BES Commercial Electricity Ltd v Cheshire West and Chester Borough Council

JurisdictionEngland & Wales
JudgeMr Justice Turner
Judgment Date02 April 2019
Neutral Citation[2019] EWHC 748 (QB)
Docket NumberCase No: HQ17X02568
CourtQueen's Bench Division
Date02 April 2019

[2019] EWHC 748 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL


THE HON. Mr Justice Turner

Case No: HQ17X02568

(1) BES Commercial Electricity Limited
(2) Business Energy Solutions Limited
(3) BES Water Limited
(4) Commercial Power Limited
Cheshire West and Chester Borough Council

Mr Philip Marshall QC and Mr Matthew Morrison (instructed by Weightmans LLP) for the Appellants

Miss Fiona Barton QC (instructed by Clyde & Co LLP) for the Respondent

Hearing dates: 12 and 13 March 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Turner

Mr Justice Turner Mr Justice Turner The Hon



This is an appeal against the decision of Master Davison of 3 August 2018 granting the respondent's applications to strike out and give summary judgment against the appellants in respect of certain distinct parts of their claim. For ease and consistency of reference, I will henceforth refer to the appellants and respondent as the claimants and defendant respectively.



The first and second claimants are in the business of supplying energy to commercial customers. The third claimant was established with the intention that it should operate as a non-domestic water supplier. It has not, as yet, started to trade. The fourth claimant is an energy aggregator. Energy aggregators act as intermediaries through which suppliers, such as the first three claimants, pass details of their products on to a network of brokers.


The first and second claimants compete against their larger “big six” rivals, at least in part, by pursuing a business model which targets those potential customers with lower credit ratings.


Historically, the claimant suppliers have been concerned at what they perceive to be a lower than expected success rate in attracting those businesses which have chosen to change supplier. This disappointment is coincident with, and the claimants would say related to, the actions of the defendant.


For some considerable time, the defendant has been carrying out a trading standards related investigation into allegedly fraudulent conduct on the part of the claimant suppliers. The claimants challenge the integrity and genuineness of this investigation. In particular, they contend that two individuals, Mr Scrivener and Mr Mooney, have been conspiring with one David Bourne of the defendant to propagate deceitful claims about the claimants' trading practices in order to divert business in the direction of competing suppliers. It is unnecessary for the purposes of this judgment to descend into further particularisation of the means by which the claimants allege such deceits have been perpetrated. Suffice it to say that the enthusiasm of Messrs Scrivener and Mooney to malign the claimants is alleged to have been fuelled by payments received from rival suppliers who were set to benefit from the bad press which the claimant suppliers were being given.



Of central importance to this appeal is an application which was made without notice by the police to Preston Crown Court on 22 July 2016 seeking to obtain search warrants targeted at the claimants' premises. It is not in issue that this application was instigated by the defendant in purported pursuance of its investigation into the activities of the claimants.


The claimants allege that the warrants, which were granted by HH Judge Brown, the Recorder of Preston, were obtained by the provision of false, misleading and inadequate information. Again, for the purposes of this judgment, it is unnecessary to elaborate further upon the detail of these allegations.



After the warrants had been acted upon, the claimants commenced proceedings against the defendant alleging, inter alia, misfeasance in public office and trespass to goods to the extent that some of the property actually seized was said to have fallen outside the scope of the search warrants obtained. In respect of these claims, the defendant accepts that the issues raised are not susceptible to summary determination.


However, the claimants also rely upon their rights under Article 8 and Article 1, Protocol 1, of the European Convention on Human Rights (“the Convention”). In short, the claimants contend that the defendant acted in breach of those rights in instigating the application for the search warrants on flawed grounds. In this regard, they seek just satisfaction from the defendant pursuant to section 8 of the Human Rights Act 1998 (“the HRA”).


The defendant applied to strike out and/or obtain summary judgment in respect of the claimants' HRA claims. It contends that there could be no breach of the claimant's Convention rights unless and until after the moment of entry upon the claimants' premises and the removal of their property. Since these actions were carried out in pursuance of and in accordance with the terms of the warrants, the defendant asserts that they are not susceptible to challenge — so long as the warrants themselves have not been quashed.


In broad terms, the defendant sought to persuade the Master to accede to its application for summary determination on two main grounds:

i) It was a prerequisite to the making of the claim in respect of the actions taken to enforce the warrants that the warrants themselves should be quashed in judicial review proceedings. It was not open to the claimants to circumvent the procedural requirements of CPR Part 54 by seeking a private law remedy;

ii) In any event, the defendant enjoyed immunity from suit to the extent that its alleged misconduct fell within the scope of the protection afforded by the common law to those such as advocates, parties and witnesses and others against civil claims.


I propose to deal with each of these points in turn.



The defendants successfully persuaded the Master that the claimants' HRA allegations, to the effect that the defendant had obtained and executed search warrants unlawfully, could not be pursued unless and until the warrants had been quashed. The defendant contended that it followed that the only basis upon which the claimants would have been entitled to proceed would be by way of judicial review following the procedure laid down in CPR Part 54.


In support of this proposition, the defendant relies upon the case of O'Reilly v Mackman [1983] 2 AC 237 at p. 285 D-E in which Lord Diplock observed:

“It would…as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53.”


As the claimants point out, however, Lord Diplock was not intending to impose a blanket prohibition upon the deployment of private law procedures in cases in which there was, at least, an element of public law. In particular, he held, at p. 284 F-G, that a private law claim would not be precluded:

“…where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law”

And went on to comment that:

“…other exceptions should, in my view, at this stage in the development of procedural public law, be left to be decided on a case to case basis.”


I have been referred by the parties to many, and more recent, decisions relating to the respective magisteria of public and private law claims. It would be disproportionate, in the context of a summary process, for me to undertake a minute analysis of how the law in this area has developed over recent years. Suffice it to say, however, that, with the passage of time, the courts have, in general, allowed for a greater degree of flexibility than was formerly the case. In Richards v Worcestershire CC [2017] EWCA Civ. 1998 Jackson LJ, having reviewed the authorities, concluded:

“The exclusivity principle should be kept in its proper box. It should not become a general barrier to citizens bringing private law claims, in which the breach of a public law duty is one ingredient.”


The claimants further point out that any adjudication upon the status of the search warrants would, in turn, be ineluctably dependent upon the resolution of issues of fact. It would be necessary, in particular, for the court to determine whether and, if so, in what way HH Judge Brown was misled and what, if any, was the causative impact of any such alleged failures.


Again, there is no shortage of authority on this point. Of particular note is the case of R (Fitzpatrick) v CC Warwickshire [1999] 1 WLR 564 in which the Divisional Court held at p. 579:

“Judicial review is not a fact finding exercise and it is an extremely unsatisfactory tool by which to determine, in any but the clearest of cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure…should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles.”


In addition, the claimants argue that it would be inappropriately...

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