Keyser Khan v Chief Constable of Devon & Cornwall Police

Pre-action interim orders for preservation, inspection, disclosure or injunction are exceptional. Under Senior Courts Act 1981 section 33 and CPR 25.2(2), the applicant must show urgency or that relief is otherwise desirable in the interests of justice. The proposed proceedings should normally be imminent and precisely identified.

For preservation or inspection relief, the evidence must establish a real, rather than fanciful, risk that relevant material will be destroyed, concealed or tampered with. Mere distrust, suspicion or past administrative error is insufficient. Pre-action disclosure must also satisfy CPR 31.16. The High Court cannot use pre-action relief to circumvent the procedures or jurisdiction of the County Court or Crown Court.

The claimant, who operated a business importing and selling bladed articles, sought pre-action orders against the defendant police force. He requested preservation of seized exhibits, third-party forensic inspection, disclosure of access logs and CCTV, and an injunction excluding specified officers from the exhibits.

The proposed claims included malicious prosecution, misfeasance in public office and compensation relating to destroyed swords. Existing compensation claims were proceeding in the County Court, while any alleged breach of a Crown Court disclosure order had not been determined there.

The central issue was whether the High Court should grant exceptional interim relief before the proposed High Court proceedings had been issued.

The application was refused.

1. The High Court had no jurisdiction to grant interim orders for the existing County Court claims. Nor was it the proper forum for allegations concerning compliance with a Crown Court order. Pre-action relief could be considered only in relation to the threatened High Court proceedings.

2. Under section 33 of the Senior Courts Act 1981, CPR 25.2(2) and CPR 31.16, pre-action relief is available only in specified circumstances. The proposed proceedings should normally be imminent, and their precise nature should have been identified. A general statement that claims may be brought in the future is insufficient.

3. The controlling practical question for preservation, inspection and related disclosure was whether there was a real, rather than fanciful, risk that evidence would be destroyed, concealed or tampered with if orders were not made. Such relief is exceptional, particularly where proceedings have not begun. The applicant had to establish at least a prima facie case supporting that risk.

4. The claimant’s suspicions, allegations concerning certificates, the destruction of six swords by mistake and his lack of trust in the police did not establish the necessary risk. The evidence of Detective Inspector LeFort, including assurances that relevant material would be retained, was not displaced. The court did not determine the ultimate merits of any proposed claim.

5. The request for third-party forensic inspection was additionally defective because it did not identify the proposed experts or safeguards. The proposed exclusion of officers from access to exhibits was unlike the usual interim injunction described in American Cyanamid v Ethicon and was unsupported by an arguable evidential basis. The application for all pre-action interim relief was therefore refused.