Seymour Young v The Chief Constable of the

A claim for misfeasance in public office cannot be sustained merely by showing an error, negligence or incompetence in a public function. The claimant must plead and provide a realistic basis for proving targeted or untargeted malice, together with the public officer’s actual foresight of the probability of the relevant damage. Where the pleaded facts are equally consistent with mistake or want of care, the claim is liable to be struck out. On an application for strike-out or summary judgment, the court must scrutinise whether the allegations disclose something more than negligence. Witness statements prepared to address an evidential gap in existing proceedings fall within the immunity attaching to participation in the judicial process.

The claimant appealed against Master Davison’s order of 21 February 2020, which struck out his claim and granted summary judgment for the defendants. The claim arose from the collapse of a murder trial after the prosecution disclosed intelligence indicating that a prosecution witness might have possessed and fired a gun during the incident.

The claimant alleged that the Crown Prosecution Service had deliberately or recklessly failed to disclose the intelligence, causing prolonged detention and loss. He accepted that the police had discharged their duty by passing the material to the CPS, and that no claim for malicious prosecution was available. He also challenged the Master’s conclusion that witness statements prepared during the investigation into the disclosure issue were protected by witness immunity.

The central questions were whether the pleaded non-disclosure could amount to misfeasance in public office and whether the witness statements fell within the immunity applicable to participation in judicial proceedings.

1. The appeal was dismissed. Master Davison had correctly struck out the claim and entered summary judgment for the defendants.

2. Misfeasance in public office requires a public officer, conduct in the exercise of public functions, targeted or untargeted malice, and foresight of the probability of damage of the type suffered. The requirements of malice and foresight are onerous. A claimant must plead and particularise both the relevant state of mind and the damage said to have been foreseen. The court applied the principles in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1.

3. The admitted non-disclosure was an error, but the material’s significance would not necessarily have been obvious to the reviewing prosecutor in January 2012. The defence statements had not been served, the issues had not been refined, and the reliability and source of the intelligence were uncertain. To be arguable, the claim needed something more than the failure itself: it needed a basis for concluding that no reasonable prosecutor in that position could have regarded immediate disclosure as unnecessary. That basis was absent.

4. The explanation that the link between the intelligence and the prosecution witness was not immediately apparent had not been challenged as dishonest or false. Once that genuine explanation was accepted as capable of accounting for the non-disclosure, the pleaded case did not rise above negligence or want of care. The court endorsed the application of Thacker v Crown Prosecution Service CA, 16 December 1997 (unrep), whose caution against dressing up negligence as malice applied with equal or greater force to misfeasance.

5. The claimant’s alternative complaint concerning statements by prosecution witnesses was barred by witness immunity. Statements prepared to address a lacuna in the evidence and assist the prosecution’s enquiries formed part of the evidence being presented to the jury and therefore fell within the rule in Marrinon v Vibart (1963) 1 QB 528.

• High Court (Queen's Bench Division): Master Davison struck out the claim and granted summary judgment for the defendants on 21 February 2020.
• High Court (Queen's Bench Division): Permission to appeal was granted by Stewart J on 26 February 2021. Martin Spencer J dismissed the appeal and upheld the Master’s decision.