Rudall v The Crown Prosecution Service & Anor, Court of Appeal - Queen's Bench Division, November 30, 2018, [2018] EWHC 3287 (QB)

Resolution Date:November 30, 2018
Issuing Organization:Queen's Bench Division
Actores:Rudall v The Crown Prosecution Service & Anor
 
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Neutral Citation Number: [2018] EWHC 3287 (QB)

Case No: A90CF105

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CARDIFF DISTRICT REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30 November 2018

Before :

MRS JUSTICE LAMBERT

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Between:

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Mark Spackman (instructed by and for the Claimant)

Jonathan Kinnear QC and Claire Palmer (instructed by Government Legal Department) for the Crown Prosecution Service

Jason Beer QC and Georgina Wolfe (instructed by Weightmans, Solicitors) for the Chief Constable of South Wales Police

Hearing dates: 11, 12, 13, 16, 17, 18, 19, 20, 23 July and 10 October 2018

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JUDGMENT

Mrs Justice Lambert:

Introduction:

  1. This is an action for damages for malicious prosecution, misfeasance in public office and breach of s.6 Human Rights Act 1998. It is brought by Mr Phillip Rudall, a solicitor from Swansea who, between January 2002 and July 2013, was the subject of investigation by the South Wales Police Fraud Squad (``SWP'') and two prosecutions by the Crown Prosecution Service (``CPS''):

    a. in 2004, Mr Rudall and his partner, Ms Richards were charged with conspiracy to defraud and perverting the course of justice. In May 2005, after a trial at Swansea Crown Court, both were acquitted by the jury of all charges;

    b. in 2010, Mr Rudall and Ms Richards were charged with a number of offences of laundering the proceeds of a fraudulent ``Ponzi'' scheme, Lifeclub. In May 2013, the charges were dismissed by HHJ Parry QC at Cardiff Crown Court following his preliminary ruling that the ``sole and decisive'' evidence in the case (exhibit TE/91) was not admissible. In July 2013, the Crown Prosecution Service notified Mr Rudall that it would not be seeking a voluntary bill of indictment against him.

    Scope of the Trial:

  2. Mr Rudall commenced these proceedings on 25th April 2014, bringing actions against the SWP and the CPS in respect of both failed prosecutions. In November 2016, Phillips J ruled upon the Defendants' application to strike out the claims arising from the first prosecution on limitation grounds and/or for summary judgment in respect of both prosecutions on grounds that the causes of action were either legally or factually defective in some way: see [2016] EWHC 2884 (QB). The application succeeded in part:

    a. all claims arising from the first prosecution were struck out on limitation grounds and the claims for misfeasance in public office and under the Human Rights Act were restricted to alleged wrongful conduct within the 6 years preceding the claim.

    b. Phillips J ruled that, in respect of the first prosecution, the Claimant had no real prospect of establishing that there was no reasonable and probable cause.

    c. Phillips J refused to enter summary judgment in favour of the Defendants in respect of the second prosecution noting that, although there were powerful points deployed by the Defendants which would present the Claimant with significant obstacles at trial, he was not satisfied that the claim based on the 2010 prosecution had no real prospect of success.

    The action, as it advanced towards trial before me therefore was against two defendants but in respect of the second prosecution only.

  3. Following opening submissions at trial, the Claimant discontinued his action against the SWP, leaving a single defendant, the CPS.

  4. The issues were then further narrowed by the Claimant's concession that, although there remained three pleaded causes of action against the CPS, the claims for misfeasance in public office and under s.6 Human Rights Act added little and, in any event, were parasitical upon the success of the claim for malicious prosecution. The claim for malicious prosecution was therefore the main subject at trial. I set out the largely uncontroversial legal framework later in this judgment and note at this stage only that the two elements of the tort of malicious prosecution which were in issue before me were (a) whether reasonable and probable cause for bringing the charge was absent and (b) whether the prosecution was motivated by malice. After discontinuing his claims against SWP, the Claimant formally conceded that Mr Lawrence Sherrington, the CPS reviewing lawyer, was the prosecutor for the purposes of the action in malicious prosecution. It followed from this concession that, to succeed, the Claimant must prove that Mr Sherrington had no reasonable and probable cause for bringing the charge and that in bringing the charge Mr Sherrington was motivated by malice. It was the Claimant's case that Mr Sherrington was part of a ``prosecution team'' which included Counsel (leading and junior) and the police officers, all of whom were motivated by spite and ill-will. Notwithstanding this aspect of his case, the Claimant has always accepted that, following the discontinuance against SWP, it is against Mr Sherrington that he must establish his case. Mr Sherrington is therefore the focus of this case and this judgment.

  5. I mention three further points relevant to the scope of the trial before me:

    a. first, on the issue of malice, although Phillips J had ruled that the first prosecution could not found a cause of action, it was common ground between the parties that the events underlying, and the fact of, the prosecution in 2004 were potentially relevant to the issue of malice: if the first prosecution was motivated by malice then it was inherently more likely that Mr Sherrington was acting maliciously towards him when he made the charging decision in 2010. The documents in the trial bundles and the witness evidence therefore covered events going right back to the start of the police investigation into Mr Rudall in 2002 including the application for a warrant to search Mr Rudall's premises in 2002 and the decision to charge him in 2004 with conspiracy to defraud and perverting the course of justice.

    b. Given the consensus that the listing for the trial was too short, I ruled at the pre-trial review that the trial before me would deal with liability only.

    c. The trial was before me alone, the question of a jury having been dealt with at a case management hearing in July 2017.

  6. At the trial before me, Mr Rudall was represented by Mr Mark Spackman and the CPS by Mr Jonathan Kinnear QC and Ms Claire Palmer. The SWP were represented by Mr Jason Beer QC and Ms Georgina Wolfe, although for the reasons which I have already given, their involvement was limited to opening submissions. I am grateful to all Counsel for their skilful presentation of their respective cases. I am particularly grateful however to Mr Spackman who mastered at short notice the large volume of material in the case, having only been instructed late in the day (for the pre-trial review on 13 June 2018), Mr Rudall having acted as a self- represented litigant up to that point.

    The Witnesses

  7. I heard evidence from the following witnesses:

    a. Mr Rudall: Mr Rudall is now aged 66. He qualified as a solicitor in 1978. After working for the Swansea firm, Smith Llewellyn, he set up his own practice at Caer Street in Swansea undertaking a broad range of private client work. He voluntarily ceased practice in 2004 and has not returned to practice since then. The Schedule of Loss records that over the years since 2004 he has found work in various roles: for example, as a self-employed consultant and more recently as a credit risk manager at Just Cash Flow Plc in London. For much of the period covered by these proceedings, his partner has been Natalie Richards. Mr Rudall is a man of good character: he has no criminal convictions nor has he ever faced proceedings of a regulatory or disciplinary nature.

    b. Mr Lawrence Sherrington: a solicitor who qualified in 1976. He started his career in private practice in London and Bolton before joining the Lancashire County Council Prosecuting Solicitor's Department in 1980. ln May 1986 he joined what was then the Director of Public Prosecution's office in North Yorkshire, later becoming part of the CPS in November 1986. In around 1990, he was transferred to the Special Casework team and so took on an advisory role in connection with larger cases. He remained in this job until he joined the CPS Fraud Branch, based in York, from where he was working during the course of the investigation and prosecution of Mr Rudall. Mr Sherrington was the CPS prosecutor for both prosecutions (and for other related prosecutions). He retired in April 2013, but his involvement with the prosecution of Mr Rudall ceased in August 2012 due in part to ill health and for the other reasons which I set out below.

    c. Mr Gregg Taylor QC: Counsel practising from 9 Park Place Chambers in Cardiff. Mr Taylor QC was called to the Bar in 1974 and took Silk in 2001. He retired in June 2015. He practised exclusively in criminal work. He was instructed as Lead Counsel for the Crown in both prosecutions. Like Mr Sherrington, he withdrew from the second prosecution in the early autumn of 2012.

    d. Mr David Essex Williams: Counsel also practising from 9 Park Place Chambers in Cardiff. He was called in 1975. A significant proportion of his mixed practice was criminal work. He retired from the Bar in 2009 due to ill-health. He was instructed as junior counsel for the Crown and, although not present at either of the trials, he advised in connection with a number of procedural and substantive matters relating to both prosecutions.

    e. Mr Ian Lee: a solicitor and, at the relevant time, Specialist Prosecutor for the CPS. He worked from the Organised Crime Division (North) from 2011 based in Manchester and Warrington. He took over as reviewing lawyer from Mr Sherrington in August 2012.

    f. Mr Brendan Kelly QC: Mr Kelly QC was called in 1988 and took Silk in 2008. He practises from 2 Hare Court in London specialising in...

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