Fiona Barton QC and Alan Payne QC appear in Young v (1) Chief Constable of Warwickshire Police & (2) Director of Public Prosecutions  EWHC 308 (QB)
Young v Chief Constable of Warwickshire Police & Director of Public Prosecutions
Fiona Barton QC, acting for the Chief Constable of Warwickshire Police, and Alan Payne QC, acting for the Director of Public Prosecutions, appeared in Young v (1) Chief Constable of Warwickshire Police & (2) Director of Public Prosecutions  EWHC 308 (QB) which concerned a claim of misfeasance in public office following a collapsed murder trial in which Mr Young was a defendant.
During the trial an issue arose relating to the disclosure of covert intelligence material which ultimately resulted in the prosecution offering no further evidence and Mr Young being acquitted. He subsequently issued a claim in misfeasance on the grounds that the material should have been disclosed earlier and that the delay could only be attributed to malice. The defendants applied for strike out or summary judgment on a number of bases, including that the claim was wrongly framed as misfeasance given the claimant’s concession that there was always reasonable and probable cause to prosecute. If there was always reasonable and probable cause such that an action for malicious prosecution could not be maintained, it was not open to the claimant to circumvent the demands of that tort by framing his cause of action in misfeasance. The authority relied upon was Gizzonio & Anor v Chief Constable of Derbyshire, The Times, April 29, 1998 (Court of Appeal) In addition an essential element of misfeasance is proof of recoverable loss. To succeed in a claim for misfeasance in public office, where there is a lawful prosecution the claimant had to demonstrate some loss of liberty “additional” to the loss of liberty which his lawful prosecution (of which he could not complain) had given rise to. Unlike Karagozlu v Commissioner of Police for the Metropolis  EWCA Civ 1691 there was no such “additional” loss here.
As to that part of the case which rested on allegedly fabricated witness statements. Those statements were clearly prepared for the purpose of the criminal trial and were therefore covered by witness immunity,
Whilst the Court did not accept that it was necessarily an abuse of process to frame the claim in misfeasance, the claim was fatally flawed in that neither malice nor damage were adequately pleaded or substantiated. The claim was struck out and summary judgment was awarded in favour of the defendants.
The judgment provides valuable guidance on misfeasance claims in the context of prosecution, the impact of a ‘reasonable and probable cause’ to prosecute on pleading damage, and the scope of the ‘witness immunity’ rule.
Judgment available here.