Malone v Metropolitan Police Commissioner

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE ROSKILL
Judgment Date26 May 1978
Judgment citation (vLex)[1978] EWCA Civ J0526-7
Date26 May 1978
CourtCourt of Appeal (Civil Division)

[1978] EWCA Civ J0526-7

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

From: Mr. Justice Wien, Q.B.D. (In Chambers)

Before:

Lord Justice Stephenson

and

Lord Justice Roskill

James Malone
Respondent (Plaintiff)
and
The Commissioner of the Metropolitan Police
Appellant (Defendant)

MR. JOHN HAZAN, Q.C. and MR. LEONARD GERBER (instructed by The Solicitor, Metropolitan Police, SW1) appeared on behalf of the Appellant (Defendant).

MR. DANIEL SEROTA and MR. CHARLES GORDON (instructed by Messrs. David Hanson & Co., W14) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE STEPHENSON
1

This case concerns a large amount of money in English and foreign currency seized and retained by the police on behalf of the Appellant Commissioner (the Defendant) but claimed as his property by the Respondent Malone (the Plaintiff).

2

In March 1978, by specially indorsed writ, the Plaintiff claimed delivery up of 514 Bank of England notes to the value of over £6,000 and United States dollar notes and Italian lira notes to the value, at present exchange rates, of about £3,000. He alleged that they had been wrongfully in the Defendant's possession for a year (since 22 March 1977) and the Defendant hadrefused to deliver them up on demand. He also claimed damages for their detention. The circumstances in which the police had taken the notes and by which the Defendant claimed to be authorised by law to take and detain them are set out in para.3 of his Defence served on 10 April 1978:

"(a) From the beginning of 1977 police officers commenced an observation on the activities of the Plaintiff and various of his associates".

I will not read out paras.(b) to (e), but I start at (f):

(f) Immediately thereafter the search warrant was executed and police officers took possession of a large number of items from the said house which were subsequently identified by witnesses to be goods stolen from them by means of burglary

(g) On 22 March 1977 after the arrest of the Plaintiff Detective Sergeant Ware in possession of a search warrant in respect of 15 Aldebert Terrace went to the said address with other officers and together with the wife of the Plaintiff who had been arrested on a charge of dishonestly handling stolen goods knowing or believing the same to be stolen.

(h) The search warrant was then executed and amongst property seized by Detective Sergeant Branchflower were the various bank notes the subject of the proceedings herein which together with a grandfather clock movement were found in a concealed wall cupboard in the basement kitchen of the aforesaid premises.

(i) The grandfather clock movement has been identified as stolen by means of a burglary, and other property seized has been identified subsequently by witnesses to be goods stolen from them by means of burglary.

(j) On 26 September 1977 the Plaintiff and eight other persons were committed for trial from the Horseferry Road Magistrates Court to the Inner London Crown Court.

"(k) The indictment against the Plaintiff and his co-accused charges the Plaintiff with conspiracy to dishonestly handle stolen goods between 1 January 1976 and 23 March 1977 and also with four substantive counts of handling stolen goods".

3

On 29 March 1978 the Plaintiff's advisers took the remarkable step of issuing a summons for judgment under Order 14. That summons was supported by an affidavit from an articled clerk in the firm of the Plaintiff's solicitors swearing that he verily believed that there was no defence to the action.

4

At the hearing of the summons Master Elton had before him four further affidavits. The Plaintiff himself swore that, in addition to the sum of money claimed, police officers had seized the sum of £1,419 in Bank of England notes which had been returned to him through his solicitors on 29 March 1977. The senior partner in the firm of his solicitors set out two requests in 1977for the return of the sum of about £11,000 and swore:

"(2) Det. Sgt. Ware refused to release the said money, giving the reason on each occasion that if the Plaintiff were to be found guilty at his trial he, Det. Sgt. Ware, might be criticised by the trial judge in the event that a compensation order or an order for costs were made against the Plaintiff and it transpired that such orders could not be satisfied without the aid of the sum of about £11,000".

5

It was not disputed before us that the £1,49 was found on the Plaintiff's person when arrested and was returned to him a week later, and that Det. Sgt. Ware had said substantially what he was alleged to have, said in the paragraph I have just read.

6

In opposition to that summons the Defendant filed affidavits by Det. Sgt. Branchflower and Det. Sgt. Ware. The former corrected the number found of two denomination of English bank notes, which increased the total value of those to over £7,000, and swore to their discovery as subsequently particularised in the Defence. The latter was the officer in charge of the case against the Plaintiff, deposed to the Plaintiff's committal, produced schedules of stolen property including that found at the Plaintiff's two addresses, and concluded with these paragraphs:

(6) With regard to the various bank notes seized by Det. Sgt. Branchflower on 22 March 1977 from the concealed wall cupboard at 15 Aldebert Terrace consisting of notes of English, American and Italian denominations I have reason to believe on the available evidence that this was money used by the Plaintiff to pay burglars, thieves and other dishonest handlers for stolen property he was purchasing and accordingly the bank notes will be valuable and the best evidence in the Plaintiff's forthcoming trial.

"(7) Accordingly I am advised and verily believe that there is a proper Defence to the Plaintiff's claim and ask this Honourable Court to dismiss the application for leave to sign judgment and grant the Defendant unconditional leave to defend".

7

It is not disputed, notwithstanding this affidavit and the return of the £1,419, that the Plaintiff has been granted Legal Aid to defend himself on these charges. Instead of dismissing the application and ordering the Respondent to pay the costs forthwith under Order 14, Rule 7(1), the Master gave the Defendant unconditional leave to defend, and the Defendant served the Defence from which I have already read. That led the Plaintiff's legal advisers to take two further steps in the action: to appeal against the Master's order and to amend the Statement of Claim on 27 April 1978 by adding a claim for an injunction (in terms unspecified).

8

On 2 May the Plaintiff's appeal and his application for a mandatory injunction ordering the Defendant forthwith to deliver up to the Plaintiff the bank notes referred to in the Statement of Claim came together before Mr. Justice Wien. In the approved note which we have of his judgment the judge stated that "the matter can be disposed of by my deciding the application for an injunction". He read the affidavits I have already mentioned and a further affidavit from another member of the firm of the Plaintiff's solicitors in these terms. I read from Mr. Klahn's affidavit:

(1) I have perused the committal documents in my possession regarding the Plaintiff's trial at the Inner London Crown Court on 6 June 1978 and the banknotes referred to in the Plaintiff's Statement of Claim are not exhibits in the trial. I produce list of exhibits…

"(2) I have been informed by the Plaintiff and verily believe that although he has substantial assets in his two properties in London and Dorking, he has at present very limited liquid assets and requires the money he is claiming in his action in order to nay his solicitors fees at his trial on 6 June 1978".

9

No argument was addressed to him on the application of American Cyanamid v. Ethicon Limited (1975 AC 396), but the argument was confined to two points, to which I must come in due course. At the end of the argument the judge made no order on the appeal except that the costs of the appeal were to be costs in the cause; but he granted the injunction, ordered the costs of the application for it to be the Plaintiff's in any event and stayed execution for seven days pending an appeal.

10

I at first found this a surprising result of the hearing of the appeal and application. If the judge thought, as he clearly did, that the Defendant's detention of the notes was unlawful, why did he not allow the appeal, for there was nothing left of his action except a possible but unreal claim for nominal damages? Yet he left the Master's unconditional leave to defend and ordered costs to be costs in a cause which his injunction had brought to an end. If, on the other hand, he thought that there was an arguable defence and an issue to be tried, why did he grant the injunction?

11

The answer appears to be that both parties agreed to his disposing of the whole action in this way, as was done by Mr. Justice Talbot in Ghani v. Jones (1970, 1 QB at 698D); so that the Judge cannot be criticised for making two apparently inconsistencyorders. It was important that the fate of the bank notes should be decided before the criminal trial came on. Accordingly no point was raised in the Appellant's Notice of Appeal that an injunction was not an appropriate remedy on the ground that there is a serious issue to be tried, damages would be an adequate remedy and the balance of convenience tips against the injunction granted. And though at one time Mr. Hazan was disposed to argue the point on behalf of the Defendant, he agrees with Mr. Serota, for the Plaintiff, that we should disposed of the action by deciding the issues between them on the grounds raised in the Notice of Appeal. I feel bound to express my opinion that, had we been asked to consider that other ground, Mr. Serota would have had the greatest difficulty in persuading me that this injunction should have been granted, whether the...

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