CXX (Claimant v DXX (Defendant
| Jurisdiction | England & Wales |
| Judge | Mr Justice Spencer |
| Judgment Date | 01 June 2012 |
| Neutral Citation | [2012] EWHC 1535 (QB) |
| Date | 01 June 2012 |
| Docket Number | Case No: QB/2012/0078 |
| Court | Queen's Bench Division |
[2012] EWHC 1535 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from Master Roberts
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Spencer
Case No: QB/2012/0078
Richard Davison (instructed by Bolt Burdon Kemp) for the Claimant
Satinder Hunjan QC (instructed by Hutton's) for the Defendant
Hearing date: 11 th May 2012
This is an application for permission to appeal against an order of Master Roberts dated 27 th January 2012 striking out parts of the defence and granting summary judgment on the claim. The hearing before me on 11 th May 2012 was listed with the appeal to follow if permission was granted. For convenience, and by agreement of the parties, the hearing proceeded as if it were the full hearing of the appeal, and I reserved judgment.
Introduction
The appellant is the defendant in a claim for damages for trespass to the person and harassment. The claim arises out of events which have already been the subject of a criminal trial in the Crown Court in which the defendant was convicted of two counts of attempting to administer poison to the claimant with intent to procure a miscarriage. He was sentenced to 6 years imprisonment. His application to the Court of Appeal (Criminal Division) for leave to appeal against conviction was refused by the full court on 14th July 2010. The claimant relies upon those convictions in her claim for damages for psychiatric injury and consequential loss and damage. The defendant pleads in his defence that the convictions were wrong, asserting that the claimant's evidence in the criminal proceedings was false. He counterclaims damages for malicious prosecution.
The Master struck out as an abuse of process, pursuant to CPR 3.4, the paragraphs of the defence which contested the convictions. He granted the claimant summary judgment, pursuant to CPR 24.2, for damages to be assessed and costs, on the basis that the defendant has no real prospect of successfully defending the claim. He ordered that the defendant make an interim payment in respect of damages in the sum of £17,000, and an interim payment in respect of costs in the sum of £15,000.
At the forefront of the defendant's case before the Master was the fact that the defendant has applied to the Criminal Cases Review Commission ("CCRC") to investigate and review his case. The main thrust of his case before the Master, and before me, was that subsequent to the Court of Appeal hearing, further evidence has emerged which casts doubt on the credibility of the claimant. Her credibility was central to the issues the jury had to decide. It is submitted that the defendant should not be shut out from challenging the convictions, and certainly not before the outcome of the application to the CCRC is known.
For completeness I should add that it is part of the claimant's pleaded case, in support of the claim for harassment, that following the defendant's conviction and imprisonment he conspired with another prisoner to fabricate a retraction of the claimant's evidence. This was, apparently, uncovered by a national newspaper. The plan was to steal the claimant's mobile phone and send a text message to her employer, as if from the claimant herself, saying that she could not live with her lies any more and that she now admitted that it was she who put the drugs in her drinks and had lied to the police and to the court. I was told at the hearing that the defendant has recently been convicted in the Crown Court of conspiracy to pervert the course of justice in relation to this incident, and is presently awaiting sentence. I make it clear, as I did at the hearing, that I have disregarded this conviction in deciding the issues in this appeal.
I remind myself that the test for granting permission is whether the court considers that the appeal has a real prospect of success or that there is some other compelling reason why the appeal should be heard. The test for whether an appeal should be allowed is whether the decision of the Master was wrong, or unjust because of a serious procedural or other irregularity in the proceedings.
I have had the advantage of written and oral submissions from Mr Hunjan QC on behalf of the defendant and from Mr Davison on behalf of the claimant. For reasons which will become clear, the focus of the argument before me was rather different than before the Master because of recently discovered relevant authority.
The Master heard the claimant's application on 13 th January 2012 and handed down a comprehensive reserved written judgment dated 25 th January 2012. It runs to fifteen pages and carefully recites the materials he considered, the relevant contentions in the pleadings and the relevant evidence, before setting out his findings and conclusions.
The factual background
The relevant facts may be briefly stated. The claimant was a medical secretary working at a hospital. The defendant was a consultant physician at the same hospital. At around Christmas 2007 they began a sexual relationship. She became pregnant. She informed the defendant of that fact on 22 nd January 2008. He tried to persuade her to have an abortion. She refused. She alleges that on three occasions he administered or attempted to administer drugs to her in order to procure an abortion. She alleges he did so by putting the drugs into a morning cup of tea on the first occasion, into a cup of coffee at Starbucks on the second occasion, and into a bottle of orange juice on the third occasion.
The defendant was convicted in the Crown Court of attempting to administer poison on the second and third occasions. He was acquitted of administering poison on the first occasion. There was also a count of procuring poison to be used with intent to procure an abortion. The jury failed to reach a verdict on that count.
The present argument focuses on count 3, the Starbucks incident. The Court of Appeal gave a very full judgment on 14 th July 2010, refusing leave to appeal. At paragraph 15 of the judgment Thomas LJ sets out the evidence the claimant gave at trial on the Starbucks count. The prosecution case was that he put poison into a small cup of coffee he bought for her and which was awaiting her on her arrival at Starbucks. She noticed the lid was stained and pretended to sip the coffee. Later, when she was alone in a taxi, she poured the contents of the cup into a bottle for safekeeping. The cup and the lid were examined forensically and found to contain Diclofenac, a component of Arthrotec, used to treat pain and inflammation in rheumatic disease. The bottle was found to contain Methotrexate, a drug used for treating tumours and arthritis but which can also be used to procure a miscarriage.
There is no reason to doubt (and it is part of the defendant's case) that the claimant had been consistent in saying to the police in her witness interviews and/or witness statements, as well as in her evidence at trial, that she had only pretended to sip the coffee on this occasion.
In the Particulars of Claim the Starbucks episode is pleaded, at paragraph 3 as follows (with emphasis added):
"On Thursday 7 th February 2008, the defendant gave the claimant a cup of coffee from Starbucks containing drugs. The claimant drank a small amount of the coffee."
At paragraph 10 it was pleaded:
"The surreptitious administration of noxious drugs to the claimant on the two occasions she actually drank what she was given (2 February and 7 February)…."
At paragraph 11 it was pleaded:
"Further, the two poisoning instances, the attempted poisoning and the attempted conspiracy……"
Thus the pleading asserted, contrary to her evidence at trial, that she had actually drunk some of the coffee in the Starbucks incident, and had not merely pretended to sip it.
This inconsistency, it is contended, is capable of undermining her credibility in a fundamental way, to the extent that the Court of Appeal Criminal Division might have been — and might still be — prepared to accept it as fresh evidence and treat it as rendering the conviction unsafe. This is because the crucial issue at trial was the claimant's credibility. As Thomas LJ said, at paragraph 22:
" It is clear from what we have said that the principal task of the jury was to determine, as between [CXX] and the [defendant], who was telling the truth and whether they could be sure on all the evidence before them that the prosecution case was correct and that therefore the [defendant's] account must be untruthful."
The defendant's pleaded defence effectively repeats the defence he ran unsuccessfully at trial at the Crown Court. I shall refer to it more fully in due course. For present purposes it is sufficient to say that he denied putting any drugs into her drinks with criminal intent. His case was that she was undecided and inconsistent over an abortion. It was she who raised the possibility of administering drugs to herself for that purpose. He obtained Methotrexate tablets and they arranged to meet at Starbucks. His intention was to demonstrate to her that this method was impractical and unpleasant, and he did so.
At paragraph 4 of the defence the defendant expressly denied that the claimant drank a small amount of coffee in the Starbucks incident, as alleged in the particulars of claim:
"The claimant maintained previously, and gave evidence on oath, that she had not drunk any of the coffee and this assertion is untruthful."
The defence was dated 29 th July 2011. On 4 th November 2011 the particulars of claim were amended to expand upon the particulars of injury and financial loss, and to include a claim for aggravated and exemplary damages. No amendment was made to the paragraph setting out the Starbucks incident.
On 2 nd December 2011 the claimant...
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