Wood v Chief Constable of West Midlands Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Rix,LORD JUSTICE RIX,Lord Justice May,Dyson LJ,Wall LJ |
| Judgment Date | 08 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1638,[2004] EWCA Civ 695 |
| Docket Number | Case No: A2/2003/2797,A2/2003/2797 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2004 |
[2004] EWCA Civ 1638
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice May
The Right Honourable Lord Justice Dyson and
The Right Honourable Lord Justice Wall
Case No: A2/2003/2797
EDWARD GARNIER QC, RICHARD PERKS and AIDAN EARDLEY (instructed by LEGAL SERVICES DEPARTMENT) for the RESPONDENT
ADRIENNE PAGE Q.C. and WILLIAM BENNETT (instructed by PETER CARTER RUCK & CO) for the APPELLANT
Introduction
Vehicle Salvage Group Limited ("VSG") was incorporated in November 1998 by the claimant, Ben Wood, and Gary Hart. Its business in the West Midlands was salvaging motor vehicles which had been damaged beyond repair. By April 1999, the claimant worked full time for VSG.
Superintendent Mulligan, then a Detective Chief Inspector, had a responsibility for crime prevention in the West Midlands. He and other police officers received or gleaned information about Hart's salvage activities. On 21 st July 1999, Mr Mulligan arrested Hart for alleged offences of theft, handling stolen goods and burglary. Seventeen admittedly stolen vehicles and parts of stolen vehicles were found at Hart's home premises. In due course, he was committed for trial in the Crown Court. In July and October 1999, a local newspaper published two short articles about his arrest and committal.
In September 1999, Mr Mulligan wrote and sent three letters. On 6 th September 1999, he wrote to John Wagstaff and William Arnold. On 10 th September 1999, he wrote to Neil Simpson. Mr Wagstaff was manager of the Association of British Insurers Crime and Fraud Prevention Bureau. Mr Arnold was an independent insurance assessor. Mr Simpson worked for Markfield Insurance Brokers, who handled motor insurance for Tarmac plc.
In these defamation proceedings against the Chief Constable of West Midlands Police, Mr Wood maintained that each of the letters was defamatory of him. It is not disputed but that Mr Mulligan wrote the letters in his capacity as a police officer on behalf of the defendant. One of the defences was that the letters were published on occasions of qualified privilege.
Facts
The letter to Mr Simpson contained the following:
"Mr Hart has recently been arrested and charged with numerous offences including stealing motor vehicles and dismantling them in order to re-sell and "ring" further vehicles. He has to date not been convicted at Court as we are awaiting a Crown Court Trial, however, I feel I must bring this to your immediate attention. On this occasion we recovered 17 stolen vehicles, many as stated already "cut up".
Mr Hart was employed for some years by Hunters Salvage, Bott Lane, Lye, West Midlands and now operates under the company name of Vehicle Salvage Group, Chester Road, Cradley Heath, West Midlands. My aim is to inform companies like yourselves of Mr Hart and his attempt to disguise his criminal activities with a veil of legitimacy. I am aware that you are using Mr Hart to salvage Tarmac vehicles and would ask that you consider your position with him. If you require any further details please do not hesitate to contact me."
The letter dated 6 th September 1999 to Mr Wagstaff was in the same terms, except that the last three sentences were not included and in their place was the following:
"I am aware that he has contracts with companies such as Tarmac and British Gas who hold insurance Bonds and I will be notifying them direct. I would ask that Mr Hart's details are circulated. Accordingly if you require further details please do not hesitate to contact me."
On 6 th September 1999, Mr Mulligan sent by fax a copy of the letter to Mr Wagstaff. He wrote additionally on the front sheet the following:
"Further to our telephone conversation last week please find the details of HART as discussed. HART used to be employed at Hunters Salvage, Bott Lane, Lye, West Midlands and now works under the company name of Vehicle Salvage Group, Chester Road, Cradley Heath, West Midlands. HART is presently on bail to Crown Court for many offences including having 17 stolen vehicles found at his home address. Some of which have been "cut up" for resale and use.
I have already contacted John Wagstaff and written to him regarding circulation to the Insurance World however, I would ask that you also circulate his details in order that he is unable to use a legitimate business front to disguise a criminal venture."
The letters did not mention Mr Wood specifically, but he was, so he said, the public face of VSG. The letters referred to him because readers would identify him as someone involved in the management of VSG. The words complained of meant and were understood to mean that he aided and abetted Hart in the commission of numerous serious criminal offences.
When he wrote the letters, Mr Mulligan had never heard of Mr Wood. It was not suggested that Mr Wood or VSG were involved in Hart's alleged criminal activities. It was noted, for instance, that the 17 stolen vehicles were recovered from Hart's home, not from the premises of VSG.
Although Mr Wood knew that Hart had been arrested and that he was again arrested for similar alleged offences in January 2000, he did not then know about the letters. He continued to work for VSG, whose formerly profitable business declined. Mr Wood was to attribute this decline, leading to his resignation and the loss of his employment, to the damaging effect of the letters, and republication of their defamatory content. The defendant's case was that, on the contrary, VSG's business declined because people came to know that Hart had been arrested and committed for trial.
Mr Wood first learned of the letters at Hart's criminal trial in May 2001. The trial judge had to consider allegations of abuse of process and of failure by the prosecution to give adequate disclosure. One matter relied on by the defence was alleged impropriety and bad faith implicit in the letter of 10 th September 1999 which Mr Mulligan had written to Mr Simpson. The trial judge rejected the allegation of bad faith, but he deprecated the writing of the letter, saying that it was thoroughly ill-judged. He was told that the letter was written "because this is the sort of thing insurers like to know". It was a chilling thought, he said, that the police, when they have arrested and charged a suspect, may then write to any party who has a relationship with that suspect to suggest they should review that relationship. He directed that Mr Mulligan's actions must be brought to the attention of the Chief Constable. The judge required to be informed of the action which was taken.
Having considered questions of disclosure, the judge declined to order a stay, but ordered further disclosure. Rather than making such further disclosure, the prosecution offered no evidence and Hart was acquitted.
Following the trial judge's reference, at the direction of the Chief Constable Mr Mulligan was the subject of an internal police investigation under the Police (Conduct) Regulations 1999. It was alleged that he:
"Wrote a number of letters to insurance companies and other businesses, prior to HART's trial stating that your aim was to warn the "insurance world" of HART's attempt to disguise his illegal dealings with a veil of legitimacy."
The outcome of the investigation was that Mr Mulligan received "advice".
In the present proceedings, the defendant claimed public interest immunity against disclosure of the written outcome of the investigation, which, contrary to the trial judge's direction and the terms of a letter dated 14 th March 2002 written by the Deputy Chief Constable, had not by October 2003 been communicated to the trial judge. Conrad Seagroatt QC, sitting as a Deputy High Court Judge, decided that the document was material to the defendant's defence of qualified privilege in the present proceedings, and that the public interest in disclosure outweighed the public interest in preserving confidentiality. The material parts of the report were accordingly disclosed. These included that Mr Mulligan "offers no explanation why he [wrote the letters] prior to Hart being convicted".
The report concluded that the letters were written before Hart was convicted and that they implied that the recipients should consider whether or not to cease doing business with Hart. This had left the West Midlands Police open to a civil action. There was evidence therefore to substantiate a misconduct charge under "Fairness and Impartiality" against Superintendent Mulligan contrary to identified Regulations of the Police (Conduct) Regulations 1999. Mr Mulligan was accordingly given "advice", but there was no written record of its terms. Mr Mulligan said in evidence in the present proceedings that there was no finding of guilt against him and that he was not criticised. That does not appear to accord entirely with the written record disclosed pursuant to Mr Seagroatt's order.
Mr Wood issued his claim on 20 th March 2002. This was well outside the statutory one year period of limitation for libel actions in section 4A of the Limitation Act 1980 as amended by the Defamation Act 1996. But he had not known of the letters until May 2001 and he successfully applied to the court for a direction under section 32A of the 1980 Act that section 4A should not apply to his libel claim. I refer to section 32A in greater detail later in this...
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