Roy v Prior

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Wilberforce,Lord Diplock
Judgment Date07 July 1970
Judgment citation (vLex)[1970] UKHL J0707-2

[1970] UKHL J0707-2

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Wilberforce

Lord Diplock

Roy
and
Prior

Upon Report from the Appellate Committee, to whom was referred the Cause Roy against Prior, that the Committee had heard Counsel, as well on Monday the 20th as on Tuesday the 21st, days of April last, upon the Petition and Appeal of Premananda Roy, of 863 Finchley Road, London, N.W.11, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 15th of July 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Ronald Albert Prior, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 15th day of July 1969, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice McKenna, of the 25th day of June 1969, thereby Set Aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,

1

For the reasons given by my noble and learned friend Lord Morris of Borth-y-Gest I would allow this appeal.

Lord Morris of Borth-y-Gest

My Lords,

2

The Appellant (the plaintiff) brought a civil action against the Respondent claiming damages for malicious arrest. The plaintiff who is a medical practitioner alleges that the defendant who is a solicitor wrongly procured his (the plaintiff's) arrest and imprisonment by instituting judicial process maliciously and without reasonable cause.

3

The defendant acted on behalf of a Mr. Advani who was charged with a criminal offence and who was tried at the Central Criminal Court. Mr. Advani had been a patient of the plaintiff. It was thought that the plaintiff could give medical evidence as to Mr. Advani's responsibility for his actions. The defendant on or about the 27th May 1968 issued a witness summons requiring the plaintiff to attend as a witness at the trial of Mr. Advani. The plaintiff claims that the defendant did not take the necessary steps to tell him (the plaintiff) of the issue of the summons or to serve it. The trial of Mr. Advani took place some 16 days later i.e. on the 12th June 1968. The plaintiff claims that on that date the defendant, acting maliciously and without reasonable or probable cause, instructed counsel to apply to the trial judge for the issue of a warrant for the arrest of the plaintiff and that in support of the application he (the defendant) falsely stated on oath that the plaintiff was evading service. The result was that a warrant was issued. At about 1 a.m. on the 13th June 1968 the plaintiff was arrested. He was then imprisoned and kept in custody until he was brought to court at 10.30 a.m. Later he gave evidence.

4

It is provided as follows by the Criminal Procedure (Attendance of Witnesses) Act 1965:

"2.—(1) For the purpose of any criminal proceedings before a court of assize or quarter sessions a witness summons, that is to say, a summons requiring the person to whom it is directed to attend before the court and give evidence or produce any document or thing specified in the summons, may be issued out of that court or out of the High Court."

"3.—(1) Any person who without just excuse disobeys a witness order or witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court."

"4.—(1) If a judge of the High Court is satisfied by evidence on oath that a witness in respect of whom a witness order or witness summons is in force is unlikely to comply with the order or summons, the judge may issue a warrant to arrest the witness and bring him before the court before which he is required to attend:

Provided that a warrant shall not be issued under this subsection in the case of a witness subject to a conditional witness order unless notice has been given requiring him to attend the trial, nor in the case of a witness subject to a witness summons unless the judge is satisfied by such evidence as aforesaid that the witness is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings.

(2) Where a witness who is required to attend before a court of assize or quarter sessions by virtue of a witness order or a witness summons fails to attend in compliance with the order or summons, that court may—

( a) in any case, cause to be served on him a notice requiring him to attend the court forthwith or at such time as may be specified in the notice;

( b) if the court is satisfied that there are reasonable grounds for believing that he has failed to attend without just excuse, or if he has failed to comply with a notice under paragraph ( a) above, issue a warrant to arrest him and bring him before the court."

5

The facts have not yet been investigated. The reason for this is that a summons was taken out asking for an order that certain paragraphs of the plaintiff's Statement of Claim should be struck out on the ground that they disclose no reasonable cause of action. The Statement of Claim was drafted by and was signed by the plaintiff himself. The summons asked that the action should be dismissed. The summons was taken out under the provisions of Order 18 rule 19. No evidence was therefore admissible on the application. The sole question was whether on the assumption that the facts as alleged could be proved a reasonable cause of action was disclosed. We do not know whether the plaintiff is able to substantiate the allegations which he makes.

6

The Statement of Claim as drafted by the plaintiff was as follows:

"1. The plaintiff is a general medical practitioner, living at 863 Finchley Road London N.W.11, carrying on medical practice mainly at 92 St. Stephens Gardens London, W.2.

2. The defendant is a solicitor of the Supreme Court and was employed by or on behalf of one Mr. T. Advani in connection with the defence of the said Mr. Advani in a criminal cause at the Central Criminal Court.

3. The said Mr. Advani, the defendant's client, had been registered as the plaintiff's patient under the National Health Services.

4. The defendant, as the solicitor of the said Mr. Advani, issued a witness summons on or about 27th May 1968 requiring the plaintiff to attend Mr. Advani's trial as a witness.

5. The defendant omitted to take necessary and sufficient steps to intimate the plaintiff about issue of the said witness summons; omitted to take necessary and sufficient steps to serve the witness summons on the plaintiff; and thus failed to serve the witness summons altogether.

6. At the trial of Mr. Advani, on or about 12th June 1968, the defendant falsely alleged that he had taken proper steps to serve the said witness summons on the plaintiff; accused the plaintiff, maliciously and without reasonable or probable cause, of having wilfully evaded service of the witness summons; instructed Mr. Advani's counsel to apply to the judge for the issue of a bench warrant for the arrest of the plaintiff; and thus cause the judge to issue such a bench warrant.

7. In consequence of the said bench warrant, the plaintiff was arrested, detained and produced in custody before the court.

8. The said judge, after having heard the evidence of both the defendant and the plaintiff on the question of non-attendance of the plaintiff as a witness, decided to dismiss the charge of wilful evasion and discharged the plaintiff.

9. The Defendant conducted himself negligently in respect of the plaintiff in that, having omitted to take necessary and sufficient steps to intimate the plaintiff about issue of the witness summons and to take necessary and sufficient steps to serve the witness summons on the plaintiff, he the defendant, being a solicitor, failed to ascertain the reasons for the non-attendance of the plaintiff as a witness; made unfounded allegations of wilful evasion against the plaintiff; and thus improperly caused the arrest and detention of the plaintiff.

10. The plaintiff has thereby been injured in his reputation and has suffered injuries in respect of...

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