TBS v Metropolitan Police Commissioner, Court of Appeal - Queen's Bench Division, December 04, 2017, [2017] EWHC 3094 (QB)

Issuing Organization:Queen's Bench Division
Actores:TBS v Metropolitan Police Commissioner
Resolution Date:December 04, 2017
 
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Case No: HQ17X00659

Neutral Citation Number: [2017] EWHC 3094 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/12/2017

Before :

MR JUSTICE NICOL

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Between :

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Heather Williams QC and Fiona Murphy (instructed by Bindmans LLP) for the Claimant

Peter Skelton QC and Emma-Louise Fenelon (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant

Hearing date: 20th October 2017

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JudgmentMr Justice Nicol :

  1. The Claimant was born in September 1985. His mother was a political activist who is referred to as `Jacqui'. His father was Bob Lambert. Lambert was an undercover police officer who, using the pseudonym Bob Robinson, pretended to share Jacqui's political views and formed a liaison with her which resulted in the Claimant's birth. It is pleaded that Lambert continued to fulfil (or purported to fulfil) a father's role until late 1988 when he pretended that he had to leave to avoid prosecution. Thereafter the Claimant had no contact with Lambert until after 2012 when Lambert's role as a police officer was revealed.

  2. By these proceedings the Claimant seeks compensation for, among other things, the Adjustment Disorder with Depressed Mood which he says he has suffered as a result of finding out that his father was not a political activist but a police officer, from Lambert purporting to assume a father's role under a false identity and from Lambert abandoning his parental role towards him relying upon a false explanation.

  3. The claim is brought for misfeasance in public office and in negligence. The Defendant is the Metropolitan Police Commissioner as vicariously responsible (by virtue of Police Act 1996 s.88) both for Lambert himself and for the officers who were supervising Lambert and who, it is said, were at fault in deploying Lambert as they did and in allowing his role to continue after he had fathered a child.

  4. The Claimant's mother, Jacqui, brought her own claim in 2013 which was settled in 2014 for £425,000.

  5. The present application is by the Defendant to strike out the claim in its entirety because, it is said, it discloses no legally recognisable claim against the Defendant. The Defendant invokes CPR r. 3.4(2)(a) and says the claim should be struck out because there are `no reasonable grounds for bringing ... the claim'.

  6. The Defendant relies on the witness statement of Melanie Jones dated 11th October 2017, but in truth this is one of the many applications made under r.3.4(2) where evidence is unnecessary - see Practice Direction 3A, paragraph 5.2. The Defendant can either sustain the argument that the claim discloses no reasonable cause of action by reference to the pleading alone, or she cannot.

    The principles to be applied on a strike out application

  7. There was no significant difference between the parties as to these principles which I can summarise as follows:

    i) I must assume that the Claimant will be able to establish the facts pleaded in the Particulars of Claim - see for instance X v Bedfordshire County Council [1988] 2 AC 633 at 740H. Sometimes a strike out application is combined with an application for summary judgment. For the latter purposes the Court has to decide whether the Claimant has a reasonable prospect of making out his or her factual assertions. That is not this case.

    ii) A claim should only be struck out if it is certain to fail; Barrett v Enfield LBC [2001] 2 AC 550, 557 and Richards v Hughes [2004] PNLR 35.

    iii) In an area of law which is developing, it is not normally appropriate to strike out a claim. It is better that such development should take place on the basis of `actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purposes of the strike out.' Ibid.

    iv) In what may be regarded as an example of the previous principles, the Court should be slow to strike out a claim in negligence at an early stage on the basis that the claimant has no prospect of demonstrating that it would be fair, just and reasonable to impose a duty of care unless the position is very clear. Such a question of legal policy is generally better decided at trial - James-Bowen v Commissioner of Police for the Metropolis [2016] EWCA Civ 1217 at [34]. (I was told that the Supreme Court has granted permission to appeal in that case, but, for the time being at least, the Court of Appeal's decision stands).

    v) However, `if the court is satisfied that the case as pleaded cannot succeed on established rules of law, even if developed in accordance with principle, it must say so and relieve the parties from the expense and inconvenience of being required to deal with a claim that cannot succeed.' James-Bowen v Metropolitan Police Commissioner (above) at [14].

    The Claimant's pleaded case in misfeasance

  8. The particulars of claim allege as follows:

    `[10] BL [i.e. Bob Lambert]'s actions as aforesaid amounted to a knowing or reckless abuse of the power entrusted to him as a public officer, which he knew was likely to cause the Claimant psychiatric injury, or was recklessly indifferent to this consequence.

    Particulars of Misfeasance

    a. BL abused his position as an undercover police officer to commence and continue a sexual relationship with the Claimant's mother.

    b. BL abused his position as an undercover police officer in representing himself to the Claimant as his father under his false identity and presenting a duplicitous account of the reason for his abandonment of the Claimant.

    c. BL knew that he was not and/or could not lawfully have been authorised to commence a sexual relationship with Jacqui, to father a child with her, to fulfil a father's role under his false identity and/or to present a false explanation for his abandonment of the Claimant or was reckless as to the same, and that doing so was in plain breach of his obligations as a police officer and such guidance that was or should have been given to him.

    d. In the circumstances BL knew that his conduct as aforesaid was an abuse of his power as an undercover police officer or he was reckless as to the same.

    e. The circumstances of the Claimant's conception, early life and abandonment by BL carried with it an obvious risk that the Claimant would suffer psychiatric harm.

    f. BL knew that the Claimant was likely to suffer psychiatric injury or was recklessly indifferent to this consequence.

    g. The Claimant has suffered psychiatric injury as a result of BL's misfeasance, as set out in paragraph 18 below [This was a reference to the Claimant's Adjustment Disorder with Depressed Mood as supported by the report of Dr Warren, Consultant Psychiatrist].

    [11] Further, in so far as any of BL's supervising or managing officers or those responsible for his continued deployment knew or suspected that BL had fathered a child in the course of a sexual relationship entered into using his undercover identity, but allowed or facilitated him to continue in his undercover role behaving as described above, their actions also amounted to a deliberate or reckless abuse of their powers. Further, those officers must have known that BL's conduct in relation to the Claimant was likely to cause him psychiatric injury or were recklessly indifferent to such harm occurring. As set out in paragraph 18 below, the Claimant has suffered consequential psychiatric injury.'

    The ingredients of the cause of action of misfeasance in public office

  9. Some of these are uncontroversial. Thus, the defendant must be a public officer and the conduct complained of must have been the exercise of power by the public officer. The conduct must also be either specifically intended to injure the claimant (targeted malice) or undertaken in the knowledge that the officer has no power to do the act complained of, or reckless as to whether that is the case (untargeted malice).

  10. It is also agreed that the defendant's malice must be accompanied by a degree of awareness of the consequences of the unlawful act. However, the precise nature of this requirement was a matter of debate between the parties and I shall return to this below.

  11. The unlawful act must also result in loss to the Claimant. That element, too, was uncontroversial. Mr Skelton QC, for the Defendant, submitted that the defendant must further have foreseen that loss as a probable consequence of his actions. Ms Williams QC, for the Claimant, disputed this additional requirement, althoug

    h it seems to me that this dispute was a reprise of the precise boundaries of the element of awareness of the consequences of the unlawful act.

  12. Mr Skelton argued that there was a further requirement, namely that the Claimant had sufficient standing to sue. I understood Ms Williams to accept that, prior to his birth, the Claimant could have no cause of action. That is right, even for the period between conception and birth since a foetus, while still a foetus, enjoys no independent legal status and cannot sue - see Burton v Islington Health Authority De Martell v Merton and Sutton Health Authority [1993] QB 204 CA at p.226B. However, she argues that the Claimant does have standing to complain of matters which took place prior to his birth (or even prior to his conception) so far as those have affected his subsequent life. Mr Skelton accepted that was the case for the claim in negligence...

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