Faisaltex Ltd and Others v (1) Chief Constable of Lancashire Constabulary (2) HM Revenue and Customs (Directions)
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 2009 |
| Date | 24 July 2009 |
| Court | High Court |
High Court, QBD, HQ09X01067
Eady J
M Ryder (instructed by DLA Piper UK LLP) for F; A Bird (instructed by Lancashire Constabulary and HMRC) for the police and Customs
Whether the Court should amend a protocol governing the examination of seized material to weed out anything subject to legal professional privilege
On 3 April 2008 search warrants were executed at premises occupied by the claimants. In judicial review proceedings, F and others - see [2008] Police LR 384 - succeeded in part, but insofar as they contended that there had been excessive seizure the Divisional Court held that the matter should be dealt with by way of a private law claim: [2008] Police LR 384. The Claimants then issued proceedings in March 2009 and sought declarations, delivery up and damages based on allegations of unlawful behaviour on the part of the police and the revenue. An application for an injunction to restrain the police from accessing the material was refused: [2009] Police LR 308. A protocol governing the inspection of the seized material allowed independent counsel to identify any documents which were, or were likely to be, covered by legal professional privilege. The Claimants sought, by way of an application for directions, an order for an extension of time to comply with the protocol and an extension of the protocol to cover documents which might, for some other reason, have been unlawfully seized including, in particular, material not relevant to the police enquiries.
1. On 9 July I heard an application "for directions" in this litigation made by Mr Matthew Ryder on behalf of the Claimants. What he was in effect seeking was an injunction on their behalf to restrain, in certain defined respects, the conduct of investigations by the Chief Constable of Lancashire Constabulary and HM Revenue and Customs, who are the Defendants, into what are suspected to be large scale criminal activities.
2. In the action the Claimants seek declarations, delivery up and damages based on allegations of unlawful behaviour on the Defendants' part. What is
said, in particular, is that they made excessive seizures of the Claimants' property when executing search warrants on or about 3 April 2008. There is already in place a protocol governing the inspection of the seized material, which is arranged so as to give an opportunity to independent counsel to identify any documents which are, or are likely to be, covered by legal professional privilege (which, of course, it is accepted the Defendants are not entitled to inspect or retain). What the Claimants seek primarily by this application is to extend the protocol to cover documents which may, for some other reason, have been unlawfully seized. In particular, it is suggested that the independent counsel should also seek out material which, by some definition or another, is not "relevant" to the Defendants' enquiries.
3. The Claimants are also seeking an extension of time within which to comply with the protocol.
4. It is plainly undesirable for the court to become involved in such a way as to inhibit the discharge of the Defendants' duties in the investigation of suspected crimes, save in so far as it can be demonstrated to be necessary and proportionate to do so.
5. The background of these enquiries is fully explored in 2 earlier judgments and does not need to be rehearsed again for present purposes. The first judgment is that of the Divisional Court following the Claimants' application for judicial review relating to the legality of the search warrants: see R (Faisaltex & ors) v Preston Crown Court & ors[2008] Police LR 384. The second judgment is that of Blake J on the Claimants' application for an injunction, made in these proceedings, and delivered on 20 March of this year: [2009] Police LR 308.
6. For present purposes, I do not believe it is necessary for me to refer to the underlying facts save by way of very brief summary. The seizures were obtained pursuant to 9 search warrants which were, as I have said, executed on 3 April 2008. These proceedings were commenced almost a year later, on 12 March 2009. The particulars of claim followed on 26 March and the defences were served on 6 May.
7. The Administrative Court upheld the legality of the issue of the warrants in question, but declined to adjudicate on the legality of their execution. It was suggested that it would be more appropriate for the Claimants to pursue, in this respect, a private law remedy. Keene LJ there referred, at [90]-[91], to the earlier decision of R v Chief Constable of the Warwickshire Constabulary ex p FitzpatrickWLR[1999] 1...
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