Andrew Hale-Byrne v The Secretary of State for Business and Trade & Anor

Summary judgment may be granted where the claimant’s case has no realistic prospect of success and there is no other compelling reason for trial. The court must avoid a mini-trial, but need not accept unsupported or contradicted assertions at face value. It must consider both the evidence currently available and evidence reasonably expected to be available at trial. Where the pleaded case identifies the wrong alleged actor, and the evidence does not connect the defendants to the relevant conduct, the claim may properly be dismissed. A possible inference cannot substitute for evidence of an essential element. The court should decide a short legal or evidential point summarily where the necessary material is available and no realistic prospect of success remains.

The claimant sought damages, including aggravated and exemplary damages, against two Secretaries of State. He alleged that civil servants in the defendant departments falsely identified him to the police as the source of leaked diplomatic material, caused or influenced his arrest, and informed the press of it for improper purposes. The claim relied on misfeasance in public office, alleged breaches of the GDPR and the Convention, misuse of private information and related duties.

The defendants applied for summary judgment under CPR 24.3. The claimant also sought to join Lord Darroch as a third defendant. The central issue was whether the claimant had a realistic prospect of establishing the essential factual allegations against the existing defendants, and whether there was any other compelling reason for a trial.

1. Summary judgment granted. The claimant’s case depended on proving that civil servants in one of the defendant departments informed the police that he was the source of the leaks. His own assertion was unsupported by direct knowledge. The SO15 briefing note identified the UK security services, not either defendant department, and there was no pleaded case that the defendants used the Security Service or another agency as an agent or conduit. There was therefore no evidence supporting this essential element.
2. The court applied the principles summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). A realistic prospect is more than an arguable or fanciful case, but the court must not conduct a mini-trial. It must consider evidence available at the hearing and evidence reasonably expected at trial. Unsupported assertions may be rejected where the material shows that they have no real substance.
3. Even assuming that the claimant could establish that he was not the source of the leak, the OPEN evidence gave him no more than a weak but non-fanciful prospect on that issue. The circumstantial matters relied on added little weight. The police decision to arrest had been made before the newspaper’s right-of-reply letter, defeating the suggested inference that the letter prompted the arrest. There was also no evidence that either defendant department informed the media of the arrest.
4. The CLOSED evidence reinforced the conclusion reached on the OPEN evidence. There was no other compelling reason for a trial. The claimant’s request for permission to amend or join parties was procedurally inadequate and came too late. The application to join Lord Darroch was dismissed as academic and, in any event, would have failed because there was no evidence that he influenced the arrest and he was not acting in public office at the relevant time.

The court granted summary judgment for the defendants and dismissed the application to join Lord Darroch. The parties were to address the form of order.

First-instance decision. The judgment records earlier orders concerning closed material applications, including a declaration by Chamberlain J and an order by Bourne J permitting the defendants to withhold sensitive material.