Damages claim - reasons for striking out claims brought by the plaintiff
[2015]JRC220A
Royal Court
(Samedi)
3 November 2015
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Before :
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Advocate Matthew John Thompson, Master of
the Royal Court.
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Between
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Roy Mortimer Boschat
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Plaintiff
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And
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The Chief Officer of the States of Jersey
Police
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Defendant
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Mr Boschat appeared on his own behalf.
Advocate G. G. P. White for the Defendant.
CONTENTS OF THE judgment
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Paras
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1.
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Introduction
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1-3
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2.
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Background events
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4-45
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3.
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The nature
of the claims the plaintiff might bring
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46-49
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4.
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The legal test for striking out a claim
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50-54
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5.
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The parties submissions
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55-57
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6.
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Decision
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58-66
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JUDGMENT
the MASTER:
Introduction
1.
This
judgment represents my detailed written reasons for striking out the claims in
the order of justice brought by Mr Boschat (“the plaintiff”)
against the States of Jersey Police (“the defendant”).
2.
The
plaintiff’s allegations as set out in his order of justice which was
signed by Commissioner Pitchers on 3rd August, 2015, read as
follows:-
“1. He was wrongfully
accused of bribery, corruption and conspiracy to defraud;
2. He was subject to harassment
by way of arrest and his property being searched;
3. The then Deputy Chief
Officer of Police deliberately wrote to the Plaintiff’s major clients
advising them not to do business with the Plaintiff;
4. The Law Officers advised
that there would be no proceedings against the Plaintiff;
5. The letter written by the
Deputy Chief Officer was not rescinded;
6. When the Recovery Rota was
put out to tender the Plaintiff was informed that he would not be allowed to
tender;
7. A report into the States of
Jersey Police vehicle recovery system was commissioned from Sussex Constabulary
which recommended that the Plaintiff’s business was restored to the
recovery rota immediately but this was ignored for some time;
8. The Plaintiff was required
to upgrade his recovery vehicles and equipment within a very short space of
time to a standard which was not legally required in the Island;
9. As a consequence of the
police actions and allegations the Plaintiff lost his States and Institutional
work and his business was effectively terminated;
10. The Plaintiff complained to
the Police Complaints Authority regarding the actions of the former Deputy
Chief Officer but the report on the complaint was not completed until the
former Deputy Chief Officer has retired and there was therefore no potential
for misconduct proceedings;
11. The letter referred to
under 3 above was not made available to the investigation by the Devon and
Cornwall Police under 10 above;
12. There were delays in the
supply of documents requested from the Police by the Plaintiff which resulted
in a straightforward insurance claim being out of time;
13. The States of Jersey Police
now acknowledge that the Plaintiff has clearly been wronged by the former
Deputy Chief of Police, such admission being attached to this document.”
The relief sought was an apology and
damages for loss of business and reputation in the sum of £600,000.
3.
The order
of justice was served on 4th August, 2015. The defendant’s strike out summons
was issued on 9th September, 2015, and sought to strike out the
order of justice in its entirety on the basis it disclosed no reasonable cause
of action, was scandalous, frivolous or vexatious and/or was an abuse of
process.
Background events
4.
What has
led to the present dispute started in 2005. At that time and for a number of years
previously the plaintiff had provided recovery vehicle services to or to assist
the defendant.
5.
On 30th
November, 2005, the former Deputy Chief Police Officer of the defendant Mr
Leonard Harper (“Mr Harper”) wrote to the plaintiff giving him 14
days to bring his vehicles up to a standard known as PAS 43.
6.
It
appeared that this action led to complaints being filed by the plaintiff with
the defendant about Mr Harper’s conduct. This led to the defendant’s then
Chief Officer Mr Graham Power (“Mr Power”) writing to the plaintiff
on 30th May, 2006, asking the plaintiff to agree to someone from the
United Kingdom reviewing the recovery arrangements and to prepare a report with
recommendations.
7.
On 24th
May, 2006, a notice was served by the Professional Standards Department
(“PSD”) of the defendant, stating that some members of the
defendant had been receiving gifts or services of persons contracted to supply
services and advising any said person to contact PSD.
8.
On 7th
June, 2006, a “force order”,
which is an internal order of the defendant, was issued by Mr Harper, which
order stated that any gifts or services received from any person supplying
services to the defendant should be declared by no later than 18th June,
2006.
9.
On 12th
June, 2006, an article appeared in the Jersey Evening Post
(“JEP”). The story
reported that the defendant had acted to make sure that the defendant was seen
to be “squeaky clean” and
made allegations about police officers giving breakdown recovery work to
friends. The plaintiff was quoted
in the article, as was Mr Harper.
10. On 16th June, 2006, the JEP
published a further article which stated that more than a dozen police officers
had “admitted taken free holidays
and other freebies from a local businessman who does vehicle recovery work for
the force”. The article
further reported that Mr Harper saying that the plaintiff “was getting the majority of the police recovery work because of
backhanders and favours”. The
article went on as follows:-
“Mr Harper released
information of his investigation into the corruption allegations after Mr
Boschat asked him to explain what he had meant when he said that officers has
‘what could appear to be an unhealthy relationship’ with Mr
Boschat.
The deputy police chief said:
‘He has asked me to publicly explain the term “unhealthy
relationship”. Okay, we have
admissions from more than one dozen police officers that they have had free
holidays in Boschat’s Spanish villa, free towing services for vehicles,
and other free services from him.
‘None of these has ever
been registered, and they are in complete breach of all polices and integrity
guidelines. It should be added that
these occurred during the period when Boschat was getting a hugely
disproportionate portion of the towing work required by the States Police. In any police service, or even public
service in the world, this would be seen as an unhealthy relationship…”
11. On 5th September, 2006, the
plaintiff was arrested and his home searched.
12. On 6th September, 2006, Mr Harper
wrote to the plaintiff confirming the plaintiff “will not be called upon by the States of Jersey Police in
respect of towing or any other work until further notice”.
13. On 12th September, 2006, Mr Harper
wrote to the Constables of the twelve Parishes regarding the plaintiff’s
breakdown recovery business. This
letter stated as follows:-
“First of all can I
emphasise that the following information is extremely sensitive, relates to an
ongoing criminal investigation and must not be copied, or disclosed to any
other person without the written authority of the Deputy Chief Officer of the
State of Jersey Police.
Following an eighteen month
investigation by the Force Professional Standards Unit, two men were arrested
on Tuesday, 5th September, 2006.
One of these men, a serving Police Officer, has been charged with forty
two criminal offences under the Misuse of Computer Law. A report is also being sent to the
Attorney General in respect of charging both men with offences of Bribery and
Corruption to Defraud.
Because of the nature and
extent of the evidence gathered, this force has found it necessary to remove
the Breakdown Company ‘R. Boschat 24 Hour Recovery’ from the
authorised list of those we do business with. This is as a result of the direct
connection with that company of the second man arrested.
The evidence that we have shows
a systematic and sustained attempt by at least one States of Jersey Police
Officer and this Company to dishonestly acquire for ‘R. Boschat’, a
disproportionate share of the business from the States of Jersey Police. This has entailed the falsification of
official records, lying to members of the public, and the receipt by Police
Officers of favours and gifts. It
can be proved that the Police Officer who falsified official records to bring
business to this company, received items such as cheap diesel, free breakdown
services and use of a Spanish Villa in return. Evidence will show communications
between the Officer and the company which detail the conspiracy. In addition. Over twenty police officers
have admitted being in breach of Force Integrity Policies by receiving free
gifts and favours from the company.
It is clear from all of this,
and from further intelligence, that other agencies using this company are
themselves vulnerable to the same type of attack on their integrity. There are also issues of Public
Protection and the use of Public Money.
For those reason I see a clear need to disclose these matters to you
under the conditions outlined at the start of this letter. Whilst the States of Jersey police have
no wish, nor indeed right to seek to influence you internal decision making, I
feel that it is our duty to make this information available to you to give you
every opportunity to carry our your responsibilities in the way you think
best.”
14. This letter was not seen by the plaintiff in
2006 and was only provided to the plaintiff by the defendant in 2014. I address this delay later in this
judgment.
15. On 8th January, 2007, Mr Power wrote
to the plaintiff and stated “if you
think that the force is acting in any way which is unfairly damaging to your
business you can of cause take action through the civil courts. You are welcome to do this if you so
wish. Equally any person who thinks
that you have circulated material against them which is defamatory is able to
take legal measures against yourself should they wish to do so”.
16. On 14th September, 2007, Brodie
& Company Solicitors in Scotland wrote to the defendant stating they were
acting for the plaintiff. The
letter complained about the remarks of Mr Harper reported in the JEP articles
of 12th June and 16th June, 2006, and sought an apology
and damages. The damages sought
were compensation for the substantial loss of business the plaintiff suffered
as a result of Mr Harper’s statements.
17. The letter also indicated that the
plaintiff’s claims covered wrongful arrest and wrongful search and
seizure. Disclosure was sought of
the entire police investigation file.
18. At some point earlier in 2006 the plaintiff had
also sought legal advice in Jersey from the late Advocate Christopher Lakeman,
then a partner in Carey Olsen. On 7th
September, 2006, Advocate Lakeman received a letter from Mr Harper who stated “whilst you are correct in stating
that States Departments must make their own decisions, I would inform you that
so serious are the issues of integrity involved here, that I will be disclosing
our reasons for not using him to States Departments and other Policing Agencies
within the island.”
19. The defendant’s insurers, by a letter
dated 27th February, 2007, sent to Brodie & Company Solicitors
stated that it was the plaintiff who first approached the JEP in June 2006 and
that “it therefore appears that
your client has no case against our insured and assume that the claim has been
submitted in error.” The
insurers refused to make disclosure of any pre-action, communication or
documentation that had been requested.
20. Brodie & Company Solicitors asked, by a
letter dated 17th May, 2007, whether insurers wished to nominate
solicitors to accept service of proceedings or whether the defendant should be
served direct. The insurers replied
indicating that the defendant should be served direct. In fact no proceedings were commenced.
21. By March 2007, Advocate Lakeman was again
dealing with the matter; by this time he was a partner at Sinels. His involvement led to a meeting with
Chief Inspector Bates of the Devon and Cornwall Police to discuss the
plaintiff’s concerns.
Advocate Lakeman in particular was seeking a review of a report prepared
by the Sussex Police force in relation to the recovery scheme operated by the
defendant. The Devon and Cornwall
Police were involved to deal with the plaintiff’s complaints about Mr
Harper.
22. The Devon and Cornwall Police refused to
provide disclosure of the report of the Sussex Police because it belonged to
the defendant.
23. By a letter dated 5th March, 2007,
Advocate Lakeman complained to the then Minister for Home Affairs about the
refusal of the defendant to allow the Devon and Cornwall Police to make a copy
of the report of the Sussex Police available to the plaintiff.
24. On 6th March, 2007, the plaintiff
gave a statement to the Devon and Cornwall Police describing his arrest. He also stated “I later became aware that a letter had been sent to the twelve
Parishes by Deputy Chief Officer Harper of the States of Jersey Police. The gist of the letter I understand is
that such of the seriousness of concerns relating to my integrity that
organisations within the States of Jersey should not employ my business in the
removal of vehicles. I was aware of
the existence of the letter having been informed by Mr Harper inviting that it
had been sent out. I have not seen
the actual letter that was sent to the Parishes.” In the same interview the plaintiff
complained that Mr Harper had subjected him to unfair and disproportionate
treatment in relation to his arrest, his removal from the defendant’s
breakdown and removal rota and the investigations in relation to bribery
allegations generally.
25. On 7th March, 2007, Sinels wrote to
Mr Power asking for the Sussex report, all correspondence between the States of
Jersey Police and third parties concerning the plaintiff, his business, his
involvement in the police on call tow rota and all internal correspondence
between Mr Harper and other officers relating to the plaintiff. In the absence of disclosure, pre-action
disclosure proceedings were threatened.
26. Mr Power wrote to Advocate Lakeman on 12th
March, 2007, indicating that as soon as he could, Mr Power would provide as
much of the Sussex Police report as could be publicly released under the code
of practice on public access to information in force at that time.
27. On 15th March, 2007, Mr Power wrote
again to Sinels in which he stated had “since
prepared a brief which fully addresses the issues raised by your client and
they will be in possession of this soon”.
He also stated “please be sure that all of these issues have been fully
addressed and that further information will be provided subject to legal
advice”.
28. Advocate Lakeman responded to this letter by a
letter dated 22nd March, 2007.
29. Mr Power replied to this letter on 26th
March, 2007, and stated “please be
sure of the intention of the force to provide you with all the information to
which you are entitled and to do everything possible to facilitate for airing
for all the issues relating to your clients conduct in open court should he
choose that course of action”.
30. On 20th August, 2007, a redacted
copy of the review carried out by the Sussex Police was provided to Advocate
Lakeman. No other information was
provided in response to the request contained in Sinels letter of 7th
March, 2007.
31. On 7th October, 2008, the plaintiff
gave a further statement to the Devon and Cornwall Constabulary. At paragraph 3 he stated “I wish to complain that DCO Harper
caused my unlawful arrest, detention and search of my house, thereby abusing
his authority and that of the SOJP as a personal vendetta against me”
(emphasis added).
32. He also said in this statement that, shortly after
his arrest in 2006, “I became
aware that a letter had been sent to the twelve Parishes of Jersey by DCO
Harper stating that there were serious concerns about my integrity and
organisations within the States of Jersey, should not be employed of removing
of vehicles. I was informed by DCO
Harper that the letter had been sent out.
I wish to complain that this disadvantaged me.” In paragraph 5 of his statement he
complained about an investigation that began in December 2007 and stated “this is another example of DCO Harper
abusing his authority through the SOJP.”
33. At paragraph 6 of his statement, the plaintiff
complained that Mr Harper and the defendant “have
subjected me to a restraint on trade”. He referred particularly to the fact
that where other organisations were using his services, any request for a
vehicle recovery through the plaintiff’s business which went through the
defendant’s control room was blocked, on the orders of Mr Harper.
34. At paragraph 8 the plaintiff stated “due to this personal vendetta
perpetrated against me by DCO Harper I have incurred £21,000 in legal
fees loss of income through restraint of trade. My personal life has been affected, my
marriage has broken up because of the police actions and pressures I have been
subjected to.”
35. The plaintiff was provided with the report
submitted by the Devon and Cornwall Police in relation to the plaintiff’s
complaints on 28th July, 2009.
The relevant complaints recorded in the report and the relevant part of
the report’s response are as follows:-
“1. Mr Boschat was
prevented from tendering for the SOJP recovery rota.
“had he conducted proportionate
enquiries into this matter it is suggested that the SOJP review their actions
concerning Mr Boschat’s application to be included in the tendering
process, breaches and legislation policy could prove vulnerability for a civil
action”.
2. The unlawful arrest,
detention and search of Mr Boschat’s premises and an abuse of authority,
personal vendetta of Mr Boschat by Mr Harper.
“Given the intelligence
the SOJP was justified in their actions by arresting Mr Boschat and searching his
premises.
With regard to the allegations
of an abuse of authority and personal vendetta, as Mr Harper has retired from
service and therefore cannot be subject to any disciplinary action, no further
investigation will take place in respect of this matter. There is no evidence to suggest
criminality in respect of this part of Mr Boschat’s complaint.”
3. Mr Harper communicated
with the twelve Parishes telling them not to employ Mr Boschat and raising
concerns regarding his integrity.
“The SOJP may wish to
review the actions of Mr Harper in terms of how this could have restricted Mr
Boschat’s trade and income.”
4. Mr Harper instigated an unlawful
prosecution against me.
“the report concluded
that Mr Harper was entitled to investigate matters in relation to the
self-incriminating disclosure, to ascertain whether any criminal offences had
been committed.”
5. Restraint on Mr
Boschat’s trade by Mr Harper directing the SOJP should not call Boschat
recovery service for members of the public or public bodies who actually used
his services.”
The report noted that of the policy of the
SOJP had now changed and stated:-
“the SOJP may wish to
review the actions of Mr Harper in terms of how this could have restricted Mr
Boschat’s trade and income.”
36. The report concluded there was no criminality
surrounding the plaintiff’s complaints and that there was no potential
for misconduct proceeding as Mr Harper had retired.
37. On 26th April, 2010, the plaintiff
wrote to the Acting Deputy Chief Officer of the defendant and asked for:-
“(i) a full copy
of the Sussex report;
(ii) A full copy of the Devon &
Cornwall report;
(iii) A copy of letter sent out to States
departments and Parishes about me; and
(iv) All emails sent out to officers and
Police Complaints about me.”
38. The information requested was ultimately
provided by the defendant in various letters written to the plaintiff between 24th
July, 2014, and 3rd November, 2014.
39. In the intervening period the plaintiff tried
to obtain material he had requested in 2010 on a number of occasions from
Deputy Chief Officer Taylor and various employees of the defendant responsible
for dealing with such requests. I
comment later in this judgment on the response of the defendant.
40. On 13th December, 2012, Le Gallais
& Luce representing the plaintiff wrote to Deputy Chief Officer
Taylor. This letter stated as
follows having referred to the conduct of Mr Harper set out above, “it has been suggested that these
allegations and subsequent investigations were made maliciously and without any
basis.”
41. The letter also stated “ultimately due to the actions of Mr Harper and those under his
command Mr Boschat has suffered irreparable damage, to his reputation, his business
and also his marriage.”
42. The letter further contended that “liability for loss that Mr Boschat
suffered lay squarely with the defendant.” The letter then invited the defendant to
admit liability and stated that if this occurred, “then I am instructed by Mr Boschat not to issue proceedings
against the SOJP and enter into discussions as how best to remedy the situation
for all parties concerned.”
43. The letter went on, “notwithstanding the above I am of the opinion there are any
number of actions which might be available to Mr Boschat and as should your
response to this letter fall short of full admission of liability in this
matter, then it is likely that I shall be instructed to commence one or more
proceedings against the SOJP to make the losses suffered as a consequence of
its action towards Mr Boschat. This
letter serves as a one off courtesy to allow you on behalf of SOJP to settle
this matter in an amicable manner, acceptable to both parties and should a
favourable response not be received by this letter by close of business on 10th
January, 2013, then no further courtesy will be extended”.(emphasis
added)
44. The
response received from the insurers of the defendant was that any claim
relating to these events was now time-barred.
45. As noted above, the plaintiff only received the
information he had requested in 2010 between July and November 2014;
proceedings were served following signature of the order of justice by Commissioner
Pitchers on 3rd August, 2015. An order of justice may only be signed by
an advocate or a judge of the Royal Court not by a litigant personally.
The nature of the claims the plaintiff might bring
46. It was not in dispute between the plaintiff and
the defendant that the claims that the order of justice might cover were:-
(i)
Defamation
(ii) The tort of unlawful interference in the
contractual relations of others
(iii) Breaches of statutory duty by a police officer
(iv) The tort of misfeasance in public office
47. The tort of unlawful interference was
summarised in Pell Frischmann v Bow Valley [2008] JLR 311 at paragraph
48 and 49 and requires a wrongful interference with the actions of another:-
“The essence of the tort
therefore appears to be (a) a wrongful interference with the actions of a third
party in which the claimant has an economic interest and (b) an intention
thereby to cause loss to the claimant.”
48. The tort of misfeasance in public office was
considered in Syvret v Chief Minister [2011] JLR 343. Paragraph 4 of the head note states as
follows:-
“The plaintiff’s order
of justice did not disclose a cause of action for misfeasance in public office.
Misfeasance in public office required targeted malice by a public officer, i.e.
conduct specifically intended to injure a person or persons, committed by the
officer in the knowledge that he had no power to do the act complained of and
that the act would probably injure the plaintiff (it involved bad faith in that
the officer did not have an honest belief that his act was lawful). The
requirement that the officer should know that his act would probably injure the
plaintiff was much more than a mere requirement of foreseeability; it was a
form of intent, framed as a requirement that an officer should know of the
probability of harm in order to accommodate the cases in which an officer had
been reckless.”
49. It was common ground that the applicable
limitation period for all of these causes of action was three years from the
date damage was suffered, unless this time period could be suspended.
The legal test for striking out a claim
50. The legal test on the defendant’s
application was also not in dispute.
This is because it is clear that where a claim is clearly brought after
an applicable time limit, then the proceedings can be struck out (see Classic
Herd Limited v JMMB [2014] JRC 217 upheld on appeal at [2014] JRC 217 and Ching
v CI Trustee & Executors Limited [2015] JRC 014 at paragraph 5.
51. The real issue between the parties therefore
was whether or not prescription had been suspended having regard to the
well-known decision of the Court of Appeal in Boyd v Pickersgill & Le
Cornu [1999] JLR 284. I
considered Boyd in the case of Ching to which I have referred and set
out the relevant extracts at paragraphs 28 to 33 in which I now repeat in full
as follows:-
“28. The leading judgment on
empêchement is well known decision of the Court of Appeal of Boyd v
Pickersgill & Le Cornu [1999] JLR 284 which follows the earlier decision
of Public Services Committee v Maynard [1996] JLR 343. At page 289 line 34, Beloff J. A. stated
as follows:-
“In Maynard (4), this
Court recognised that the maxim upon which the Appellant relies (para. 21
above) was part of the customary law of Jersey. A comprehensive analysis was made of
such classic commentators as Terrien: (Commentaries du Droit Civil du Pays
et Duché de Normande) and Poingdestre: (Les Lois et Coustumes des l'lle
de Jersey). Southwell JA. said
at p.354:
“We can summarise our conclusions
so far on the application of the maxim in Jersey law in this way:-
(a) it
is common ground that the maxim can apply to the customary law of prescription
of claims in contract up to 10 years, and is preserved by Article 2 of the 1960
law in relation to prescription of claims in tort up to 3 years;
(b) the
principle underlying the operation of the maxim in Jersey law was the practical
impossibility of the Plaintiff being able to exercise his rights;
(c) mere
ignorance does not bring the maxim into operation;
(d) where
there is an impediment creating such a practical impossibility, of which
ignorance is part, then the maxim may come into operation and prevent time
running.”
In those circumstances I see no
reason, even were it open to us to do so, to review the authorities
further.”
29. Beloff J. A. then continued at
page 290, line 16 onwards to explore further what was meant by a practical
impossibility. He stated:-
“In my view, the epithet
“practical” deployed in Maynard softens rather than strengthens the
concept of impossibility. It
requires a consideration of what is in fact, not in theory, possible. While ignorance of a cause of action
does not per se trigger a suspension of the limitation period, it may, in
appropriate circumstances, constitute or create a relevant impediment. The issue before us is of what those
circumstances may consist.
The test, as it seems to me, is
whether the ignorance of the cause of action is reasonable in all the
circumstances, reasonable that is both in respect of the facts giving rise to
the cause of action and that a cause of action arises in such
circumstances. While ordinary cases
of professional negligence, as in this case, may be against a lawyer for advice
unconnected with court proceedings, it is difficult to see how it could ever be
reasonable to assert that one was unaware that a lawyer owed obligations in
contract. There may be cases,
however, where the law is uncertain e.g. in respect of an advocate’s
conduct connected in some way with court proceedings, where ignorance even of
the possibility of a cause of action may be reasonable.”
30. Beloff J.A. also went on to
explore the position where the lack of knowledge might be due to the
defendant. At page 291, line 45
onwards he stated as follows:-
“In Cartledge -v- E
Jopling & Sons Ltd [1963] AC 758 (a personal injury case) Lord Pearce
said at p.782 “Past cases have been decided on the basis that the time
runs from the accrual of the cause of action, whether known or unknown and no
case has been cited in which the plaintiff’s lack of knowledge has
prevented the time from running where that lack of knowledge has not been
induced by the defendant”.
This suggests that, at least where a defendant bears responsibility for
a plaintiff’s lack of knowledge, time may for limitation purposes stand
still.
It may well not be practically
possible for a layman to evaluate legal advice given by a lawyer. It is certainly prima facie practically
impossible for a layman to identify that he or she has not been given appropriate
legal advice. Nor would it be
reasonable, in ordinary circumstances, to expect him or her to do so. As a matter of policy it may indeed be
asked, as the amicus put it, why a lawyer should be excluded from contractual
liability for a hidden vice (i.e. failing to give advice) which manifests
itself later? The lawyer would
become the author of his own good fortune.
As the Appellant observed, equally pithily:
“if you take legal advice in
relation to a dispute with another person, and your lawyer on whom you rely
negligently fails to advise you on an aspect of that dispute and you suffer
loss as a result of that negligent omission then you could lose your right of
action against your lawyer by expiry of the limitation period without ever
knowing you had such a right”.”
31. On the facts Beloff J.A.
included that there was no practical possibility of Mrs Boyd knowing of the
failure of the respondents to advise her of the licitation procedure. He then went on to state at page 292,
lines 18 to 23 as follows:-
“Whether particular
circumstances exist which dislodge that prima facie conclusion and show that
the Appellant could reasonably have become aware (or even did become aware) of
her right to sue the Respondents for breach of contract and the basis for such
action more than 10 years before she instituted such proceedings will, I
repeat, fall to be investigated, if at all, at any trial.”
32. Southwell J.A. in describing
the test to be applied in respect of empêchement stated:-
“the test is to be applied
objectively to a reasonable person in the particular circumstances in which the
plaintiff was placed. It is not a
subjective test.”
33. Sumption J.A. stated:-
“I am satisfied that the law
regards ignorance as reasonable as a matter of legal policy where there was no
means by which the particular plaintiff could reasonably have been expected to
discover the facts on which her cause of action was based.”
52. The question of suspension of prescription by
an empêchment was also considered
in Nolan v Minerva Trust Co Limited & Ors [2014] JRC 078A at
paragraphs 502 to 511.
53. In Nolan in relation to whether or not a
claim of dishonest assistance was prescribed, the Royal Court held that it was
only in 2010 that the plaintiffs acquired knowledge “of all the facts necessary
to found an action in dishonest assistance”. The Court in Nolan also
considered the duty of an advocate or a barrister required to plead a case at
paragraph 509 as follows:-
“In addition, as
Minerva’s summary of this issue recognised, we also need to consider the
position from the more formal point of view of pleading the Nolans’
case. Para.704 of the Code of
Conduct of the English Bar provides as follows:-
“A barrister must not ...
draft any statement of case, witness statement, affidavit, notice of appeal or
other document containing:
....
(c) any allegation of fraud unless he has
clear instructions to make such allegation and has before him reasonably
credible material which as it stands establishes a prima facie case of
fraud.”
This statement reflects the
decision of the House of Lords in Medcalf v Mardell [2003] 1 AC 120,
[2002] UKHL 27, the headnote to which reads:-
“... the Code of Conduct of
the Bar did not require that counsel should, when making allegations of fraud
in pleadings and other documents, have before him ‘reasonably credible
material’ in the form of evidence which was admissible in court to
support the allegations; but that, at the preparatory stage, it was sufficient
if the material before counsel was of such a character as to lead responsible
counsel exercising an objective professional judgment to conclude that serious
allegations could properly be based upon it.”
Finally, any pleading of fraud must
be properly particularised in accordance with the principles set out by Lord
Millett in the Three Rivers case to which we have already referred in
para.143 above. Mr Preston accepted
that the same rules of pleading applied in Jersey. This Court agrees.”
54. The court then concluded at paragraph 510:-
“we did not see how any
Jersey advocate, even if instructed by the Nolans to do so, could have drafted
an order of justice alleging dishonest assistance on the part of Minerva in the
Buchannan Group Companies breaches of trust, unless and until he had a sight of
the documents disclosed in response to the Jersey injunction.”
The parties’ submissions
55. The submissions of the parties focused on empêchment and whether or not it
was necessary for the plaintiff to have the documents disclosed in 2014 in
order to plead his case, or whether sufficient was known to the plaintiff for
case to be pleaded on his behalf more than 3 years before the order of justice
was filed and served in August 2015.
56. Advocate White contended by reference to the
fact that the plaintiff was told of the letter to Parishes in 2006 and complained
about being subject to a personal vendetta in 2007 and 2008 to the Devon and
Cornwall Police that he had sufficient information much earlier than 2015 to
issue an order of justice which would not have been capable of being struck
out. It was not necessary for the
plaintiff to see the letter sent to Parishes in order to plead either unlawful
interference or misfeasance in public office. If a claim was time-barred as Advocate
White now contended, the plaintiff’s complaint was against his former legal
advisers. The plaintiff had not
been under a practical impossibility from commencing proceedings given the
complaints he was making in 20007 and 2008 and the response he received from
the Devon and Cornwall Police in July 2009.
57. The plaintiff complained that he needed
documentation in order to commence proceedings. This is what he had been told by his
advisers and until he received the documentation in 2014 he was not in a
position to commence proceedings.
He was clearly deeply unhappy at how long it took the police to respond
to his requests for information and felt he had been fobbed off.
Decision
58. Before I set out my decision, it is right to
record that I regard the conduct of the defendant in not responding to the
requests submitted by the plaintiff in 2010 for over four years as wholly
unacceptable, if not deplorable.
Advocate White quite properly did not seek to justify this delay or
indeed any earlier periods of delay in responding (bearing in mind that
requests were first made for the same documentation in 2007) and he was right
not to do so. When proper requests
for information are made to the defendant, unless it can justify not responding
to requests for information on operational grounds, the defendant must respond
within a reasonable timeframe.
Where an individual is entitled to disclosure of documents, those
documents should be provided as soon as reasonably practical. Even if there may have been concerns in
2007 about providing disclosure, there was no justification by 2010 to refuse
to provide information, when, as far as I am aware, any investigations in
relation to the plaintiff had long since concluded. I invite those with ultimate
responsibility for how information requests made to the defendant were
responded to in this case to review thoroughly what happened and to take steps
to ensure that delays of this kind which I repeat, are wholly unacceptable, do
not occur again.
59. Turning now to the claims brought by the
plaintiff, in my view these are time-barred, and in some cases do not give rise
to matters which it is appropriate for the Royal Court to resolve. To require the Royal Court to do so
would be vexatious or an abuse of process.
I will deal with each of the allegations in turn.
(i)
Complaints
about wrongful arrest and related steps set out at paragraphs 1 and 2 of the
order of justice, all occurred in 2006 and 2007. These were matters known to the
plaintiff at the time. He was
therefore fully entitled to issue proceedings inform the time of his arrest in
September 2006 to challenge this conduct.
(ii) In relation to the letter of Mr Harper of 12th
September, 2006, to the Parishes, by 2008 the plaintiff had complained twice to
the Devon and Cornwall Police that he was subject to a personal vendetta which
had caused damage to his business.
He was able to illustrate examples of this personal vendetta.
(iii) Brodie & Company Solicitors threatened to
file proceedings for damage to the plaintiff’s business or on the basis
of defamation as early as 2007.
(iv) By 2009, the report of the Devon and Cornwall
Police indicated that the defendant might be vulnerable to civil action in
respect of Mr Harper’s conduct both are preventing from tendering for the
vehicle recovery rota and in respect of Mr Harper’s letter of 12th
September, 2006. The plaintiff
received this report on 28th July, 2009.
(v) By 13th December, 2012, Le Gallais
& Luce were able to send a letter before action to Deputy Chief Officer
Taylor stating that Mr Harper’s conduct of certain investigations were
made maliciously which had caused damage to the plaintiff’s reputation,
business and his marriage and that proceedings would follow. In particular, Le Gallais & Luce
indicated that there were any number of actions which might be available to the
plaintiff.
60. Based on the material I have referred to, I
consider it was open to Le Gallais & Luce or any other Jersey lawyer firm
long before 2015 to be able to draft an order of justice alleging defamation
and the various torts I have set out above and they had sufficient information
to make such allegations against the defendant. I therefore do not consider it necessary
for the letter of 12th September, 2006, to have been produced in
order for the relevant facts to have been pleaded. The plaintiff had sufficient information
to commence proceedings at the latest when he received the report from the
Devon and Cornwall Police on 28th July, 2009, and therefore at the
latest any claim became time-barred three years after that date i.e. by 28th
July, 2012. The extracts from the
report from the Devon and Cornwall Police on 28th July, 2009, I have
set out above made it clear that if the plaintiff was unhappy with Mr
Harper’s conduct then he could issue proceedings. It may be that it can be said that the
plaintiff had sufficient information in 2008 when he gave his statement to the
Devon and Cornwall Police or even by 2007 when Brodie’s sent a letter
before action threatening proceedings but I do not have to reach a conclusion
on that point because the proceedings were issued by the plaintiff more than
three years after delivery of the Devon and Cornwall report to him, and in my
view are therefore time barred by reference to this date.
61. By 28th July, 2009, the plaintiff
knew of the letter of 12th September, 2006, knew it attacked his
integrity and had other examples of how he said Mr Harper was pursuing a
personal vendetta against him.
While these matters may have been disputed, if such a pleading had been
issued and a strike out application made on the basis that there was
insufficient evidence of bad faith, as in Ching, in my judgment this would
have been a matter for trial. This
is consistent with the remarks of Beloff J.A. in Boyd cited at paragraph
31 of Ching. The fact that
the letter of 12th September, 2006, was never produced does not
matter. The plaintiff had
sufficient information in my judgment to plead a case complaining about this
letter. This means that his claim
was time-barred by the time Le Gallais & Luce wrote in November 2012. The position is not therefore the same
as Nolan, where material information was missing and was only produced
in 2010. Only then could a claim
for dishonest assistance be properly pleaded. I find based on the material before me
that nothing had changed between July 2009 and December 2012. The information that led Le Gallais and
Luce to threaten proceedings in December 2012 was not based on any new
information because none had been disclosed. Rather it can only have been based on
information that had been available to the plaintiff since at least release of
the report from the Devon and Cornwall Police on 28th July, 2009.
62. The fact that the plaintiff was not restored to
the rota and did not have a full copy of the report from the Sussex Police or
that the Sussex report was not considered or implemented for some considerable
time again does not help the plaintiff.
Such issues go to loss and the amount of any loss, not whether or not
the defendant has acted in a manner which gives rise to an arguable breach of
duty owed to the plaintiff and a claim.
63. The plaintiff’s criticism of the
defendant for not taking action against Mr Harper and that there was no
potential for misconduct proceedings in 2009 because Mr Harper had retired is
also not a basis upon which the plaintiff can claim damages from the defendant.
Misconduct proceedings are a matter
internal to the defendant and the plaintiff cannot claim damages for failing to
hold such proceedings.
64. Likewise the unacceptable delays in the supply
of documents does not give rise to a cause of action in itself and does not
suspend the applicable limitation period in this case.
65. Finally, the fact that Deputy Chief Officer
Taylor on 24th July, 2014, wrote to Senator Ferguson (as she then
was) and stated that the plaintiff had clearly been wronged as a result of
actions by a former Deputy Chief Officer does not matter. In any event the email also makes it
clear that the plaintiff had to find a legal basis for his claim at which point
Deputy Chief Officer Taylor indicated that the claim could progress. Sadly, while there was a legal basis for
a claim to be issued by the plaintiff in July 2009 (and possibly earlier) the
claim had clearly become time-barred by 28th July. 2012.
66. Accordingly the plaintiff’s claims must
be struck out. While this is an
unhappy state of affairs for the plaintiff, and while I have expressed my
displeasure at the length of time it took the police to respond to requests for
information, a reasonable person in the position the plaintiff found himself
could have issued proceedings. I do
not know why the plaintiff did not take legal advice in 2009 when he had done
so previously. However the fact
that he had done so from two firms of lawyers between 2006 and 2008 means that it
was open to him to do so again given the clear complaints he had made prior to
2009 and the recognition of those complaints in the Devon and Cornwall Police
report released in July 2009 to the plaintiff. I therefore conclude that the plaintiff
was not under a practically impossibility from commencing proceedings by 28th
July, 2009, and accordingly strike out the plaintiff’s claim as being out
of time.
Authorities
Pell
Frischmann v Bow Valley [2008] JLR 311.
Syvret
v Chief Minister [2011] JLR 343.
Classic Herd Limited v JMMB [2014] JRC 217.
Ching
v CI Trustee & Executors Limited [2015]
JRC 014.
Boyd
v Pickersgill & Le Cornu [1999] JLR 284.
Nolan
v Minerva Trust Co. Limited & Ors [2014]
JRC 078A.