BCLI v Commissioner of the Police for the Metropolis

A claimant cannot avoid the rule against abusive repeat proceedings by discontinuing an earlier claim and later issuing a claim based on a different cause of action, where the later claim concerns the same matter and could and should have been raised earlier. The court must make a broad, merits-based assessment of abuse, considering public and private interests and whether the defendant is being vexed twice.

For limitation, knowledge concerns the significant injury, its factual attribution and the defendant’s identity. Knowledge of the legal consequences or actionable character of known facts is unnecessary. A misfeasance claim also requires abuse of public power accompanied by subjective bad faith, which must be specifically pleaded against identified officers.

The claimant brought a personal injury claim against the Commissioner for alleged misfeasance in public office arising from the handling of historic sexual-abuse allegations reported to the police in 2011.

She had previously issued a claim under section 7 of the Human Rights Act 1998. After proposing to add misfeasance, she accepted a settlement offer to discontinue the proceedings and bring the matter to an end, with each side bearing its own costs. She subsequently issued the present claim based on misfeasance.

The defendant applied to strike out the claim as abusive and out of time, and also challenged the pleading of bad faith. The claimant sought an extension of time and permission to amend.

1. Abuse of process. The claim was struck out as res judicata and abusive. Applying the broad, merits-based approach in Henderson v Henderson, Johnson v Gore Wood and Aldi Stores Ltd v WSP Group plc, the court considered the public interest in finality and the private interest in protection from repeated litigation. The second claim concerned the same parties, facts, injury and heads of loss as the first claim. The misfeasance cause of action had been contemplated before discontinuance and could and should have been pursued in the first proceedings.
2. The settlement offer to draw a line under the matter encompassed all claims arising from the police investigation, including the proposed misfeasance claim. The claimant knew that basis of settlement and accepted it without reserving a right to issue fresh proceedings. Starting the second claim was therefore a clear abuse. De Crittenden v Bayliss and Warburton v Chief Constable of Avon and Somerset supported that conclusion.
3. Limitation. A personal injury claim in misfeasance was subject to the three-year period in section 11 of the Limitation Act 1980. Under section 14(1), the claimant knew in 2011 that her injury was significant, that it was attributable to the police decision, and the identity of the defendant. Knowledge that the conduct was legally actionable was irrelevant. Time therefore began to run in 2011 and expired in about August 2014.
4. The application under section 33 of the Limitation Act 1980 was determined at the applications hearing. Applying the broad balance of prejudice and proportionality required by Carroll v Chief Constable of Greater Manchester Police, the claimant’s thin prospects and the loss of important documentary and witness evidence weighed heavily against an extension.
5. Misfeasance and pleading. The tort requires public office, exercise of public power, abuse of power accompanied by subjective bad faith, duty, causation, damage and remoteness. Dishonesty is required for the relevant form of misfeasance. The pleading failed to identify adequately the officer or officers who acted in bad faith or the acts said to constitute bad faith. It pleaded negligence rather than misfeasance. Permission to amend was refused. The claim was struck out on each of the additional grounds.

First-instance decision. The claim was struck out as abusive, out of time and inadequately pleaded. Permission to amend and an extension of time were refused.