Anthony Wilson & Ors v Department for Transport

The claimants sued the Department for Transport in malicious prosecution and misfeasance in public office arising from the collapse of a criminal prosecution for fraudulent trading (s.993 Companies Act 2006) and related decisions to re-open regulatory matters under the Motor Vehicles (Replacement of Catalytic Converters and Pollution Control Devices) Regulations 2009. The claimants alleged there was no reasonable and probable cause to prosecute, that the prosecution was motivated by an improper purpose (to appease competitors who had issued judicial review proceedings), and that the DfT and its investigators acted in bad faith.

The court analysed the factual history (VCA investigation, judicial review threats, a fresh DVSA inquiry, engagement of prosecuting counsel, charging advice, and the later collapse of the Crown Court prosecution because of disclosure failures). It applied the law on malicious prosecution (objective and subjective elements of reasonable and probable cause; reliance on counsel) and misfeasance in public office (abuse of power + subjective bad faith; targeted and untargeted malice).

Key legal conclusions: (i) a decision to re-investigate after the VCA report was a reasonable response to the judicial review risk and to legal advice that the VCA inquiry might be insufficient; (ii) the DVSA investigation uncovered material (including supplier statements from AS and ECT) that, objectively and subjectively as known to the prosecutors, provided a case fit to be laid before a court; (iii) the prosecuting counsel's written charging advice and the authorised decision to prosecute satisfied the relevant tests for reasonable and probable cause; (iv) the prosecution’s collapse was caused by serious disclosure failings, but those failings did not establish malice or deliberate bad faith by the DfT; (v) the torts alleged were not made out and the claims were dismissed.

The claimants were senior officers and the company Klarius Products Ltd (KPL). In December 2014 KPL reported or became the subject of allegations that some catalytic converters it sold were non-type approved; the VCA (vehicle approvals agency) investigated and concluded no further enforcement action was required after remediation and a recall. Two competitors pressed for further action and brought judicial review claims challenging the adequacy of the VCA investigation. After advice that the VCA inquiry might not be defensible, the DfT commissioned a new investigation by the DVSA (Operation Fox). The DVSA investigation obtained supplier evidence from Spain (AS) and the United States (ECT) and engaged counsel. Counsel provided a charging advice in January 2019 recommending prosecution for fraudulent trading (s.993 Companies Act 2006); the authorised prosecutor (PLS officer) approved charges. The criminal prosecution later collapsed in late 2019 because of admitted and serious disclosure failures; not guilty verdicts were recorded on that basis and large costs against the DfT followed.

Nature of claim and relief sought: civil claims for malicious prosecution and misfeasance in public office, seeking damages (general, aggravated/exemplary and special loss) for reputational and business loss arising from the failed criminal prosecution.

Issues framed:

• whether there was reasonable and probable cause at the time of charging and during the prosecution (subjective honest belief and objective sufficiency of evidence);
• whether the DfT or its investigators acted with malice or an improper purpose (notably to appease judicial review claimants / competitors);
• whether the VCA report should have been decisive or adequately considered;
• whether prosecuting counsel and the authorised decision-maker were properly informed;
• whether admitted disclosure failures and conduct of the prosecution demonstrated bad faith or an unlawful exercise of public power.

Court’s reasoning (concise): the court accepted that the VCA report showed cooperation by KPL and remediation, and that the VCA did not itself pursue prosecutions of this type. Faced with detailed pre-action and judicial review correspondence and independent legal advice that the VCA inquiry might be vulnerable, it was reasonable for the DfT to commission a fresh, independent DVSA investigation rather than simply rest on VCA material. The DVSA investigation produced evidence from suppliers that supported a prosecutorial case which counsel, after a sustained engagement, advised was fit to be tried. The authorised prosecutor (a PLS decision-maker) reviewed counsel's charging advice and signed off the prosecution. The court concluded that the dual test for reasonable and probable cause was satisfied: prosecutors had an honest belief and there was an objectively arguable case fit for trial. The collapse of the criminal prosecution resulted from serious procedural (disclosure) failings; although professionally embarrassing and consequential, these did not prove that the prosecution had been pursued in bad faith or for an improper collateral purpose. The court therefore rejected the tort claims.

The judgment notes the rarity of civil remedies against public prosecuting bodies and emphasises that an acquittal or termination of a prosecution does not automatically found civil liability in malicious prosecution or misfeasance in public office.

The claim is dismissed. The court held that (i) the decision to undertake a fresh DVSA investigation in the wake of judicial review threats was a reasonable response to independent legal advice and concerns about the VCA inquiry; (ii) the DVSA investigation produced material which, as assessed by experienced prosecuting counsel and the authorised prosecutor, provided a case fit to be laid before the court; (iii) the subjective and objective elements of "reasonable and probable cause" were therefore satisfied at the time of charging and during the prosecution; (iv) disclosure failures caused the collapse of the criminal prosecution but did not establish malice, bad faith or misfeasance by the DfT; accordingly the torts of malicious prosecution and misfeasance in public office were not made out and the civil claims fail.