SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: HIDING AN INTENTION TO START FRESH PROCEEDINGS IS A HIGHLY DANGEROUS STRATEGY

In BCLI v Commissioner of the Police for the Metropolis [2024] EWHC 3018 (KB) HHJ Karen Walden-Smith (sitting as a Judge of the High Court) struck out a claimant’s second action against the defendant police force.  The action failed because, on its facts, it was an abuse of process. The claimant had accepted an offer to discontinue the first action, with no order for costs, whilst intending to issue a second action.  Further the claimant failed on the issue of limitation, Section 33 and in an application to amend the Particulars of Claim.

“… the claimant’s representatives have said that they knew that the defendant intended to finalise all litigation and accepted the offer on that basis while, on their own account, hiding an intention to start fresh proceedings by not informing the defendant that it was her intention to continue despite the settlement. The claimant thereby benefitted from avoiding the original claim being struck out with the costs consequences that would have followed from that strike out, knowing that the claimant did not intend to abide by the basis of the settlement offer being made. In my judgment that is a clear abuse. The claimant has brought the claim against the defendant for a second time, with the new cause of action being one that had been raised before agreeing to discontinue against the defendant. That is a clear abuse as the defendant is being “vexed twice”.

THE CASE

The claimant suffered sexual abuse by a number of men between 1966 and 1976 when she was aged between 3 and 13 years.  In 2011 she reported the matter to the police. In February 2023 she issued proceedings against the police alleging that there had been a deficient investigation into her complaints. That action was brought pursuant to section 7 of the Human Rights Act 1998.

THE DISCONTINUANCE OF THE FIRST ACTION

In the first action the claimant served an application to amend which was not pursued. The first action was withdrawn by the filing of a notice of discontinuance on the 8th February 2024 “together with a consent order recording a settlement agreement reached between the claimant and the defendant after the offer on 31 January 2024 that the defendant was prepared to “draw a line under this matter by bearing their own costs in the event that the claimant agrees to withdraw this claim”.

THE SECOND ACTION

On the 13th March 2024 the claimant issued a second set of proceedings seeking damages for personal injury in the tort of misfeasance of public office.   The defendant applied to strike out this action.

THE ISSUES BEFORE THE COURT

The judge had to determine (i) whether the second action was an abuse of process and subject to res judicata; (ii) whether the second action was brought in time; (iii) if it was in time whether the claimant’s application under Section 33 of the Limitation Act 1980 should succeed; (iv) whether the claimant’s case was pleaded properly and whether the claimant should be given permission to amend.  The judge decided against the claimant on all four of these issues.

THE SECOND ACTION WAS AN ABUSE OF PROCESS

It was held that the second action was an abuse of process. The first action had been discontinued before the claimant’s application to amend was heard.

1. 1. It was open to the claimant to amend the original particulars of claim and argue that the amendment should be permitted at the same hearing as the defendant’s applications to strike out. The claimant and the defendant had discussed such an amendment and the defendant had agreed that the application to amend should be heard at the same time as the application to strike out. It is not correct, as was suggested by claimant’s counsel, that the defendant was insistent that the strike out needed to be heard in advance of any application to amend. The claimant decided to discontinue on 8 February 2024 rather than have her application to amend considered by the court on 26 February 2024, together with the defendant’s strike out applications. As in De Crittenden v Bayliss [2005] EWCA Civ 1425, where Parker LJ, giving the judgment of the Court of Appeal, found there was no basis for challenging the judge’s conclusion that the claimant in that case could and should have amended his pleading in the first action, the claimant has been represented throughout with counsel and solicitors. She knew of her potential claim in misfeasance but decided not to amend the original pleading, but instead take the advantage of the “drop hands” offer on costs.

1. 1. In Warburton v Chief Constable of Avon and Somerset [2023] EWCA Civ 209, the claimant brought a second claim which was factually identical to the first but raised a different cause of action. That different cause of action had been raised in a proposed amended pleading but, before amendment, the parties agreed to settle with the intention to settle the whole claim. In the judgment of Males LJ he set out that the decisive fact was that Mr Warburton knew that the offer was intended to settle all claims, pleaded and not pleaded.

1. 1. In this case, the claimant’s representatives have said that they knew that the defendant intended to finalise all litigation and accepted the offer on that basis while, on their own account, hiding an intention to start fresh proceedings by not informing the defendant that it was her intention to continue despite the settlement. The claimant thereby benefitted from avoiding the original claim being struck out with the costs consequences that would have followed from that strike out, knowing that the claimant did not intend to abide by the basis of the settlement offer being made. In my judgment that is a clear abuse. The claimant has brought the claim against the defendant for a second time, with the new cause of action being one that had been raised before agreeing to discontinue against the defendant. That is a clear abuse as the defendant is being “vexed twice”.

1. 1. The claimant has contended that the only reason the first claim could not proceed is because of the Supreme Court decision In Re Dalton [2023] UKSC 36. The Supreme Court held that the starting point for jurisdiction purposes for HRA claims ought to be that the HRA does not have retrospective application, and only applies from 2000 when the HRA came into force, but that under some circumstances an investigative obligation can “revive” if there was a “genuine connection” between the act, or inaction complained about, and the commencement of the HRA1998. That “genuine connection” would not normally be met outside a ten year period, or where there were compelling reasons, a further two years. It is said by the claimant that determination had a significant impact on the ability of the claimant succeeding in an HRA claim given the historic nature of the allegations of child sexual abuse and rape. That contention is not accepted by the defendant as the earlier decisions of the Supreme Court in In Re Finucane [2019] UKSC 7 and In Re McQuillan [2021] UKSC 55 had already settled that there needed to be a “genuine connection” (within ten or, exceptionally, twelve years) between the act, or inaction complained about, and the commencement of the HRA 1998.

1. 1. The claimant further contends that the additional disclosure that had been obtained subsequent to the commencement of the first claim meant that the merits of the misfeasance claim had increased but that cannot be a reason for her having agreed to discontinue and then start a new claim. The claimant knew the basis for her misfeasance claim before she consented to discontinue. Had she proceeded with an application to amend then she would have needed to deal with the application to strike out the HRA claim and the opposition to the new claim. By agreeing to discontinue and not revealing that she intended to start again, the claimant not only avoided dealing with the arguments against her at that time but benefitted from avoiding the costs that she would likely have been required to pay pursuant to the provisions of CPR 44.15(b).

1. The defendant has satisfied the burden of establishing that this claim is an abuse by being res judicata and, therefore, an abuse.

LIMITATION

The judge also found that the action was statute barred.

1. 1. It is contended on behalf of the claimant that she could not have known that the injury she sustained in 2011 was as a result of the action or inaction of the defendant’s officers in not investigating the allegation made. But that is, in fact, what is set out in the pleadings and her solicitor’s statement. She did know that the cause of her injury was the decision not to investigate further.

1. 1. The degree of certainty necessary to establish “knowledge” was set out by Lord Nicholls in Haward & Ors v Fawcetts [2006] 1 WLR 682 endorsing the approach of Lord Donaldson MR that:

“… knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence… In other words, the claimant must know enough for it to be reasonable to investigate further.”

and further, citing Blofeld J in Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114 with approval, the degree of detail required to have knowledge:

“…a plaintiff may have sufficient knowledge if she appreciates “in general terms” that her problem was capable of being attributed to the operation…”

and finally, with respect to who was responsible (the attribution test), Lord Nicolls said that

“time does not begin to run against a claimant until he knows there is a real possibility that his damage was caused by the act or omission in question.”

1. 1. It is clear from both Haward v Fawcetts and the Supreme Court decision in AB & Ors v Ministry of Defence [2012] UKSC 9 that a claimant does not need to appreciate all the details of the claim that they may later seek to bring against a defendant in order for time to run. It is sufficient that there is an understanding of the essence of the factual case upon which a later claim might be based. There is no requirement, by virtue of the wording of section 14 of the LA 1980, that there has been an actionable breach of a legal obligation.

1. 1. For the purposes of these applications, the defendant accepts that the claimant did not know that the advice she had received in 2011 was potentially actionable. However, that is not a relevant consideration for the purpose of determining when time starts to run. As Lord Nicholls set out in Haward v Fawcetts:

“Irrelevance of knowledge that the act or omission involved negligence

12. Difficulties may sometimes arise over the interaction of these “knowledge” provisions and the statutory provision rendering “irrelevant” knowledge that, as a matter of law, an act or omission did, or did not, amount to negligence: section 14A(9). By the latter provision Parliament has dawn a distinction between facts said to constitute negligence and the legal consequences of those facts. Knowledge of the former (the facts) is needed before time begins to run, knowledge of the latter (the legal consequences of the facts) is irrelevant. As Sir Thomas Bingham MR said in the clinical negligence case of Dobbie v Medway Health Authority [1994] 1 WLR 1234, 1242, knowledge of fault or negligence is not necessary to set time running. A claimant need not know he has a worthwhile cause of action.”

1. 1. In this matter, the claimant knew the necessary facts in 2011. The fact that she did not know the legal consequences of those facts is irrelevant. She was able to identify in 2011 that she might have a claim against the defendant. As a consequence, time started to run in 2011 and became time-limited pursuant to the provisions of section 11 of the LA 1980 in or about August 2014.

1. The additional information obtained by the claimant in 2022 when she spoke to other police officers and the letter on 19 July 2022 that acknowledged that the actions of the defendant’s officers was “unacceptable”, does not mean that time did not start to run when she had the necessary knowledge for the purposes of section 14 of the LA 1980.

AN UNSUCCESSFUL SECTION 33 APPLICATION

The judge also considered, and dismissed, the claimant’s application under Section 33.

1. 1. The claimant’s application is supported by witness evidence from her solicitor, Miss Barton, whereas the defendant relies upon the witness evidence of his solicitor, Mr Hough. The SOIT Log Book 202 of PC Eade has not been located and may no longer exist. That log book is plainly of central importance but it does appear that the matters recorded in that log book have also been recorded in the CRIS entries. There are further documents that have not been located, including police notebooks and action books and internal emails and correspondence. It is not possible to say what information those documents may contain, only that they are not available to either the claimant or the defendant. The CRIS reports do provide a record of some things that were happening and some of the decision making, but it is far from a complete record. Additionally, and more significantly, the police officer who appears to have been the decision maker, has not been traced despite two attempts. Further attempts could be made by the defendant to locate DS Dawson but it cannot be guaranteed that he can be found and, given his central importance, as the claim is concerned with whether he acted in bad faith in 2011, it is of considerable prejudice to the defendant that the documentary and witness evidence is not yet available and may never be available.

1. 1. That is not, in any way, to diminish the upset to the claimant in not being able to proceed with her claim against the defendant in such a sensitive and difficult case. The claimant contends that she has suffered irreparable and lasting psychiatric injury which she alleges was caused by the acts and omissions of the defendant’s police officers. However, in considering whether there should be an extension of time, the court is also obliged to consider the principle of proportionality. As stated by Sir Terence Etherton MR in Carroll: “Proportionality is material to the exercise of the discretion… In that context, it may be relevant that the claim has only a thin prospect of success…”.

1. 1. Lord Steyn set out the ingredients of the tort of misfeasance in public office in Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1, pages 191-194:

(1) The defendant must be a public officer;

(2) The second requirement is the exercise of power as a public officer;

(3) The third requirement concerns the state of mind of the defendant – it is this area which is of particular importance – and there must be conduct amounting to an abuse of power accompanied by subjective bad faith:

“First there is the case of targeted malice by a police officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where public officer acts knowing he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act his lawful.”

(4) Duty to the plaintiff;

(5) Causation;

(6) Damage and remoteness.

1. 1. With respect to the second limb of part three in Lord Steyn’s explanation, Lord Hutton made it clear that the claimant must establish dishonesty: “I consider that dishonesty is a necessary ingredient of the tort, and it is clear from the authorities that in this context dishonesty means acting in bad faith.”

1. 1. Consequently, if the claimant is able to establish that she was provided with the wrong information by DS Dawson, or another, that she was provided with the wrong information, she still needs to show that information was provided to her with intentional dishonesty and bad faith. The currently pleaded case does not set out a positive case that there was bad faith. In those circumstances, the claimant does not appear to have good prospects of success. That weighs very heavily against her for establishing that she should be entitled to an extension of time for the bringing of her claim.

1. Looking at this matter broadly (as I am obliged to do) and taking into account the circumstances of this case, I do not find that there should be an extension of time (even if the case were not, as I have found, an abuse for being res judicata). I do not consider that the claimant has any more than a “thin prospect of success.”

INADEQUATE PLEADINGS

The claimant had sought to amend the Particulars of Claim but not provided a draft.

1. 1. For completeness, I am also dealing with the claimant’s application to amend.

1. 1. The defendant does not oppose the application to amend a mathematical error in the Schedule of Special Damages. The opposition is with respect to the application generally to amend her pleading.

1. 1. The claimant has raised a claim against the defendant for misfeasance in both the proposed amended pleading and in the current pleadings. This amendment would therefore be third time of pleading.

1. 1. The pleading as it is currently drafted fails to specify who it is said acted in bad faith and how. While the claim is against the Commissioner of the Metropolis it is not a personal allegation against the Commissioner. As was set out relatively recently by Choudhary J in FXJ v Secretary of State for the Home Department and Anr [2022] EWHC 1531, an allegation of misfeasance must be pleaded and proved with care, particularly in relation to the element of subjective recklessness:

“In Southwark London Borough Council v Dennett [2008] LGR 94, May LJ stated:

… Mere reckless indifference without the addition of subjective recklessness will not do. This element virtually requires the claimant to identify the person or people said to have acted with subjective recklessness and to establish their bad faith. An institution can only be recklessly if one or more individuals acting on its behalf are subjectively reckless and their subjective state of mind needs to be established.”

1. 1. It is not suggested that police officers are not required to investigate allegations of serious criminal offences and that they would be acting outside of their powers if they failed to do so (see Green J, as he then was, in DSD, NBV v The Commissioner of Police for the Metropolis [2014] EWHC 436).

1. 1. The claimant is obliged to identify the officer (or officers) who has allegedly acted in bad faith and identify any acts of bad faith. The closest the pleading comes to fulfilling that obligation is where it is said: “the Defendant’s officers in 2011, including DS Dawson, knowingly/recklessly abused their powers as police officers in failing in their duty to investigate …”. That is not an allegation of misfeasance but an allegation of negligence. Importantly, bad faith is not pleaded. The particulars of misfeasance set out in the Particulars of Claim are, in fact, negligence pleadings and do not go to the issues that Three Rivers raise, namely abuse of power accompanied by subjective bad faith.

1. In all the circumstances, including that there is no draft to consider, it is not appropriate to give permission to amend.