Crawford v Jenkins
| Jurisdiction | England & Wales |
| Judge | Sir Timothy Lloyd,Lady Justice Sharp,Lord Justice Beatson |
| Judgment Date | 24 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1035 |
| Docket Number | Case No: B2/2013/2939 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2014 |
[2014] EWCA Civ 1035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE BAUCHER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lady Justice Sharp
and
Sir Timothy Lloyd
Case No: B2/2013/2939
Richard Wilson Q.C. and Piers von Berg (instructed through direct access) for the Appellant
Adam Speker (instructed through direct access) for the Respondent
Hearing date: 9 July 2014
Introduction and summary
This appeal by the Claimant, Mr Lincoln Crawford, is brought against an order of Her Honour Judge Baucher in the Central London County Court dated 2 October 2013. Her order was made on submissions by way of preliminary issues of law on the facts alleged by the Claimant. The Claimant Appellant and the Defendant Respondent, Ms Bronwen Jenkins, were formerly husband and wife. He is a barrister, she a solicitor. They have two children. The present proceedings are part of an acrimonious sequence of litigation arising from the breakdown of the marriage.
On 16 July 2009 the Claimant was arrested for breach of an order made in the matrimonial proceedings. An hour later he was arrested again for breach of a different order made in other proceedings. He was detained for just over four hours as a result of the two arrests. The arrests were effected following information being given to the police by the Defendant. The Claimant was released on bail and no prosecution ensued.
By her order the judge declared, in paragraph 3, that the Defendant's "complaint to the police was protected by immunity from suit" and, in paragraph 4, that the remainder of the claim against the Defendant under the Protection from Harassment Act 1997 ("the 1997 Act"), based on two text messages identified in the Amended Particulars of Claim, should be struck out.
The Claimant's action was at first brought only against the Metropolitan Police Commissioner, but that claim has been settled and the police have played no part in the appeal.
I will need to describe the dispute and the proceedings in more detail below, but the first point in the appeal is whether the judge was correct to hold that the Defendant was not liable to be sued for damages for false imprisonment on the basis that her acts which would be relevant to the cause of action were statements made to the police which might have been the basis of evidence in court if the matter had led to a prosecution; I will call this the witness immunity rule. The judge came to that conclusion on the basis of the decision of the Court of Appeal in Westcott v Westcott [2009] QB 407, [2008] EWCA Civ 818. The Appellant contends that this is wrong and that the contrary conclusion follows from the House of Lords' decision in Roy v Prior [1971] AC 470 and subsequent decisions following it.
Issues also arise from the claim under the 1997 Act. One is whether such a claim is also barred by immunity from suit on the same principle, insofar as it relies on statements made to the police; the other, as regards two text messages, is whether the claim should be struck out on ordinary principles as lacking substance.
The Defendant filed a Respondent's Notice seeking to uphold the judge's order on other grounds which she did not decide.
For reasons which I set out below, I have come to the conclusion that the judge was right both as regards the scope of the witness immunity rule and also as regards the claim under the 1997 Act. I would therefore dismiss the appeal.
The relevant events
Both parties provided the court with a vast amount of information and documents about the history of the relations between them. Most of it is of no relevance to this appeal. I will confine my summary of the facts to those that appear to me to be relevant. I take these from the Claimant's Amended Particulars of Claim, which has to be taken at face value for this purpose, so far as relevant, and from other sources so far as uncontested facts are concerned.
On 29 October 2003 District Judge Brasse, in the Principal Registry of the Family Division, made an order as regards contact and residence. The children were to reside with the Defendant. She was to allow the Claimant specified contact which included provision for him to collect the two children from their home and to take them to their respective schools on two occasions during the week, to be agreed. Otherwise the Claimant was not to "attend the children's schools during the week save by agreement". Failure to comply with this order would not of itself have penal consequences.
On 15 May 2006 the Claimant was convicted of an offence under the 1997 Act in the Highbury Corner Magistrates' Court. The court made a restraining order against the Claimant under section 5 of the Act prohibiting him from doing various specified acts. These included contacting the Defendant, whether directly or indirectly, and attending specified locations (which did not include the school attended by the parties' daughter). The effect of section 5 is that if he did any of these specified acts without reasonable excuse he would be guilty of an offence.
On Saturday 13 June 2009 the parties' daughter's school held an Open Day. Both Claimant and Defendant attended the school during that event. While they were both there the Defendant sent to the Claimant two text messages objecting to his presence, at 12.15 and at 16.13 respectively. They were as follows:
"You should leave. Both children are conflicted. I feel awkward in your presence. You pay nothing. Have just spent 65 pounds on new uniform. Go away."
"You were in breach of your restriction today being at school as you well know, no arrangements for you to be there and not in accordance with any order."
On 19 June the Defendant complained to the police that the Claimant had been in breach of the two court orders that I have mentioned by virtue of his presence at the school open day. She made statements to the police orally on that day and in writing on 26 June. On 15 July she sent a copy of the 2003 order to the police by fax. The Claimant contends that the allegations made on 19 June were made intending to cause him distress, which they did, and that when she signed the statement on 26 June which alleged that he had committed a criminal act, she knew that this statement was false.
On 16 July the Claimant attended Holborn Police Station and was arrested at 15.29 for breach of the 2003 contact order, and detained in police custody. At 16.41, it having been pointed out that the contact order contained no power of arrest, the Claimant was arrested again, this time for breach of the restraining order made in 2006. His detention continued until he was released on bail; according to the police this happened at 19.40. The Crown Prosecution Service decided that no further action should be taken. There was, therefore, no prosecution to complain of, but the Claimant had been arrested, unlawfully so he contends, and he therefore sued in respect of the arrest and the resulting period of detention. His case is that the arrests were made on the basis of the Defendant's complaints to the police.
He contends that the first arrest was unlawful, as the 2003 order carried no power of arrest, and that the second arrest was unlawful, not being founded on reasonable suspicion of the commission by the Claimant of any arrestable offence, and being without any other lawful authority.
The Claimant alleges that the Defendant made her complaint to the police knowing that there was no breach of the 2003 order, and that any issue under that order could only be resolved in the family courts, and that the 2006 order did not apply to attendance at the school. On that basis he alleges that her allegations to the police were premeditated and false, and were intended to paint the Claimant in a bad light in connection with an imminent disciplinary hearing.
His claim as regards harassment alleges a course of conduct which consisted of (a) the two successive text messages quoted above and (b) the complaint to the police on 19 June, the written statement supplied on 26 June and the supply of a copy of the 2003 order on 15 July, resulting in the arrest of the Claimant. He also alleges that by reason of the text messages quoted above, the Defendant's complaints to the police and his arrests, he was deeply alarmed and suffered profound distress.
The proceedings and the claims at issue in the appeal
The proceedings were commenced by the issue of a Claim Form against the police alone on 26 February 2010. The Defendant was added by an order dated 4 February 2013.
In his Amended Particulars of Claim, the Claimant put forward a variety of claims against the Defendant. Of these, only two are now relevant: claims for damages against the Defendant for false imprisonment, and for harassment under the 1997 Act. From the facts which I have described above, it is clear that his case as regards false imprisonment is not that the Defendant herself effected the imprisonment, but that she procured the police to arrest and detain the Claimant, and that she did so maliciously. Thus, as against her it is really a case of malicious procurement of imprisonment.
In her Amended Defence, the Defendant contends that she is immune from suit in both these respects as regards her complaint to the police. She takes issue with many other aspects of the Claimant's allegations, but the point relevant for present purposes is the claim to immunity.
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