Riches v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE STEPHENSON,LORD JUSTICE LAWTON |
| Judgment Date | 27 March 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0327-4 |
| Date | 27 March 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0327-4
Lord Justice Davies
Lord Justice Stephenson and
Lord Justice Lawton
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Phillips - London)
(Revised)
The APPELLANT (Mr. F.W. Riches, Plaintiff) appeared in person.
Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent (Defendant).
This is an appeal from an order of Mr. Justice Phillips made on the 5th October, 1972, whereby he dismissed an appeal from Master Lubbock, who had on the 9th May struck out the plaintiff's statement of claim and dismissed his action as showing no cause of action and being frivolous and vexatious and an abuse of the process of the court.
The story, with regard to which one cannot help having some sympathy with Mr. Riches, the plaintiff, starts a long time ago. In November, 1963, criminal proceedings were commenced at the instigation of the Director of Public Prosecutions, who is the defendant in this case, against Mr. Riches, the now plaintiff, and a number of other people with regard to lime subsidies under the Agriculture Act, 1947. The allegation was that the Ministry were induced to provide moneys for lime subsidies in much greater amounts than they ought to have been and that the lime supplied was not in accordance with the declarations made by the accused persons. Mr. Riches himself, with two others, was the subject of three specific counts in the indictment, counts 17 to 19 inclusive, which charged him, with these two other men, with fraudulently inducing the Minister of Agriculture, Fisheries and Food to execute a valuable security. In addition to that he was, in what sometimes' has been called a rolled-up count of conspiracy, charged together with others with conspiracy to defraud the Ministry by obtaining excessive contributions of the lime subsidy.
As I say, those proceedings were commenced by Informations on the 7th November, 1963. On the 12th February, 1964, the defendants were committed for trial; and the case was heard at the Bury St. Edmunds Assizes. It took an enormously long time before the late Mr. Justice Elwes, and a verdict of guilty was returned by the jury on the 16th July, 1964. Sentences were pronounced on the17th July. Mr, Riches himself was fined and ordered to pay a large amount of costs. Eventually the case came before the Court of Criminal Appeal, as it then was, presided over by Mr. Justice Paull, on the 7th April, 1965, when at any rate so far as Mr. Riches was concerned (and we are not concerned with anybody else) his convictions were quashed, and the fine, of course, was remitted, though he was not granted any order for costs. That case, as I say - most unfortunate as it was for Mr. Riches; he has resented the whole thing; he says that he is an honest man and has never done anything wrong in his life - finished on the 7th April, 1965? As recently as the 6th March, 1972, Mr. Riches issued this writ. The claim, though perhaps not very professionally put forwardy and one would not expect it to be because he is not a lawyer, was in effect for damages for false imprisonment. I think I need not read the statement of claim, but it will be necessary to refer very briefly to two of the paragraphs in it. Shortly after the issue of the writ and the service of the statement of claim, which is dated 30th March, 1972, the defendant, through the Treasury Solicitor, took out a summons to dismiss the action, in these terms: "…. on the grounds that (l) It discloses no reasonable cause of action against the defendant; (2) It is vexatious and an abuse of the process of the court; (3) The facts and matters relied on occurred more than six years before the issue of this writ and the claim(if any, which is denied) is barred by the Limitation Act, 1939"?
The matter, as I have said, came before Master Lubbock on the 9th May, and he made the order asked for. On the 9th June the plaintiff gave notice of appeal, and the matter came before Mr. Justice Phillips on the 5th October. He upheld the master by an order which is the order under appeal; and on the 16th October and on the 21st October the plaintiff gave two notices of appeal against the decision of the learned judge.
I think that really three grounds are put forward on behalf of the Director in support of the order that was made by the master and the judge. It is said, first of all, that it is an essential ingredient, on a claim for malicious prosecution, that express malice should be pleaded, and it is said that malice was not properly pleaded in this case. It is said, secondly, that, on the facts disclosed in the evidence before the court, it is perfectly plain that it would be impossible for a judge hearing this action to come to the conclusion that there was any want of reasonable and probable cause for the prosecution, which, of course, if so, would be fatal to the plaintiff's case. It 13 said, thirdly, that as all the matters out of which this claim arises happened more than six years before the issue of the writ, the plaintiff is barred by the Limitation Act.
To deal with the first point first, the only reference to malice in the statement of claim appears in paragraphs 3 and 7. Paragraph 3 is in these terms: "That the Prosecution had in fact no evidence of criminal action whatsoever against the principal defendant, the Lime Merchant, Mr. Griffiths, but pursued the action against that defendant with equal irresponsible malice". It is to be observed that that is only dealing with the case against Mr. Griffiths, the first of the men charged; but one does find the word "malice" there. Then, in paragraph 7, "That the only reason why this plaintiff was chosen for prosecution (there being at no time any evidence against him) was political malice, the determination of his political opponents to destroy him, and that this obvious and clearly apparent malice was plainly demonstrated in other directions". It is very difficult, I think, to construe that as an allegation of malice against the then Director of Public Prosecutions; but, for myself, this being a litigant in person, were the only relevant point the point of the absence of a proper plea ofmalice by the Director, I do not think that I would feel justified in putting an end to this action. But the other two matters are quite different.
Want of reasonable and probable cause. Here, from the facts that I have already adumbrated and from the evidence that we see in the papers, these prosecutions were naturally, it being a Director's case, launched on the advice of counsel. We have the fact that the evidence put forward before the magistrates was sufficient to cause them to order this plaintiff, together with other accused, to be committed for trial. We have the fact that the jury came to the conclusion that the plaintiff was guilty as charged. It does seem to me that in those circumstances it would be utterly impossible for a judge to be able to rule - and of course it is a matter for the judge at the trial - that there was any want of reasonable and probable cause in the present case.
I would like in that behalf to refer to some words of Lord Justice Russell in an unreported case of Wenlock v. Shimwell, heard in this Court on the 27th April, 1966, where he dealt in that case with the question of reasonable and probable cause: "I may perhaps add this, that I cannot see how an allegation of prosecution without reasonable and probable cause and with malice really can stand any chance of success when you find that the view that the Director of Public Prosecutions presumably had of the evidence seems to have been shared by the committing magistrate, by the judge who allowed the matter to go to the jury, and by the twelve jurymen". I think that those words apply with great force in the present case, and I do not propose to say any more on that matter.
I do, however, want to say a word or two about the third matter, the question of limitation. Mr. Riches suggests that it was said before the master and the judge that the defendant and his advisers were not pursuing the point of limitation in this case. But I havealready read, in the course of this judgment, the summons to dismiss the action which the defendant took out. It is perfectly plain from that that, if he was not putting that point forward positively in the courts below, nevertheless he was reserving it and had it in mind and it was in the forefront of his summons.
Some authorities there are which suggest that, at any rate on an application based on the ground that a statement of claim discloses no cause of action, it is not open to the defendant to rely on the fact, if fact it be, that the matters in question arose more than six years (or whatever the appropriate limitation period might be in the individual case) before the action was commenced.
We were very properly referred by Mr. Slynn in that regard' to a case called Dismore v. Milton, reported in 1938 3 All...
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