Relevant Law

RELEVANT LAW

1. Appeals of dismissal by Summary Judgment.

2. Misfeasance in Public Office.

3. BREACH OF Article 6 of the European Convention on Human Rights.

4. Legal Tests for Summary Judgment.

5. Legal tests for Loss of Chance Negligence.

6. Case Law for Malice in Malicious Prosecution.

APPEALS OF DISMISSAL BY SUMMARY JUDGMENT

Hearing of appeals: CPR52.21

(3) The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong (that is, in law or in fact or on the grounds that the judge erred in the exercise of his or her discretion); or

(b) unjust because of a serious procedural or other irregularity in proceedings in the lower court.

An appeal is a review. If the reason for dismissal turns, without factual dispute, then the appeal court will decide whether the first instance decision was correct. Where the first instance judge or a multi-factorial decision, the appeal court will interfere if satisfied that the first instance judge has taken into account immaterial factors, omitted to take account of material actors, erred in principle or come to a conclusion not open to him or her.

Conducting a mini-trial on disputed facts in a summary judgment application is an error of principle leading to a conclusion that the first instance judge acted outside the area of permissible disagreement in concluding that the respondent to the summary judgment application has no real prospect of success at trial.

MISFEASANCE IN PUBLIC OFFICE

Misfeasance in public office is a form of misconduct. It occurs when a public official, public servant or public body knowingly and willingly acts in a manner with the realisation that their actions are likely to causeloss or harm to another. The action is legal, but performed in a way that harms another. It is defined as:

Conduct carried out by a public officer;

2. which resulted in damage, injury or financial loss;

3. where he or she either:

a. intended to cause, or damage, loss or injury, or

b. had no concern for the third party in respect of the damage, loss or injury;

The first case is where the Public Officer, in bad faith, abuses his powers (or neglects his duties) as a public officer specifically intending to injure the claimant and the claimant suffers material harm.

The second is where the Public Officer, in bad faith, acts knowingly beyond his powers (or inconsistently with his duties) and knows that in so acting he is likely to injure the claimant (or a class of people to which the claimant belongs), and the claimant suffers material harm.

(John Murphy, Oxford J Legal Studies (2012) 32 (1): 51 citing Three Rivers DC v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 (HL) 190.)

The Ministry of Justice and Lord Chancellor can be held as the responsible party for a judge’s actions.

BREACH OF Article 6 of European Convention on Human Rights Act

Article 6 of the European Convention on Human Rights protects the right to a fair trial. In criminal law cases and

cases to determine civil rights it protects the right to a public hearing before an independent and impartial tribunal.

Legal Tests For Summary Judgment

a. CPR Rules 24.2 and 3.4(b) for Summary Judgment Hearings, require a claim (or defence) to have a prospect of success.

The Court must consider whether the defendant has a “realistic” as opposed to a “fanciful” prospect of success - Swain v Hillman[2001] 1 All ER 91.

b. The Legal Test. The bar is set low. To successfully defend an application for summary judgment a litigant:

i. Must have a case which is better than merely arguable.

A “realistic” claim or defence is one which carries some degree of conviction. This means a defence which is more than merely arguable: E D & F Man Liquid Products v Patel [2003] EWCA Civ 472 at paragraph [8].

ii. It is not required to show the claim will probably succeed at trial.

iii. A real prospect of success exists even if improbable. A test of whether arguments at highest could succeed.

A judge should have regard to the witness statements and also the question of whether the case is capable of being supplemented by evidence at trial .The question of whether there is a real prospect of success is not approached by applying the usual balance of probabilities standard of proof (Royal Brompton Hospital NHS Trust v Hammond 2001] BLR 297).

In other words it is only necessary to show you can argue your particulars and that if the argument succeeds

(without considering chance of success), could prove the element of the claim.

c. A Judge cannot make findings on contested facts or weigh up evidence on balance of probability.

These are matters for Trial.

In reaching its conclusion the Court must not conduct a “mini trial”.(Swain v Hillman).

A Claimant be fanciful where it is entirely without substance, or clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based (Three Rivers District Council v Bank of England).

d. A Claim can only be dismissed if it is not realistic (false or fanciful). i.e. where facts are not true, pleads no cause of

action, is subject to bad law, not supported by evidence or cannot be argued, or if argued successfully could not prove

the element of the claim.

e. Complex issues are for Trial.

Cases relying on complex inferences of fact are likely to be inappropriate for summary judgment. (Three Rivers District Council v Bank of England 2001).

See link here

Legal Tests For Loss of Chance Negligence

Negligence is defined as any act or omission which falls short of a standard to be expected of “the reasonable man.” For a claim in negligence to succeed, it is necessary to establish that a duty of care was owed by the defendant to the claimant, that the duty was breached, that the claimant's loss was caused by the breach of duty and that the loss fell within the defendant's scope of duty and was a foreseeable consequence of the breach of duty.

2. Loss of chance allows to recover from a defendant whose negligence caused the plaintiff a reduced chance of

receiving a better outcome. The remedy of damages compensates a claimant's loss of expectation.

In this case, loss of a valuable legal right to argue evidence in Trial.

The Defendant’s Skeleton Argument (para 10) confirmed this.

‘A claimant can sue a Lawyer for the failure of a claim that was dismissed by the Court on its merits, but in order to do so he must point to some material argument or evidence that was not deployed or taken into account by the Court in the failed proceedings’.

3. Case Law for how a Loss of Chance negligence should be conducted in Trial. Consider recent cases :

Perry v Raleys Solicitors [2017] EWCA Civ 314 (28 April 2017)
Haithwaite v Thomson Snell & Passmore (a firm) [30.03.09]

Theses cases confirm the principle that a Court should follow when considering Loss of Chance Negligence claims. A Court should not consider the chance of success of the lost oppurtunity to determine Negligence (in this case whether the non-submitted evidence would have succeded in the underlying Malicious Prosecution). Evaluation of lost chance is reflected in proportional damages. In other words, a Court cannot conduct a Trial within a Trial. The Supreme Court decision in October 2018, did not affect this underlying principle. It applied a balance of probability proof to the point on whether the claim would have been pursued.

In other words, it was enough to show that material evidence was not submitted to succeed in this claim.

A Court cannot conduct a Trial within a Trial, so cannot re-litigate (make decisions) on the underlying Malicious

Prosecution claim. See here.

Case Law for Malice in Malicious Prosecution

Thacker v DPP confirms evidence is necessary for a Malicious Prosecution claim.

This point was argued by the CPS to dismiss Counsel's Malicious Prosecution claim in 2011.

Thacker (supra) Kennedy LJ said: “…although Malice is for the jury rather than a Judge it is only left to the Jury if there is some evidence of it”.
Judge LJ said: “Before Malice can be left to the jury there must be some evidence from which a jury properly applying its mind to the evidence would be entitled to infer it”.

In the tort of Malicious Prosecution, facts or evidence include both those that can show or infer malice and are for a Court (or Jury) to decide in Trial. It follows that non-submitted evidence would be material evidence in the tort of Loss of Chance Negligence.