THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The discussion yesterday of the decision in Aven & Ors v Orbis Business Intelligence Ltd  EWHC 523 (QB) gives rise to review cases on pleading a defence, in particular the important distinction between a “denial” and a “non-admission”. It is important that litigators know the rules here, as the Aven case shows, there can be significant consequences for a defendant who fails to comply.
THE DIFFERENCE IN A NUTSHELL
- If you “don’t admit” something in a defence you require the claimant to prove it.
- If you “deny” something, your case is that you have a positive case to counter the claimant’s assertion.
- If you deny something in the defence then you have to state the reasons for the denial.
- If you are denying something and putting forward a different version of events then you have to say why.
THE RULES: CPR 16
The rules could not be simpler and clearer on this point. CPR 16.
“16.5 (1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and (c) which allegations he admits.
(2) Where the defendant denies an allegation –
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.”
CLEAR WARNING FROM THE COURT OF APPEAL: DEFENDANT HAS A POSITIVE DUTY TO ADMIT OR DENY PLEADED ALLEGATIONS
In SPI North Ltd v Swiss Post International (UK) Ltd & Anor  EWCA Civ 7 the Court of Appeal carried out a close analysis of the rules relating to pleading a defence. In particular the drafting of a “non-admission”
“Continuing use of the language of non-admission, convenient though it may be, must not be allowed to blur the distinction, or still less to encourage a reversion to the bad old days when a defendant could get away with a stonewalling defence full of indiscriminate non-admissions. Clearly, a defendant is now under a positive duty to admit or deny pleaded allegations where he is able to do so, and he may only put the claimant to proof of a fact where he is unable to admit or deny it.”
A “DEFENCE STRAIGHT OUT OF THE 1970s”
Mr Justice Coulson’s judgment Findcharm Ltd -v- Churchill Group Ltd  EWHC 1109 (TCC) has gained some attention for the
“In contrast to Findcharm’s detailed pleaded claim, Churchill’s defence could not be more basic. It is a combination of bare denials and non-admissions of the kind that the Civil Procedure Rules was designed to sweep away. It is, bluntly, an insurer’s defence straight out of the 1970’s. For example, despite the fact that the explosion happened in its hotel, Churchill does not even formally admit the cause of that explosion.”
A DEFENDANT CANNOT ATTEMPT ANY HALF WAY HOUSE: THE DIL CASE: AN “OPAQUE” DEFENCE
The difference between an admission and denial was explored in detail by Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis  EWHC 2184 (QB)
In the Dil case the claimants brought a case alleging that the defendant had acted unlawfully in allowing undercover police officers to enter into sexual relationships with environmental campaigners. The defendant denied the allegations but the defence was uninformative.
The pleaded Defence
The Defence says very little about what the defendant’s case would be at a trial. It includes the following:-
“3. As the claimants know, the defendant’s policy is neither to confirm nor deny (“NCND”) allegations concerning undercover police operations.
4. The purpose of the NCND policy is to protect undercover officers and to uphold the effectiveness of operations and the prevention and detection of crime. The NCND policy must be adhered to if it is to have its intended protective effects.
5. The defendant adopts and applies that policy in relation to the factual allegations made by the claimants in these proceedings.
6. It is neither confirmed nor denied that the individuals mentioned in paragraph 1 of the Particulars of Claim were police officers; that (even if they were police officers) they served with the Metropolitan Police Service; that they were part of the Special Demonstration Squad; that they ever used a false identity; or that they took part in any intimate or sexual relationship with any of the claimants.
7. In any event, it is denied that the defendant is liable for the actions complained of for the further reasons set out below.”
The defence then goes on to deal with (or, it might be said, not deal with) the individual cases. In answer to the claims of DIL and Helen Steel there is a detailed plea raising limitation, and in DIL’s case an allegation that the defendant is not liable because on her own case DIL continued her relationship with “Jim Sutton” even after he had disclosed his true identity to her in 2001 (a plea which lawyers have traditionally labelledvolenti non fit iniuria). With these exceptions, the pleading in the individual cases is entirely opaque. An example is in the case of RAB, described as the Sixth Claimant, where the Defence reads:-
“15. As set out above, the Sixth Claimant’s allegations about “Mark Cassidy” are neither confirmed nor denied.
16. Save as aforesaid, the Sixth Claimant is required to prove the matters set out at 34-45 of the Particulars of Claim.
17. For the reasons set out below it is denied in any event that the Defendant is liable for the torts of deceit, misfeasance, assault/battery or negligence (or at all).”
The Defence goes on to plead that the claimants’ allegations “in so far as they relate to the SDS or the alleged actions of alleged undercover officers are neither confirmed nor denied”. As to the causes of action relied on by the claimants: it is denied that the acts alleged constituted the tort of deceit; in respect of the claim in assault or battery it is argued that, if the claimants voluntarily engaged in sexual activity with individuals who had lied about their identities and occupations, consent would not as a matter of law have been vitiated by such alleged deception; and in answer to the claim in negligence the existence of a duty of care is disputed.
“29. The allegation that officers of the Defendant expressly authorised or tacitly acquiesced in the formation of the sexual relationships alleged by the Claimants is neither confirmed nor denied.
30. The Claimants are required to prove that officers of the Defendant (a) acted unlawfully and (b) acted with malice, or knew that the unlawful acts (or any of them) would probably injure the Claimants. The Claimants are required to prove, in particular, that:
30.1 officers foresaw that the Claimants would be damaged by a sexual relationship and/or were recklessly indifferent to the risk of such damage.
30.2 officers knew that it was unlawful for undercover officers to enter into intimate sexual relationships with individuals, and/or were recklessly indifferent as to whether it was unlawful for them to do so.”
CAN A DEFENDANT MERELY BE “UNABLE TO CONFIRM OR DENY”?
For the claimants Phillippa Kaufmann QC submits that a defendant is only “unable” to confirm or deny the truth of an allegation if he does not know whether it is true or not. I accept that this is by far the most common reason for an inability to plead to an allegation, but I do not consider that the rules should be interpreted in such a literal way. As Ms Carss-Frisk points out, Lord Woolf’s original proposal was that a defendant should only be permitted neither to admit nor deny an allegation where the reason was because he did not know whether or not it was true; but that restrictive wording does not appear in CPR 16.5(1).
In any event, there must be cases in which a defendant can properly refuse on policy grounds either to admit or to deny a pleaded allegation the truth of which he knows perfectly well. Suppose an individual is charged with possession of Class A drugs with intent to supply following a police raid on his home. Wishing to know the identity of the informant who told the police about his activities, he brings a civil claim against the police and alleges that the informer is his neighbour across the road. The defendant Chief Constable is able to confirm or deny that allegation but declines to do either, relying on the NCND principle. He would, on those facts, be entitled to do so.”
But note the very limited public interest limitation.
THE JUDGE’S OBSERVATIONS ON THE NEED TO PLEAD A FULL DEFENCE
“One of the most important recommendations made by Lord Woolf in his Access to Justice report in 1996 was that pleadings should not be technical documents, and in particular that “the Defence will set out the defendant’s detailed response to the claim and make clear the real issues between the parties”
THE ISSUE IN THE DIL CASE
The issue in the Dil case was whether the defendant could merely plead a “cannot deny or confirm” defence to the allegations made. The defendant contended that the public interest in protecting the identity of informers meant that he was entitled to plead the action in an “opaque” manner.
THE DECISION IN THE DIL CASE: THE DEFENDANT MUST PLEAD ITS CASE FULLY IN RELATION TO THOSE OFFICERS WHOSE IDENTITY WAS ALREADY IN THE PUBLIC DOMAIN
“I derive the following guidance from the authorities:
(1) There is a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it is for the court to balance the public interest in the NCND policy against any other competing public interests which may be applicable (McNally; Mohamed and CF v SSHD).
(2) There is a well-established exception in a criminal trial where revealing the identity of the informer or the UCO is necessary to avoid a miscarriage of justice (Marks v Beyfus; R v Agar): this does not arise in the present case.
(3) Even where an individual informant or UCO has self-disclosed, the police (or the Secretary of State) may nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper police investigations, assist criminals, or reveal police operational methods. (Savage; Carnduff).
I will deal first with the general allegation and then with the specific ones. The general allegation is that officers of the MPS, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the MPS wished to observe; and (although it will no doubt be a matter for legal argument at trial how significant this issue is) that this was authorised or acquiesced in by senior management.
I do not accept that there is now, in 2014, any legitimate public interest entitling the Commissioner to maintain the stance of NCND in respect of this general allegation. The claims relate to alleged activities of officers of the SDS prior to its disbandment in 2008. It is not suggested that the use of long term sexual relationships of this kind as a police tactic is continuing. It is also not argued that it would be appropriate now, nor that (if it did occur) it was appropriate then. The Chief Constable conducting the Operation Herne investigation has expressed in trenchant terms the view that if this did happen it was a “gross abuse”: I believe that most people would agree with him. Whether the facts set out by the claimants, if proved, establish one or more of the pleaded causes of action as a matter of law is of course a different issue, and a matter for argument at the trial.
One of the justifications for NCND is that police operational methods should not be revealed. This is in my view clearly intended to apply to operational methods which continue to be in use or are likely to be used in future. Moreover, just as (in the well-known words of Page Wood V-C in Gartside v Outram (1856) 26 L.J.Ch 113) “there is no confidence as to the disclosure of iniquity”, so there can be no public policy reason to permit the police neither to confirm nor deny whether an illegitimate or arguably illegitimate operational method has been used as a tactic in the past.
I therefore rule that the defendant cannot rely on NCND to avoid answering the general allegation to which I have referred above..
I turn to the specific allegations that the individual men with whom the Claimants had relationships were undercover officers. All have been publicly named in the media. Some have also self-disclosed; some have been the subject of official confirmation. Self-disclosure is relevant, but it does not have the same significance as official confirmation by the police force concerned, HMIC, a Minister or a court. Mr Creedon, in commenting on the self-disclosure by Peter Francis, declined to confirm or deny whether he had ever been an undercover police officer. He wrote:
“To avoid placing any individual in danger, this [NCND] principle is paramount. To comment either way would raise clear inferences in other cases where no comment can be made. This position is essential to ensure that danger and additional risk can be avoided.”
“Jim Sutton” has been publicly named as an UCO by the Commissioner in person. (Commander Martin evidently regards this as a mistake, but he is not the defendant in this claim.) In the two cases involving him, reliance on the NCND policy to avoid admitting that he was an UCO is simply unsustainable.
In the case of “Bob Robinson” I also consider that NCND can no longer be relied on. He has not only self-disclosed (using his real name of Bob Lambert), but has been publicly named by the IPCC as a former MPS officer; and he is no longer in the police service.
However, in the cases of “Mark Cassidy” and “John Barker” I take a different view. Neither of them has self-disclosed nor been officially named as an undercover officer, although each has been named publicly in a variety of media (with a photograph of each man in the Guardian). In those circumstances I consider that the Commissioner should not be required to admit or deny whether either of them is an undercover officer or has the real name alleged. This may only postpone the day of reckoning, in the sense that if the case proceeds and no evidence is adduced to challenge that put forward by RAB and Helen Steel respectively, it appears likely that the respective factual cases put forward by them will be accepted. As I have already noted, the consequences of that in law would be a matter for argument in due course.
In accordance with the procedure envisaged in the order of Tugendhat J, the Commissioner will have 28 days from the handing down of this judgment in which to amend his Defence in order either to admit or deny that: (a) officers of the MPS, as part of their work as undercover officers and using false identities, engaged in long term intimate sexual relationships with those whose activities the MPS wished to observe; (b) this was authorised or acquiesced in by senior management; (c) “Jim Sutton” was such an officer; and (d) “Bob Robinson” was such an officer. The time for disclosure of documents, which was to have expired on the second day of the hearing before me, will be extended until 56 days from the handing down of judgment.”
THE CONSEQUENCE OF FAILING TO FILE A FULLY PARTICULARISED DEFENCE
The judge rejected an argument that a failure to fully plead the case should lead to the defence being struck out. Rather, if the defendant failed to plead a fully particularised case within the time specified he was to be taken to admit them.