Hurnam v Bholah and Another
| Jurisdiction | UK Non-devolved |
| Judge | LORD RODGER,LORD BROWN |
| Judgment Date | 12 July 2010 |
| Neutral Citation | [2010] UKPC 12 |
| Docket Number | Appeal No 0102 of 2009 |
| Court | Privy Council |
| Date | 12 July 2010 |
[2010] UKPC 12
Privy Council
Lord Phillips
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Appellant
Dev Hurnam
(In person)
Respondent
Not represented
Intervener
Satyajit Boolell SC DPP
Imran Afzal
(Instructed by Royds LLP)
In August 2003, the appellant, Mr Hurnam, then a well-known practising barrister, was convicted in the Intermediate Court of a charge of conspiring with his former client, Soobashing Bholah ("Soobash"), to hinder police in an enquiry regarding a larceny at the Grand Bois State Bank on 4 May 2000 by fabricating an alibi for Soobash to mislead the enquiring officers. At the trial the crucial evidence against the appellant, which the magistrates accepted, was given by Soobash. Mr Hurnam appealed against his conviction and the Supreme Court allowed his appeal on the ground that the prosecution had failed to prove the necessary intent: 2004 SCJ 91; 2004 MR 43. The State appealed to this Board which allowed the appeal and restored the conviction: Director of Public Prosecutions of Mauritius v Hurnam [2007] UKPC 24; [2007] 1 WLR 1582.
On 2 July 2003, i e, before the magistrates had given their verdict in the criminal trial against him, by plaint with summons Mr Hurnam began civil proceedings in the District Court of Grand Port. At that stage the defendants included the then Director of Public Prosecutions and the police officers who had conducted the criminal investigation against him, plus Soobash and his brother, Kailashing Bholah ("Kailash"). It is unnecessary to go into those proceedings since, after prolonged procedure and after default had been recorded, Mr Hurnam decided to put Soobash and Kailash out of those proceedings. Due notice of the motion for déAsistement d'instance to be heard on 20 June 2008 was given to them on 6 May 2008.
In the meantime, by plaint with summons dated 28 March 2008, Mr Hurnam had begun the present proceedings in the District Court of Grand Port against Kailash and Soobash for a judgment condemning and ordering the defendants jointly and in solido to pay him the sum of Rs 50,000 by way of damages. The damages are for damage and prejudice which he alleges he suffered as a result of Soobash falsely saying that Mr Hurnam had told him to lie in order to set up an alibi that he had been at the vehicle testing centre at the time of the bank robbery. He likewise claims damages for damage and prejudice which he alleges he suffered as a result of Kailash saying that Mr Hurnam had taken two sums of money which he knew were the proceeds of crime. More particularly, Mr Hurnam avers that, as a result of the defendants' false and malicious allegations, which constitute faute, he has suffered damage and prejudice "in the sum of Rs 5 million which sum he voluntarily reduces to Rs 50,000 to meet the jurisdiction" of the District Court. Kailash and Soobash have not been represented or taken any part in the proceedings.
Having heard evidence, on 4 November 2008, the District Magistrate, P D Mauree, held that Mr Hurnam had failed to prove his case against the defendants on the balance of probabilities and dismissed the case against them. Mr Hurnam appealed to the Supreme Court but, in a judgment dated 3 August 2009, the Supreme Court (Domah and Angoh JJ) dismissed the appeal.
On 10 August 2009 Devat J granted Mr Hurnam leave to appeal to the Board. Subsequently, on 10 March 2010 the State applied to be allowed to intervene to argue that the present action amounts to a collateral attack on the final decision of the Intermediate Court, whose findings were upheld by both the Supreme Court and this Board. Such a collateral attack, it was submitted, is contrary to public policy and amounts to an abuse of process. Shortly before the appeal came on for hearing, the Board decided that it should hear argument on the State's intervention. The issues were succinctly and clearly set out in a written submission prepared by junior counsel for the State, Mr Afzal, which served as a basis for the oral submissions by counsel for the State to which Mr Hurnam responded. Having heard the argument, the Board decided to postpone hearing any argument on the substance of the appeal until it had determined whether the present civil proceedings constitute an abuse of process.
In order to deal with the matter, their Lordships must refer in more detail to the criminal proceedings against Mr Hurnam and to the averments in the present civil proceedings.
Criminal Proceedings
So far as the criminal proceedings are concerned, their Lordships can do no better than begin by quoting part of the account which Lord Carswell gave in the Board's judgment in Director of Public Prosecutions of Mauritius v Hurnam [2007] 1 WLR 1582, 1584-1586, paras 2-12. In the excerpt Lord Carswell refers to Soobash as "Bholah", to Kailash as "Kaylashing", and to Mr Hurnam as "the respondent":
"2. On 4 May 2000 about 2 pm an armed robbery involving a number of persons was carried out at the State Commercial Bank in Grand Bois. About 6 pm that day two brothers were arrested on suspicion of complicity in the robbery, Bholah and his brother Gangaramsingh Bholah. Bholah was taken to Rose Belle police station, arriving about 7.30 pm, and there he was questioned during the evening. According to the evidence given by Bholah, although interviewed for a period put at some two hours in all, he declined to answer questions that evening, stating that he had a headache and would make a statement later. He was transferred in the late evening to Nouvelle France station, where he arrived at 12.25 am on 5 May.
3. The respondent was contacted that night by another Bholah brother, Kaylashing, and attended Nouvelle France station about 12.10 pm on 5 May, together with two colleagues, Messrs Hawaldar and Hurhangee. The respondent saw Bholah between 12.37 pm and about 1 pm. Bholah said in his evidence that he told the respondent that he had committed the robbery with other persons. He told the respondent during part of this interview, when, as the Intermediate Court found, he and the respondent were alone together, that his brother Gangaramsingh had taken a lorry for a 'fitness test' at Curepipe the previous day, whereupon the respondent, according to Bholah, told him not to relate anything to the police about the holdup, or he would be sentenced for a long period, and said that he would free all of them, 'tire zotte tout'. The respondent's case, on the other hand, as set out in his police statement and his evidence at trial, was that Bholah at that first interview denied committing the robbery and instructed him that he had been at the NTA fitness centre at the material time. According to the respondent's account Bholah also said that he had told the police this on the previous evening 4 May.
4. Bholah appeared along with other suspects in the District Court at 2.45 pm on 5 May, with the respondent present, and was remanded. A record appears in the court note:
'Accused 1 [Bholah] and 2 states that they have given their statement/s. Accused 3 states he wishes to give statement in presence of counsel.'
5. About 6 pm on 5 May Bholah gave a statement to Inspector Lisette, who recorded it in writing. The respondent was present during the taking of the statement. In that statement Bholah stated that on 4 May 2000 he and his brother Gangaramsingh took a lorry for a fitness test at the NTA Curepipe. He arrived at the test centre at about 1.45 pm and left at about 2 to 2.15 pm. After returning home he was called out to help with another brother's bus, which had broken down on the road and had to have a part obtained. He obtained the part and eventually arrived home about 5 pm. The police came about 6.30 pm and took Gangaramsingh and himself to Rose Belle station. He was questioned about his movements that day and 'mo ti explique zottes pareil couman mo fine dire', 'I explained to them just as I said.'
6. The respondent obtained from Kaylashing Bholah the certificate of fitness relating to the lorry examined at the test centre on 4 May and brought it to the police station. The certificate confirmed that the lorry had been at the centre on 4 May, but it did not state the precise time or the names of any persons who had brought it there.
7. On 8 May 2000 Bholah was released on bail and he was interviewed by police officers again on 12 and 16 May. On 14 June he made another written statement, which he followed by further statements on subsequent dates. In his statement of 14 June he said that his previous statements did not contain the whole truth and that he now wished to tell the truth. He claimed that a co-accused Meetoo had threatened to kill his family if he told the truth to the police. He confessed to taking part in the robbery at the bank at Grand Bois, his function being to drive one of the getaway vehicles. He went on to say that when the respondent came to see him on 5 May he related to him all about his participation in the hold-up. He said that the respondent told him to lie and to tell the police that his brother Fadoo (a name by which Gangaramsingh was known) and he went together to have the lorry tested.
8. The respondent continued to represent Bholah at three hearings in the Intermediate Court, but on 24 July 2000 Bholah told the court that he would no longer retain his services. On 27 June 2001 he pleaded guilty to aiding and abetting the robbery and was sentenced to four years' penal servitude.
9. The respondent was charged on a provisional information on three charges, two of receiving stolen property (which appear to have related to fees received by him, allegedly paid out of the proceeds of the robbery) and one of conspiracy to hinder police. The prosecution entered a nolle prosequi on the receiving charges on...
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