Martin v Watson

JurisdictionEngland & Wales
JudgeLORD JUSTICE RALPH GIBSON,LORD JUSTICE McCOWAN,LORD JUSTICE HOBHOUSE
Judgment Date21 January 1994
Judgment citation (vLex)[1994] EWCA Civ J0121-4
Docket NumberCCRTF 93/0712/C
CourtCourt of Appeal (Civil Division)
Date21 January 1994
John Leonard Martin
Plaintiff/Respondent
and
Ulka Watson
Defendant/Appellant

[1994] EWCA Civ J0121-4

(His Honour Judge Goodman)

Before: Lord Justice Ralph Gibson Lord Justice Mccowan Lord Justice Hobhouse

CCRTF 93/0712/C

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BROMLEY COUNTY COURT

MR. R. CHRISTIE (Instructed by CR Burton, Penge, SE20) appeared on behalf of the Appellant

MR. J. ROSE (Instructed by Messrs Wellers, Bromley) appeared on behalf of the Respondent

1

( )

2

Friday, 21 January 1994

LORD JUSTICE RALPH GIBSON
3

This is an appeal by Mrs Ulka Watson, the defendant in proceedings in Bromley County Court, from the order of His Honour Judge Goodman made on 13th July 1992. By his order the judge gave judgment for the plaintiff, Mr John Martin, the respondent in this court, in the sum of £3,500 on the grounds that the defendant had maliciously prosecuted him for an offence of indecent exposure when to her knowledge he had not committed any such offence. I shall refer to the parties as defendant and plaintiff. By his order, the judge also gave judgment in favour of the defendant on her counter claim for the sum of £550 on the grounds that the plaintiff had maliciously prosecuted her for an offence of assault when to his knowledge she had not committed that offence.

4

The defendant sought leave to appeal against the judge's order on many different grounds with reference to various issues of fact and of law. That application came before me, as a single judge of this court, on 18th May 1993. The order made by me was that leave to appeal was granted upon one point of law only namely that the judge, in finding for the plaintiff, misdirected himself in that, on the facts found, it could not be said in law that the defendant set the law in motion against the plaintiff and was thus his prosecutor. It seemed to me then that the point of law was bad and essentially unarguable and I said so. I was wrong. The point of law is important, difficult and has been very well argued by Mr Christie. I gave leave to appeal because there was no decision of an appellate court in this country which dealt clearly with the question and it seemed, for that reason, right to grant leave.

5

Before describing the facts as found by the judge it is necessary to state in greater detail the point of law upon which the appeal turns and to place it in its context. It was common ground throughout the proceedings before the judge, and in this court, that the essential elements of the tort of malicious prosecution are as stated in paragraph 1905 of Clerk and Lindsell on Torts, 16th edition:

"In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff."

6

The main contentions of Mr Christie for the defendant have been (i) that, on the authorities, that which she was held by the judge to have done did not amount to "setting the law in motion" against the plaintiff; and (ii) that, as a matter of public policy, to be derived from the principles of the law of tort in connected areas of the law, that which she was held to have done should not be held to amount to proof that she was "the prosecutor".

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The history of the dispute.

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(i) The parties were at all material times neighbours. The plaintiff lives with his wife at 1 Denver Close, Orpington and the defendant lives with her husband at 231 Crofton Lane. The fence, which is at the side of the plaintiff's back garden, forms the boundary at the bottom of the defendant's garden. Each couple accused the other of unneighbourly conduct over much of the 13 years of their proximity. The plaintiff retired from work with British Telecom in April 1991. The defendant has long been a housewife living at home.

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(ii) The act of indecent exposure for which the plaintiff was prosecuted was said by the defendant to have occurred on 19th or 20th July 1989. She called the police. She made a statement to PC Cratchley. On 21st July DC Haynes of CID took a further statement from her. In consequence of what she said, she was asked to, and did, attend at the magistrates' court on the 27th July where DC Haynes obtained a warrant for the arrest of the plaintiff upon a charge that he had exposed his person with intent to insult the defendant contrary to section 4 of the Vagrancy Act 1824. (Reference is made in the judgment to 20th July. The charge sheet refers to 19th July. It is not suggested that anything turns on this discrepancy.) The plaintiff was arrested on 9th August and interviewed at the police station. He was bailed to appear at the magistrates' court on 10th August. On that day the Crown Prosecution Service appeared to conduct the proceedings. No evidence was offered and the case was dismissed.

10

(iii) The allegation of assault made by the plaintiff against the defendant arose out of an incident on 18th August 1989. The incident was reported to the police by both sides. The police decided to "leave them to their civil remedies". Proceedings in the magistrates' court were, however, issued by both, each against the other. The plaintiff laid his information on 27th October 1989. On the hearing of the summons issued by the defendant against the plaintiff, he was on 4th May 1990 convicted and fined. He thereupon withdrew his information and summons by letter of 17th May 1990 and the defendant then advanced her counterclaim in the proceedings in respect of that malicious prosecution.

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(iv) The plaintiff had begun his action on 20th February 1990. His pleading alleged that the defendant had laid the information against him on 27th July 1989 and the particulars of malice included an assertion that she had repeatedly, within the last two years, made similar false allegations, the last having been made on 7th August 1989. He also alleged that the police officers who had arrested and interrogated him "were acting as agents of the defendant pursuant to her information". By her defence, the defendant first admitted that she had laid the information while denying malice but, by an amended defence she asserted that, as has been common ground, she had not laid the information and had not herself applied for the warrant which was obtained on 27th July. The plaintiff's claim was not amended to allege that she was, in law, to be treated as the prosecutor in the proceedings against him by reason of any other identified acts. No point has been taken for the defendant with reference to the pleading of the claim. At the outset of the trial before Judge Goodman, Mr Christie, for the defendant, applied for an order striking out the plaintiff's claim on the ground that she had not "set the criminal proceedings in motion". That application was rejected. Subsequent events have shown, in my view, that it would have been useful if the plaintiff had been required to identify in his pleading the facts and matters relied upon in support of his allegation that the defendant had been the prosecutor against him.

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(v) The action was complicated and lengthened by the investigation by the parties of many peripheral facts by reference to which it was contended that the veracity of each was to be tested. The first part of the hearing, in which the judge heard the evidence and submissions upon the facts, took some seven days spread over a month. The judge gave judgment upon the issues of fact on 5th December 1991. The hearing was then adjourned for further arguments on the issues of law. The final judgment was given on 13th July 1992. The judgments were, in my respectful opinion, prepared with conspicuous care and skill in a case which presented difficulties with reference to the issues of fact and law.

13

(vi) Before turning to the facts found by the judge with reference to the conduct of the defendant, it is right to refer briefly to the conduct of the parties in this story which has been disgraceful for both of them. The judge called it "an appalling history". The plaintiff and his wife were "largely responsible for the trouble between the couples". Further, of course, the plaintiff was responsible for the incident in which the defendant was assaulted and for the malicious prosecution by him of her with reference to that incident.

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The findings of the judge.

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I take this account from the judge's judgment of 13th July 1992.

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(i) The defendant first complained to the police that the plaintiff had exposed himself to her in the summer of 1987, but nothing was done about it. She made a further complaint to the police on 12th July 1988. However, after discussing it with the police, she said that she did not wish to make a statement, feeling it better to ignore the plaintiff's actions. Then, on 20th July 1989, the defendant again called the police following a further alleged act of indecent exposure by the plaintiff that day. PC Cratchley called and took a statement from her that was not before the court. PC Cratchley returned to the police station and handed over the defendant's complaint to the crime desk. Normally this was a type of offence for investigation by the CID rather than by the uniformed branch. On 21st July DC Haynes called on the defendant and took a further statement from her which was before the court. Her statement concluded with the words "I am willing to attend court and give evidence if required". The appellant told DC Haynes about the alleged incident of July...

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