Gregory v Portsmouth City Council

JurisdictionUK Non-devolved
JudgeLORD BROWNE-WILKINSON,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT
Judgment Date27 January 2000
Judgment citation (vLex)[2000] UKHL J0127-3
Date27 January 2000
CourtHouse of Lords
Gregory (A.P.)
(Appellant)
and
Portsmouth City Council
(Respondents)

[2000] UKHL J0127-3

Lord Browne-Wilkinson

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hobhouse of Wood-borough

Lord Millett

HOUSE OF LORDS

LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he gives I would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss this appeal.

LORD STEYN

My Lords,

3

On this appeal the question is whether the tort of malicious prosecution is in law capable of extending to the malicious institution of domestic disciplinary proceedings by a local authority against a councillor.

4

The Disciplinary Proceedings

5

In 1983 Mr. Gregory was elected a Conservative member of the Portsmouth City Council. He had earlier been employed by an estate agent. Complaints were received by the Council that while various matters affecting local properties were before committees of the Council, Mr. Gregory was involved directly or indirectly in dealings in the properties. The allegation was that Mr. Gregory had abused his position as a councillor by using confidential knowledge gained as a councillor for his personal advantage. In 1988 the Administrative Sub-Committee of the Council's Policy and Resources Committee investigated allegations that Mr. Gregory had acted in breach of the National Code of Local Government Conduct which the Council had adopted. Mr. Gregory disputed the allegation. The Administrative Sub-Committee found some of the allegations proved and recommended that Mr. Gregory be removed from various committees of which he was a member, and that he be suspended from membership of the committees for the remainder of his term as councillor. The Administrative Sub-Committee appointed a Special Committee to approve, reject, vary or amend the recommendations of the Administrative Sub-Committee. After hearing evidence the Special Committee found a number of breaches of the Code proved. On 30 December 1988 the Special Committee ordered that Mr. Gregory be removed from the committees of which he was a member. These events were widely reported in the newspapers.

6

The Divisional Court proceedings

7

In March 1988 Mr. Gregory applied for Judicial Review. The Divisional Court (Mann L.J. and Brooke J.) quashed the decision in the disciplinary proceedings. The grounds upon the Divisional Court acted were:

1) The Administrative Sub-Committee had acted ultra vires when it made its findings and recommendations. The Council had placed the matter for determination before the wrong committee.

2) The proceedings of the Special Committee were null and void because it was convened on the premise that the recommendations of the Administrative Sub-Committee were lawful and they were not.

3) The membership of the Special Committee was unfairly constituted because it included a councillor who had already expressed the view that Mr. Gregory was guilty.

8

A detailed narrative is contained in the judgment of the Divisional Court: Reg. v. Portsmouth City Council, Ex parte Gregory [1990] 2 Admin. L.R 681.

9

In 1990 the Council resolved to institute the same disciplinary proceedings before another tribunal. The resolution was reported in newspapers. In July 1991 the Council decided to abandon the proceedings. In the meantime Mr. Gregory had ceased to be a councillor. The decision to abandon the proceedings was taken against the background of the fact that in May 1990 Mr. Gregory was convicted of two counts involving dishonesty for which he was sentenced to three months imprisonment suspended for two years concurrent on each count. These offences were in respect of over-claiming expenses as a councillor and were unrelated to the disciplinary proceedings.

10

The claim for damages for malicious prosecution

11

On 4 March 1992 Mr. Gregory issued a writ claiming damages for malicious prosecution against the Council. The essential flavour of his case is conveyed by three allegations in the Statement of Claim. First, he alleged that there was no or insufficient evidence to justify the bringing of the disciplinary proceedings against him. Secondly, he alleged that the proceedings were motivated by political considerations, pursued by a combination of his political opponents and unscrupulous office seekers in his own party. Thirdly, he alleged that the Council knew that the proceedings could not lawfully be heard by the Administrative Sub-Committee. The pleaded Particulars of General Damage were as follows:

"1) The Plaintiff has suffered very substantial loss of reputation and he and his family have suffered very considerable strain.

2) He has been subjected to offensive and hurtful remarks in social and other situations.

3) He lost his seat as a Councillor. Before that, he was barred from attending Council functions and was struck off the list of official candidates, meaning he had to stand as an independent unofficial candidate which put him to considerable expense which would otherwise have been born by his party.

4) He and his family have all been variously subjected to gratuitous abuse in one form or another and this has greatly distressed the Plaintiff."

12

The pleaded Particulars of Special Damages were as follows:

"Legal costs, particulars of which have been delivered: £2,000

Personal expenses £150.00."

13

The Plaintiff further asserted damage to his employment prospects. He claimed aggravated and/or exemplary damages. It is important to note that the plaintiff's claim is for financial loss as well as injury to his reputation and feelings. The Council served a defence. By a Summons dated 14 May 1992 the Council applied for an order that the claim be struck out under R.S.C. Ord. 18, r. 19(1)(a), on the basis that it disclosed no reasonable cause of action.

14

On 13 October 1992 the matter came before District Judge Naylor for hearing. He ordered the claim to be struck out. Mr. Gregory appealed to the judge in chambers. Tudor Evans J. heard the appeal at Winchester on 30 April 1993. In a reserved judgment, given on 27 May 1993, the judge held that the tort of malicious prosecution is confined to criminal proceedings and certain specific types of civil proceedings. He held that internal disciplinary proceedings fell beyond the limits of the tort. The judge dismissed the appeal but granted leave to appeal to the Court of Appeal.

15

Mr. Gregory appealed to the Court of Appeal. By agreement the Court of Appeal dealt with the case as a preliminary issue arising under Ord. 33, r. 3. On 5 November 1997 by a majority (Simon Brown and Walker L.JJ.) the Court of Appeal dismissed the appeal: Gregory v. Portsmouth City Council (1998) 96 L.G.R. 569. Schiemann L.J. dissented. Simon Brown L.J. gave the leading judgment. He pointed out that on existing authority most but not all criminal proceedings, and certain specific civil processes, will ground the tort. He rejected an argument that the law should be developed beyonds these categories to extend the tort to disciplinary proceedings. He concluded, at p. 578:

"… that the tort of malicious prosecution probably does not extend beyond the already established categories of civil and criminal proceedings, and certainly not as far as the proceedings of bodies like the council who are not merely not courts of law but are not even tribunals exercising functions equivalent to courts. One can perhaps see a public policy argument for extending the tort to embrace proceedings in the latter, covered as they are by absolute immunity. But I am by no means persuaded even of that, let alone of the desirability of a further extension still to cover this case."

16

In a separate judgment Robert Walker L.J. expressed agreement with the reasons of Simon Brown L.J. He too accepted that the present boundaries of the tort of malicious prosecution are not easy to justify. He said that the proposed extension is likely to lead to numerous practical difficulties, and was a matter for Parliament: at p. 595. In an important and valuable judgment Schiemann L.J. saw the matter differently. He observed [p. 593]:

"Such rationale as there was for the various fine distinctions which we find in this branch of the law sprang from history and historical circumstances which no longer appertain. I see no advantage in retaining them. It is a commonplace of legal history that a rule is established for perfectly sensible reasons and yet is adhered to for years after the underlying reasons no longer apply.

"… While of course I accept that the common law judge will look at how the law has developed from its origins, I myself find the concept of 'true scope' of a particular tort conceptually unhelpful in the sort of exercise upon which the court is currently engaged. As I have indicated, I prefer to start from the other end, as it were. In my judgment if the facts are as pleaded in the statement of claim it is consonant with the general approach of our law as it now stands that the plaintiff has a remedy. I can see no policy reason for not giving him one…. I prefer to be guided by principle than by dicta echoing down the generations."

17

These contrasting observations capture in some measure the essentials of the debate on the present appeal before the House.

18

The issues

19

In the Statement of Facts and Issues the questions arising for decision were formulated as follows:

"1) Do the following agreed and assumed facts give rise to a cause of action in malicious prosecution, namely:

i) the agreed fact that disciplinary proceedings were instituted by a local authority against Mr. Gregory, a councillor; and

ii) the assumed facts...

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