Practice and Procedure


PUBLISHED March 6, 2003

A claim against the defendant Chief Constable for damages on the basis that she was vicariously liable for negligence and misfeasance in public office on the part of a corrupt police officer and other officers had no real prospect of success and was struck out.Appeal by the claimant ('M') from a judgment of Poole J upholding the decision of a circuit judge to strike out his claim against the defendant Chief Constable. M was a motor dealer. In 1996 he entered into a business relationship with 'F' whereby both shared M's premises for the purposes of motor trading. The relationship was dissolved after F assaulted M, excluded him from the premises and retained motor cars belonging to M. F was charged with assault and later convicted. M's case was that following the incident with F he was invited by a corrupt police officer ('H') to become a police informer and to join a "club" which would provide M with protection and authorise him to purchase and sell stolen vehicles. In order to join the club M paid H ?10,000. When the relationship between M and H came to light H was prosecuted for offences of corruption. M claimed damages from the Chief Constable for wrongful arrest and false imprisonment for handling stolen cars, and on the basis that the defendant was vicariously liable for negligence and misfeasance in public office on the part of H and other officers. The judge held that the claims had no real prospect of success. The facts plainly justified an arrest for handling stolen cars and M was not detained for an unreasonably long time. In relation to the allegation of negligent failure to investigate the actions of F, the police did not owe a private law duty to members of the public to investigate any crime properly or at all and had not assumed any special responsibility to M in this case. The request for £10,000 by H was unlawful and in seeking and accepting the payment it was arguable that H was personally guilty of misfeasance in public office but it was plain that H was acting outside the scope of his duties so that there could be no vicarious liability. Furthermore the maxim "ex turpi causa non oritur actio" plainly applied, since M had to rely on his own illegal payment for a corrupt purpose in order to recover the £10,000 paid to H. Other allegations of misfeasance against H and other police officers failed because they did not satisfy the required combination of deliberate wrongdoing and malice. M appealed arguing that: (i) the judge wrongly decided factual issues without a trial; and (ii) wrongly applied the ex turpi causa principle.HELD: (1) The judge was entitled to conclude that in this case it was not necessary to have a trial in order for the court to be able to find that H was acting independently and for his own profit rather than adopting a wrong method of performing his duties for which the defendant would be responsible and that M knew what he was doing was wrong and unlawful. (2) Both the knowing participation in corruption and the intended handling of the stolen cars were serious criminal acts and the ex turpi causa principle applied both to the £10,000 payment to H and the sum of £50,000 claimed by M in respect of stolen motor vehicles removed by the police from M's premises. (3) The claim for wrongful arrest was plainly unsustainable and M was not detained for an unreasonably long period of time at the police station. (4) The judge was right that there was no special relationship or assumption of responsibility in this case imposing on the police a duty of care in respect of M's property allegedly stolen or removed by F. The fact that M was a police informer did not justify the imposition of such a duty. There were no factors which rendered it fair, just and reasonable to impose such a duty. (5) The claim of misfeasance against other officers was not adequately pleaded and was bound to fail because there was no allegation of bad faith, targeted malice or recklessness on the part of any other officer.Appeal dismissed.

[2003] EWCA Civ 284