1971] AC 470, raised substantial questions about the boundary between protected participation in judicial proceedings and conduct undertaken as an investigator or law enforcer. The judgment did not finally determine those substantive issues.
5. Under CPR Part 3.4, strike-out was inappropriate unless the claim disclosed no reasonable grounds and was bound to fail. Under CPR 24.2, summary judgment was unavailable where the claimant had a real prospect of success. The developing and fact-sensitive nature of the issues made summary disposal inappropriate, as reflected in Hughes v Colin Richards & Co [2004] EWCA Civ 266.

• High Court (Queen’s Bench Division): allowed the appeal against Master Davison’s order of 3 August 2018, which had struck out and summarily determined parts of the claim.