Kuldeep Singh Mahal v The Commissioner of Police for the Metropolis

A claim cannot be used to mount a collateral attack on an earlier judicial review decision concerning the same issue. Such a claim is an abuse of process and may be struck out where no proportionate alternative exists.

Summary judgment and strike-out applications may involve a common test where the pleading itself has no realistic prospect of success. The court must avoid a mini-trial, but may decide a short point of law where the necessary material is before it. The police generally owe no private law duty of care for failing to investigate or prosecute. Claims based on unrecognised causes of action, premature data-access complaints, or plainly inapplicable Convention rights may be struck out or summarily dismissed.

The claimant brought a £1 million civil claim against the Commissioner of Police arising from the police response to an alleged assault by his half-brother. The police investigated the incident, arrested and interviewed the half-brother, and decided not to refer the matter to the Crown Prosecution Service because the evidence did not provide a realistic prospect of conviction. A Victim’s Right to Review process and a professional-standards complaint did not alter that outcome.

The claimant subsequently brought judicial review proceedings challenging the police decision. Permission was refused, including on the grounds that the claim was out of time, unarguable, and did not establish irrationality or procedural unfairness. He then advanced civil claims including breach of duty, negligence, contract, tort, data-protection breaches and alleged breaches of Articles 1, 3 and 5 of the Human Rights Act 1998. The issue was whether those claims should proceed to trial.

1. Disposition. The claimant’s case was struck out in substantial part and summary judgment was entered for the defendant on the data-protection claims. No claim had a realistic prospect of success and there was no compelling reason for a trial.
2. The claims challenging the decision not to prosecute raised the same issue decided in the judicial review proceedings. They were collateral attacks on earlier court decisions and therefore an abuse of process. Applying the two-stage approach in Asturion Foundation v Alibrahim, the proportionate sanction was strike out because no lesser measure would address the abuse.
3. Claims alleging negligent misstatement or misrepresentation disclosed no reasonable grounds. English law did not recognise a duty by the police to compensate a member of the public for an alleged indication that a prosecution would occur. Nor could the court create a contract requiring the police to prosecute.
4. The claims for malfeasance and misfeasance were bound to fail because they sought to reopen issues already determined. Non-feasance was unavailable because the alleged tort was not recognised in England.
5. The court applied the principles governing summary judgment and strike out. A realistic prospect differs from a fanciful one, but the court must not conduct a mini-trial. It may decide a short point of law where the necessary evidence is available. The claimant’s factual assertions are ordinarily assumed to be provable for strike-out purposes, subject to demonstrable inconsistency with the evidence.
6. There was no general common-law duty of care owed by the police for failure to act or investigate. The alleged hospital and victim-assessment duty therefore disclosed no recognised cause of action.
7. The data-protection claims were premature. The claimant had failed to provide requested proof of address in response to his subject access request. Summary judgment was therefore appropriate.
8. Article 1 of the Human Rights Act 1998 did not provide a claim of the kind pleaded. Article 3 was not engaged by dissatisfaction with an investigation and decision not to charge, and Article 5 did not impose a duty to obtain a restraining order for personal protection. Those claims were struck out.

This was a first-instance decision on the defendant’s application for strike out or summary judgment. Earlier judicial review proceedings concerning the police decision had been refused on the papers and at a renewed oral permission hearing, but those decisions were not appealed in this claim.