Dean Daniel Adrian Da Silva v The Department for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] EWHC 1591 (QB) |
| Docket Number | Case No: TLQ17/0804 |
| Court | Queen's Bench Division |
| Date | 29 June 2018 |
[2018] EWHC 1591 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Elisabeth Laing DBE
Case No: TLQ17/0804
Joseph Giret QC (instructed by Direct Access) for the first Claimant
The second Claimant represented himself
Andrew Deakin (instructed by GLD) for the Defendant
Hearing dates: 23 – 27 April, 30 April – 1 May 2018
Judgment Approved
Introduction
The Claimants claim damages against the Defendant for malicious prosecution and for misfeasance in public office. As pleaded by the Claimants, those two claims stand or fall together. Their pleadings do not distinguish between the two torts. The Defendant argues that the misfeasance claim is barred by the Limitation Act 1980. That is the first issue I will consider. I observe, in any event, that it is not obvious how the claim for misfeasance in public office (as pleaded) adds to the claim for malicious prosecution. It is not suggested that the latter claim is barred by limitation.
The Claimants are the directors of the Staff Supply Company Limited (‘SSC’). The nature of the business carried on by SSC is in dispute. The Claimants contend that it was a training and immigration advice business. They interviewed graduates in Indonesia who wanted to come to the United Kingdom to develop their careers, and placed them with hotels for that purpose, where, they accept, the graduates were employed by the hotels. SSC charged the graduates £4500, which, the Claimants say, was the cost, perhaps not even the whole cost, of various services they provided for the graduates. They deny that that charge, or fee, or any part of it, was for placing the graduates in a job. For convenience, I will refer to the graduates as ‘students’. That is a label. It is not an indication of my view (to the extent that I might have one, or that it might be relevant) about the legal, or economic effect of the arrangements the students made with SSC.
The Claimants now accept, however, that the business of SSC is correctly labelled, for the purposes of the legislation governing employment agencies, as that of an employment agency; or at least the First Claimant did, in his evidence. They accept that they retained the students' passports while they were in the United Kingdom, but they do not accept that that was a detriment for the purposes of the relevant legislation. The Defendant's case is that, on the basis of the information which it had, and on the basis of its internal legal advice, it had reasonable and probable cause to prosecute the Claimants for two breaches of the legislation governing employment agencies, and that that prosecution was not malicious, or for any extraneous or improper purpose or motive.
The First Claimant was represented by Mr Giret QC. The Second Claimant represented himself. The Defendant was represented by Mr Deakin. The Claimants were cross-examined. Mr Keeler and Mr Atkins, who gave evidence for the Defendant, were also cross-examined, first by the Second Claimant and then by Mr Giret QC. The Second Claimant asked a few questions of Mr Kelly, an officer in the Data Protection Department of Northamptonshire Police. There was no cross-examination of the other witnesses for the Defendant, in particular, of Ms Malpas (who gave evidence about CCTV) or of Ms Diprose (who gave evidence about her involvement in Mr Keeler's investigation of SSC).
I allowed the Claimants to rely on a witness statement of Mr Parrish, signed and dated on 26 February 2014. I refused their application to rely on a letter dated 27 December 2013 from Ayu Yuniar, for the reasons I gave orally on 26 April 2018.
The law
The law does not seem to be in dispute. This is a case in which it is appropriate to describe the law near the start of my judgment, as it is the frame for this case and the allegations which have been made in it. I say little about misfeasance in public office, because, as I have said, as pleaded, it adds nothing, in my judgment, to the claim for malicious prosecution.
Malicious prosecution
The Claimant's case on malicious prosecution depends on showing that there was a prosecution, and an acquittal. There is no issue about those two elements of the tort. The Claimants must also show that the prosecution was without reasonable and probable cause and that there was malice (see Glinski v McIver [1962] AC 726 at 742).
The dispute concerns the last two elements of the tort. For an explanation of ‘reasonable and probable cause’, Mr Deakin referred to a passage in the judgment of Lord Atkin in Herniman v Smith [1938] AC 305, approving a statement by Hawkins J in Hicks v Faulkner (1878) 8 QB 167 at 171:
“…an honest and reasonable belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”
The prosecutor is not bound to have tested every possible relevant fact in order to see whether there might be a defence, but rather, to ascertain whether there is a reasonable and probable cause for a prosecution (per Lord Atkin, Herniman, p 319). See also Coudrat v HMRC [2005] EWCA Civ 616 at paragraph 42.
I accept Mr Deakin's submission that, in the context of a public authority, which prosecutes in the public interest, the test in the CPS Code for Crown Prosecutors (as in force at the relevant time) (‘the Code’) is relevant to the question of reasonable and probable cause. Mr Atkins accepted in his evidence that he was bound by the Code. There is a two-stage test. There must be enough evidence to provide a realistic prospect of conviction and, if that stage is reached, it must also be in the public interest to prosecute.
The cases which Mr Deakin cited in his closing submissions show that ‘malice’ has a special meaning in this context. It includes spite and an intent to injure, but also any improper motive, that is, a motive other than the wish to bring a person to justice, so that the prosecution is not a bona fide use of the court's process. An absence of proper motive can be inferred from the circumstances, including from that fact that there is no reasonable and probable cause for the prosecution, but it all depends on the circumstances. An absence of reasonable and probable cause does not, on its own, necessarily lead to a conclusion that there was an improper motive for the prosecution (see the discussion in Williamson v Attorney General for Trinidad and Tobago [2014] UKPC 29per Lord Kerr at paragraphs 11–13 and 17–19). A failure to take the steps which it would be necessary for a prudent and reasonable person to take before instituting a prosecution might in some circumstances be evidence which points towards an improper motive, but sloppiness and malice are not the same thing.
Misfeasance in public office
The Claimant's case on misfeasance in public office depends on showing that Mr Keeler was a public officer, and that the allegations relate to the exercise of his functions as such. There is no dispute about those two elements. The second two elements are that the Defendant, acting as such, with the necessary state of mind, caused loss to the Claimants. Those elements are disputed.
The leading case on misfeasance in public office is Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. Mr Deakin cited various passages from the speeches of Lords Steyn, Hutton and Hobhouse in his skeleton argument. Clerk and Lindsell on Torts (22 nd Edition) (paragraph 14–120) says that Lord Steyn's speech gives an authoritative definition of the tort. It has two forms. The first is where there is targeted malice by a public officer; that is, conduct which he specifically intends will injure a person or people. It involves bad faith in the sense that the official exercises his public power for an ulterior motive. The second form is where the official knows that he has no power to do the act in question and that the act will probably injure the claimant. It involves bad faith because the official does not honestly believe that his act is lawful. Mr Giret QC did not disagree with this formulation.
The legislation which applied at the relevant time was the Employment Agencies Act 1973 (‘the 1973 Act’). As in force at the relevant time, section 13(2) of the 1973 Act defined ‘employment agency’ (subject to irrelevant exceptions in section 13(7)) as ‘the business, whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding persons employment with employers or of supplying employers with persons for employment by them’. Section 6(1)(a) of the 1973 Act provided that, except as might be prescribed in regulations, a person carrying on an employment agency should not ‘request or directly or indirectly receive any fee’ from any person for providing services (whether by the provision of information or otherwise) for the purpose of finding him employment or seeking to find him employment’. The evident policy of this legislation is to protect employees from paying any charge for being found work by a business which is an employment agency. The language of both provisions is deliberately wide. Section 6(1)(b) and (c) made analogous provision in respect of a person carrying on an employment business in relation to employees, in...
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