Richard Hughes v HMRC & Anor

For malicious prosecution, reasonable and probable cause requires an honest belief by the prosecutor that there is sufficient evidence for a prima facie case. A case need not be ready for trial immediately after charge. Deficiencies in investigation or disclosure do not themselves establish want of cause where the existing evidence can support the prima facie case. Malice requires bad faith or reckless indifference to the consequences of an unlawful act. Negligence, incompetence, accelerated charging to meet an external deadline, and an ulterior motive which did not affect the charging decision are insufficient. Misfeasance in public office likewise requires bad faith. Statutory duties of disclosure or inquiry do not, without more, create private-law rights of action.

The appellant was prosecuted for conspiracy to cheat and cheating the Revenue. The criminal charges were dismissed by HH Judge Drew QC in May 2017. The appellant subsequently brought claims against HMRC and the CPS for malicious prosecution and misfeasance in public office, including rights assigned by two companies.

Mr Justice Jay granted summary judgment for the defendants, holding that the claims had no real prospect of success and that the assignments were void as contrary to public policy: [2024] EWHC 1765 (KB). The appellant sought permission to appeal on nine grounds, principally concerning reasonable and probable cause, investigation and disclosure, malice, and misfeasance.

The court refused permission to appeal.

1. Malicious prosecution. Reasonable and probable cause requires the prosecutor to have an honest belief that there is a sufficiency of evidence to prosecute. The phrase fit case to be tried refers to that evidential sufficiency. It does not require the prosecution to be ready to place the case before a jury on the day after charge. The criminal process is multi-stage, and the prosecution case may develop after charging.
2. The objective reasonable-inquiry passages relied on in Abbott v Refuge Assurance Co Ltd [1961] 1 QB 432 at 454 and Glinski v McIver [1962] AC 711 at 768 arose where the prosecutor was also the investigator. They did not require the CPS, in this case, to investigate HSBC before charging. The absence of HSBC-related evidence could not affect reasonable and probable cause unless it meant that the prima facie case against the appellant could not be established. The judge was entitled to find that such a case could be established without it. Coudrat v Commissioners of HMRC [2005] EWCA Civ 616 and Rudall v CPS [2018] EWHC 3287 (QB) supported that approach.
3. Malice. Malicious prosecution requires bad faith or, at least, reckless indifference to the consequences of an unlawful act. The paradigm is proceedings brought to secure an extraneous benefit rather than to determine whether the accused committed the offence. Negligence or incompetence is insufficient. Charging more quickly than wished in order to meet an external deadline was not unlawful. An ulterior motive concerning HSBC could have been relevant only if the failure to investigate had infected the charging decision. The participation of independent counsel was a significant, though not determinative, factor.
4. Misfeasance in public office. The governing principles, identified in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, require bad faith, together with either an intention to injure or knowledge of, or subjective recklessness as to, the unlawfulness of the act and the probability of injury. Alleged duties under the Prosecution of Offences Act 1985 and the Criminal Procedure and Investigations Act 1996 did not generate private-law rights of action. The pleaded case could not rise above negligence and incompetence, which could not establish bad faith: Thacker v CPS (1997). Extending the tort beyond its current limits was therefore unnecessary.
5. The court did not need to decide the validity of the assignments because the substantive claims could not succeed. It nevertheless agreed with the judge’s analysis and overarching conclusion on that issue. Permission to appeal was refused.

• Court of Appeal (Civil Division), [2025] EWCA Civ 113: permission to appeal on nine grounds was refused.
• High Court of Justice, King’s Bench Division, [2024] EWHC 1765 (KB): summary judgment was entered for HMRC and the CPS because the claims had no real prospect of success. The assignments were also held void and unenforceable as contrary to public policy.