Carnduff v Rock and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE LAWS,LORD JUSTICE JONATHAN PARKER |
| Judgment Date | 11 May 2001 |
| Neutral Citation | [2001] EWCA Civ 680 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2000/3081 |
| Date | 11 May 2001 |
[2001] EWCA Civ 680
Lord Justice Waller
Lord Justice Lawslord Justice Jonathan Parker
Case No: A2/2000/3081
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
His Honour Judge Nicholl (sitting as High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nicholas Paul (instructed by George Jonas & Co for the Claimant)
Mr Richard Perks (instructed by Legal Services, Civic House, 156 Great Charles Street, Birmingham for the Defendants)
The claimant is a registered police informer. He seeks to recover payment for information supplied to the West Midlands Police. He asserts that the Chief Constable of the West Midlands Police (the second defendant) and/or Inspector Rock (the first defendant) are liable to pay for information provided pursuant to a contractual obligation, the nature of which I will spell out in a little more detail below. The defence pleads that no contractual liability exists and that in any event the claimant has not earned any remuneration.
The action had got to the stage where disclosure of documents was being sought in relation to all issues. That seemed to involve at least the possibility that the police might have to reveal to the claimant material for which they would claim Public Interest Immunity from disclosure in relation to what information was supplied by the claimant and its value. In those circumstances the defendants applied to strike out the claim.
That application was argued before the disclosure application and Judge Nicholl dismissed the application. He also refused permission to appeal. The disclosure application was not proceeded with, pending an application for permission to appeal being made to this court. Permission to appeal was granted by Lady Justice Hale, and this is the appeal from the decision of Judge Nicholl dated 6 th September 2000.
The two points taken in the application to strike out were that "no concluded contract was pleaded" and "to enforce any such agreement would be contrary to public policy." It is apparent that before the judge the point was also taken that there was no intention to create legal relations, a point dismissed by the judge as "impossible to determine simply at this stage under an application to strike out." Before us Mr Perks suggested that there were four grounds on which the court should exercise its discretion to strike out: (1) That the agreement as pleaded was incomplete; (2) that the method of enforcement was unenforceable; (3) that there was no intention to create legal relations; and (4) that the action should be struck out on the grounds of public policy. His first ground clearly equated with the first basis in the application. His second and fourth grounds are in fact very much intertwined and reflect the second basis in the application, but in reality go to the question not whether the contract itself was contrary in some way to public policy but whether the action can be fairly tried having regard to certain public policy considerations. The third ground was only faintly pursued as a basis for striking out.
The main thrust of Mr Perks' submissions can I think be summarised in this way. First, he did not suggest that it was not possible to have a legally enforceable agreement as between the police and an informer. For example, an agreement that offered a fixed price for certain information could be such an agreement. Second however, an agreement that did not fix a price, he submitted, would be unenforceable both because the price would be uncertain and unascertainable, and/or because the price would be unascertainable without the risk of disclosure of information which the police would be entitled to have protected on Public Immunity grounds. Third, any action to enforce an agreement which, when it came to be enforced, would either involve the disclosure of information that the police were entitled to have protected by Public Interest Immunity, or an unfair trial if they exercised their right to withhold the information, should be struck out on public policy grounds.
The Amended Statement of Claim
The pleading is in the following terms:
"1. In approximately 1984, it was agreed orally between (1) the Plaintiff and (2) officers of the West Midlands Police Force acting as principals or alternatively as agents for and on behalf of the Second Defendant, that the Plaintiff would provide information and assistance to the police to enable them to investigate suspected criminals and criminal offences, and/or to arrest and prosecute persons suspected of crime, and/or to prevent crime, and that in return for such information and assistance and in consideration thereof the Plaintiff would be paid reasonable remuneration.
2. It was an implied term of the agreement that the remuneration paid to the Plaintiff as aforesaid would be reasonable, taking into account the seriousness of the criminal activity to which his information and assistance related; the financial rewards likely to accrue to criminals from the relevant criminal activity; the value to the police of his information and assistance; and the personal danger to which the Plaintiff and his family would be exposed as a result of his providing information and assistance as aforesaid.
3. On many occasions from about 1984 onwards the Plaintiff provided information and assistance for reward to various officers of the West Midlands Police Force, including officers of the Regional Crime Squad and the West Midlands Drugs Squad, pursuant to the said agreement. The Plaintiff was on many occasions paid reasonable remuneration in consideration of his information and assistance, determined in accordance with the principles which had been agreed as aforesaid.
4. In or about 1996 the Plaintiff became aware that one Zafar Ali Mirza and others planning to supply heroin in large quantities in the U.K. The Plaintiff offered, for reward, to provide information and assistance to officers of the West Midlands Police, to enable them to prevent the planned crime, to arrest and prosecute the criminals, and to seize the drugs. He had oral discussions with various officers, including Detective Constable Gary Sykes (who was one of the Claimant's "handlers"), and the First Defendant. The Plaintiff's offer was accepted by the First Defendant, who acting as a principal and/or as an agent for and on behalf of the Second Defendant (the Chief Constable). It was an implied term of the agreement that the Plaintiff would be paid reasonable remuneration for his information and assistance, in accordance with the principles referred to in the above paragraphs.
5. The Plaintiff, pursuant to the said agreement, duly provided information and assistance to the police, and introduced an "undercover" police officer who pretended to be interested in buying heroin, Zafar Ali Mirza.
6. As a result of the Plaintiff's information and assistance, which the police well knew he had provided pursuant to the said agreement, police officers were able to arrest and prosecute Zafar Ali Mirza and others involved in the illegal supply of heroin, and to seize a large quantity of heroin. The officers accepted the benefits accruing from the Plaintiff's services, knowing that his services were not intended to be gratuitous.
PARTICULARS
… ."
It will be seen that there are in fact two agreements pleaded. The first pleads an overall agreement under which the claimant undertook to provide information and the police undertook to pay for the same. That was said to include an implied term as to the basis on which remuneration was to be paid, including (1) the seriousness of the criminal activity; (2) the financial rewards likely to accrue to criminals from the relevant criminal activity; (3) the value to the police of this information and assistance; and (4) the personal danger to which the claimant and his family would be exposed.
The alternative agreement relates to 1996 and was either part of the general first agreement or it was free standing. By this agreement the claimant offered for reward certain information. The offer was accepted but again the implied term was in accordance with the principles of the implied term alleged in the first agreement.
It will be noted that in neither of the alleged agreements was any price fixed. Mr Perks further pointed out how the terms pleaded contemplated establishing as part of the case the value of the information so far as the police were concerned, i.e. the degree to which the claimant's information assisted the police in their task. He further submitted that if the court were to embark on any exercise in relation to assessing the reasonableness of the remuneration claimed, that might involve making comparisons by reference to information provided by other informers. Thus he submitted that this is a case where once assessment of the appropriate payment was being undertaken either there would be a risk of disclosure of highly sensitive information which the police should be entitled to protect, or there would be a risk of an unfair trial.
For the purpose of a strike out one must assume that what is pleaded can be established, and it seems to me that should include the implied terms pleaded in this case.
I am not persuaded that the contract, if made in the terms pleaded, would be too uncertain to be enforced. I am also clear that the judge was right in saying that evidence would be necessary before any decision could be taken as to whether there was an intention to create legal relations.
Leaving on one side the...
To continue reading
Request your trial
-
John Haralambous v St Albans Crown Court (1st Defendant) Hertfordshire Constabulary (2nd Defendant)
...in the earlier judicial review proceedings. It was met by reference to Carnduff v. Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680; [2001] 1 WLR 1786 that the absence of disclosure should not lead to the quashing of the warrants, when it was clear that the magistrate h......
-
AHK and Others v Secretary of State for the Home Department
...is no point in it going to trial." 8 This was akin to the position in Carnduff v Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680, [2001] 1 WLR 1786. 9 It could not be right for the SSHD to lose for the reasons I gave in paragraph 60: "For the same reasons, there is rea......
-
Akj and Others v Commissioner of Police for the Metropolis and Another
...my judgment in Tariq v Home Office). Or they must simply be regarded as untriable and struck out on the basis that, as Laws LJ put it in Carnduff [v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786] at para 36: "[They] cannot, in truth, be justly tried at all." 87. Obviously, I need hardly add,......
-
Tariq v Home Office
...to avoid being dismissed as abusive. 39 The only other possibility is that a court might, following the Court of Appeal decision in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786, determine that, if the national security material could not be deployed in defence, the claim might n......
-
VITIATING FACTORS IN CONTRACT LAW — SOME KEY CONCEPTS AND DEVELOPMENTS
...of contracts prejudicial to the administration of justice, Faryab v Phillip Ross & Co (a firm)[2002] All ER (D) 174 and Carnduff v Rock[2001] 1 WLR 1786 (petition to the House of Lords refused: see [2001] 1 WLR 2205), discussed briefly in Phang, supra n 272, at paras 5.64 and 5.74, respecti......