Negligence — Duty to take care — Existence of duty — Crown Prosecution Service — Duty owed to accused in criminal case — Administrative responsibility as prosecutor to keep court informed as to state of adjourned criminal case — Crown Prosecution Service undertaking to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Crown Prosecution Service failing to inform magistrates’ court — Plaintiff not appearing before magistrates to answer charges — Plaintiff arrested and kept in custody under warrant of arrest issued by magistrates — Whether Crown Prosecution Service under duty to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Whether Crown Prosecution Service owing duty of care to plaintiff — Whether Crown Prosecution Service immune from proceedings — Crown Proceedings Act 1947, s 2(5): Welsh v Chief Constable of the Merseyside Police and another QUEEN’S BENCH DIVISION AT LIVERPOOL (United Kingdom)

[1993] 1 All ER 692

Welsh v Chief Constable of the Merseyside Police and another
QUEEN’S BENCH DIVISION AT LIVERPOOL
[1993] 1 All ER 692
HEARING-DATES: 28 February, 1, 27 March 1991
27 March 1991

CATCHWORDS:
Negligence — Duty to take care — Existence of duty — Crown Prosecution Service — Duty owed to accused in criminal case — Administrative responsibility as prosecutor to keep court informed as to state of adjourned criminal case — Crown Prosecution Service undertaking to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Crown Prosecution Service failing to inform magistrates’ court — Plaintiff not appearing before magistrates to answer charges — Plaintiff arrested and kept in custody under warrant of arrest issued by magistrates — Whether Crown Prosecution Service under duty to inform magistrates’ court that plaintiff’s offences had been taken into consideration by Crown Court — Whether Crown Prosecution Service owing duty of care to plaintiff — Whether Crown Prosecution Service immune from proceedings — Crown Proceedings Act 1947, s 2(5).

HEADNOTE:
On 24 July 1987 the plaintiff appeared before a magistrates’ court charged with two offences of theft. He was remanded on bail to appear before the court on 19 August. On 7 August the plaintiff was due to appear in the Crown Court to be dealt with for numerous criminal matters. Before the case was called on in the Crown Court the plaintiff’s counsel informed the police officer in charge of the case, counsel for the prosecution and a representative of the Crown Prosecution Service that the plaintiff wanted the offences of theft with which he had been charged in the magistrates’ court and to which he intended to plead guilty to be taken into consideration when he was sentenced by the Crown Court. The police officer contacted the magistrates’ court to obtain the necessary details and for permission to have the offences taken into consideration. He then spoke on the telephone to a solicitor employed by the Crown Prosecution Service responsible for prosecutions in the magistrates’ court, who agreed to and approved the proposal that the offences should be taken into consideration at the Crown Court. The officer asked the solicitor to indorse the file that the offences were being taken into consideration that morning and then told counsel for the prosecution that the Crown Prosecution Service had agreed to the offences being taken into consideration by the Crown Court. It was agreed between the plaintiff’s legal advisers and the Crown Prosecution Service representative that the offences should be taken into consideration and that was in fact done when the plaintiff appeared before the judge in the Crown Court. On 19 August the plaintiff failed to answer to his bail at the magistrates’ court, believing that the magistrates had been informed that the offences had been taken into consideration. In fact the magistrates’ court was not aware of that fact and issued a warrant for his arrest not backed for bail. On 19 December the plaintiff was arrested, taken to a police station and held in custody under the warrant until he was released by the magistrates’ court on 21 December 1987. The plaintiff brought an action against the police and the Crown Prosecution Service alleging that he had suffered loss, damage and distress as the result of the defendants’ negligent failure to ensure that the magistrates’ court was informed that the offences for which he had been bailed had subsequently been taken into consideration by the Crown Court. On the application of the Crown Prosecution Service the registrar struck out the plaintiff’s claim against it pursuant to RSC Ord 18, r 19(1)(a) (Rule 19(1), so far as material provides: ‘The Court may at any stage of the proceedings order to be struck out . . . any pleading or the indorsement of any writ in the action . . . on the ground that — (a) it discloses no reasonable cause of action . . .’) on the ground that the Crown Prosecution Service did not owe the plaintiff any duty of care. The plaintiff appealed. The Crown Prosecution Service claimed immunity from proceedings under s 2(5) of the Crown Proceedings Act 1947, which provided that no proceedings lay against the Crown ‘in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process’. The Crown Prosecution Service contended (i) that in assuming responsibility for informing the magistrates’ court that the plaintiff’s offences had been taken into consideration by the Crown Court it was discharging a responsibility which it had in connection with the execution of a judicial process, (ii) that the advocate at the resumed hearing before the magistrates was immune from suit and that accordingly in that respect it was protected against the action and (iii) that the action was akin to an abuse of process in which proof of malice was an integral part of the action and that negligent breach of process was not a cause of action.

Held — (1) Section 2(5) of the 1947 Act was directed to the immunity of judicial, not administrative, functions and since the recording of the fact that an offence had been taken into consideration or communicating that fact to a particular court did not fall within the ambit of judicial functions but was instead an administrative act the Crown Prosecution Service could not claim immunity from the plaintiff’s proceedings under that Act.

(2) Although the Crown Prosecution Service was immune from any action based on the failure of the advocate at the resumed hearing before the magistrates to inform the bench that the plaintiff’s offences had been taken into consideration by the Crown Court, that immunity did not extend to any failure by the Crown Prosecution Service to carry out its general administrative responsibility or practice as prosecutor to keep the court informed as to the state of an adjourned criminal case or its particular responsibility to do so in the plaintiff’s case by virtue of having undertaken to do so; Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033 and Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 applied.

(3) An action in respect of acts or omissions which preceded a court process could be framed in negligence without proof of malice being required. Accordingly, since on the assumed facts the Crown Prosecution Service had a general administrative responsibility as prosecutor to keep a court informed as to the state of an adjourned criminal case or had in practice assumed such a responsibility and had done so in the plaintiff’s case, the relationship between the plaintiff and Crown Prosecution Service was sufficiently proximate for the Crown Prosecution Service to owe a duty of care to the plaintiff to see that the magistrates’ court was informed that the offences committed by the plaintiff had already been taken into consideration by the Crown Court. Furthermore, it was fair, just and reasonable for such a duty to exist and there were no public policy grounds to exclude the existence of such a duty. The appeal would therefore be allowed and the plaintiff’s claim reinstated in so far as it alleged negligence on the part of the Crown Prosecution Service prior to the resumed hearing before the magistrates; Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465 and Al Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833 distinguished; dictum of Lord Denning MR in Roy v Prior [1969] 3 All ER 1153 at 1155 and Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 considered.

NOTES:
For the duty of care generally, see 34 Halsbury’s Laws (4th edn) para 5, and for cases on the subject, see 36(1) Digest (2nd reissue) 21-54, 132-235.

For claims against the Crown for liability in tort, see Supplement to 11 Halsbury’s Laws (4th edn) para 13.

For the liability of the Crown in tort, see 45 Halsbury’s Laws (4th edn) para 1210, and for cases on the subject, see 11 Digest (Reissue) 692-694, 299-312.

For the Crown Prosecution Service, see 11(1) Halsbury’s Laws (4th edn reissue) paras 645-651.

For the Crown Proceedings Act 1947, s 2, see 13 Halsbury’s Statutes (4th edn) (1991 reissue) 11.

CASES-REF-TO:

Al-Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833, [1988] QB 665, [1988] 2 WLR 671, CA.
Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, [1977] 2 WLR 1024, HL.
Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229, [1987] 3 WLR 1134.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Clarke v Bruce Lance & Co (a firm) [1988] 1 All ER 364, [1988] 1 WLR 881, CA.
Davis v Radcliffe [1990] 2 All ER 536, [1990] 1 WLR 821, PC.
Hill v Chief Constable of West Yorkshire [1987] 1 All ER 1173, [1988] QB 60, [1987] 2 WLR 1126, CA; affd [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283, [1990] 2 WLR 987, CA.
McNaughton (James) Papers Group Ltd v Hicks Anderson & Co (a firm) [1991] 1 All ER 134, [1991] 2 QB 113, [1991] 2 WLR 641, CA.
Morgan Crucible Co plc v Hill Samuel Bank Ltd [1991] 1 All ER 148, [1991] Ch 295, [1991] 2 WLR 655, CA.
Myers v Elman [1939] 4 All ER 484, [1940] AC 282, HL.
Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529, [1985] AC 210, [1984] 3 WLR 953, HL.
R v Batchelor (1952) 36 Cr App R 64, CCA.
R v Hicks (1924) 18 Cr App R 11, CCA.
R v McMinn (1945) 30 Cr App R 138, Assizes.
R v Nicholson (1948) 32 Cr App R 98, CCA.
Roy v Prior [1969] 3 All ER 1153, [1970] 1 QB 283, [1969] 3 WLR 635, CA [1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 272, HL; rvsg on other grounds.
Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033, [1980] AC 198, [1978] 3 WLR 849, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.

INTRODUCTION:
Appeal

The plaintiff, Anthony Welsh, appealed from the order of District Judge Bowyer, sitting as a registrar of the High Court on 7 February 1991 whereby he struck out pursuant to RSC Ord 18, r 19(1)(a) the plaintiff’s claim against the second defendant, the Crown Prosecution Service, for damages alleging that it negligently failed to ensure that the Ormskirk Magistrates’ Court, from which the plaintiff was on bail for two offences of theft, had been informed that the offences had subsequently been taken into consideration in the Crown Court and that, as a result of that failure, the magistrates’ court had issued a warrant for the plaintiff’s arrest resulting in his detention and that he thereby suffered loss, damage and distress. The first defendant, the Chief Constable of the Merseyside Police, against whom a similar claim had been made, was not involved in the striking-out application. The facts are set out in the judgment.

COUNSEL:
AT Goff for the plaintiff; Martyn Bennett for the Crown Prosecution Service.

JUDGMENT-READ:
Cur adv vult 27 March 1991. The following judgment was delivered.

PANEL: TUDOR EVANS J

JUDGMENTBY-1: TUDOR EVANS J

JUDGMENT-1:
TUDOR EVANS J: The plaintiff appeals against the order of District Judge Bowyer, sitting as a registrar of the High Court. On 7 February 1991 he struck out the plaintiff’s claim against the second defendant, the Crown Prosecution Service, pursuant to RSC Ord 18, r 19(1)(a) on the ground that the second defendant did not owe the plaintiff any duty in law.

The plaintiff claims damages against the first defendant (the Chief Constable of Merseyside Police) and the second defendant alleging that they negligently failed to ensure that a magistrates’ court, from which the plaintiff was on bail for two offences of theft, was informed that the offences had subsequently been taken into consideration at the Crown Court. It is alleged that, as a result of the failure, the magistrates’ court issued a warrant for the plaintiff’s arrest, that he was detained and that he thereby suffered loss, damage and distress.

There is no doubt that the warrant was lawfully issued and that the plaintiff’s arrest was lawful. It is not the plaintiff’s case that the second defendant maliciously and without reasonable cause brought about the plaintiff’s arrest. His case is that there was a want of care by the second defendant in failing to record the relevant information and/or to pass it on to the magistrates’ court or in failing to ensure that the advocate who appeared at the resumed hearing when the magistrates issued the warrant was properly instructed so that he could have told the court that the offences had been taken into consideration. The issue which I have to decide is whether the second defendant owed the plaintiff a duty of care.

It is the second defendant’s case that on any view of the law it is immune from these proceedings because of the provisions of s 2(5) of the Crown Proceedings Act 1947. If not generally immune, it is submitted that the advocate at the resumed hearing is immune from suit and that accordingly in that respect the second defendant is protected against this action. But it is also contended that the action is akin to an abuse of process and that malice is an integral part of such an action. According to counsel, any act or omission which results in a legal process causing a plaintiff loss and damage must be proved to be malicious. It is submitted that negligent abuse of process is a cause of action not known to the law.

Since the appeal comes before me under Ord 18, r 19, I have to decide the issue on the assumption that the facts pleaded in the reamended particulars of claim are true: see, for example, Hill v Chief Constable of West Yorkshire [1987] 1 All ER 1173 at 1176, [1988] QB 60 at 66 per Fox LJ. But Mr Bennett, counsel for the second defendant, conceded in the course of the hearing that the facts pleaded in para 4 of the defence of the first defendant are true. It was as the result of allegations pleaded in that paragraph that the plaintiff joined the second defendant in the action but the specific allegations have not been adopted in the reamended particulars of claim. Nevertheless, Mr Goff, counsel for the plaintiff, advanced part of his argument on the assumption that the matters pleaded in para 4 are true and I shall therefore assume them as fact.

The assumed facts upon which I shall decide the issue are these. (i) The second defendant is responsible, inter alia, for the preparation and the presentation of cases in magistrates’ courts and in the Crown Court. (ii) On 24 July 1987 the plaintiff appeared before the Ormskirk Magistrates’ Court charged with two offences of theft. He was remanded on bail to appear at the court on 19 August 1987. (iii) The plaintiff was due to appear on 7 August 1987 in the Crown Court at Liverpool to be dealt with for numerous criminal matters the details of which I need not repeat. They are contained in further and better particulars of the reamended particulars of claim. (iv) On 7 August 1987 in the Crown Court but before the case was called on, counsel then representing the plaintiff informed Det Con Kanczes, the officer in charge of the case, as well as counsel for the prosecution and a representative of the second defendant, that the plaintiff had been charged with the offences of theft at the Ormskirk Magistrates’ Court, that he intended to plead guilty to them and that he wanted to have the offences taken into consideration when he was sentenced in the Crown Court. (v) Det Con Kanczes was asked to contact the magistrates’ court to obtain the necessary details and for permission to have the offences taken into consideration. (vi) Upon telephoning the magistrates’ court, the detective constable was told by a police officer that the offences were suitable to be taken into consideration. (vii) He then spoke on the telephone to a solicitor employed by the Crown Prosecution Service (and I quote now from para 4(f) of the amended defence) —

‘responsible for Ormskirk who agreed to and approved the proposal that the said offences should be taken into consideration. The solicitor told Detective Constable Kanczes the particulars of the offence. Detective Constable Kanczes told the solicitor that the matter was being taken into consideration that morning (that is the 7th August 1987) and he asked the solicitor to indorse the file accordingly.’

It is agreed that the reference to ‘the offence’ in this passage is an error. It is common ground that two offences were to be and were in fact taken into consideration. (viii) The detective constable typed out ‘another offence’ form stating that on 20 November 1986 the plaintiff stole two purses. It is unnecessary to refer to the details. (ix) The detective constable took several copies of the form to the court where the plaintiff’s case was to be heard. He gave copies of the form to counsel for the prosecution, to counsel then appearing for the plaintiff and to the representative of the Crown Prosecution Service. Further, he told counsel for the prosecution that the Crown Prosecution Service ‘at Ormskirk’ had agreed to the offences being taken into consideration on that day. (x) It was agreed between the plaintiff’s legal advisers and counsel for the second defendant that the offence should be taken into consideration. (xi) On 7 August 1987 the plaintiff appeared before a judge in the Crown Court at Liverpool, who took the offences into consideration. (xii) On 19 August 1987 the plaintiff failed to answer to his bail at the Ormskirk Magistrates’ Court, believing that the magistrates had been informed that the offences had been taken into consideration. But the court was not aware of the fact and issued a warrant for his arrest not backed for bail. (xiii) At about 11.30 pm on Saturday, 19 December 1987 the plaintiff was arrested for the theft of a cassette. He was taken to a police station, where, at about 1.05 am the next day, police officers became aware of the warrant for the plaintiff’s arrest. They arrested the plaintiff. At about 4.00 am the plaintiff was bailed to appear at a police station for the theft of the cassette but he remained in custody because of the warrant. He was transferred to another police station, where he remained until he was released by the Ormskirk Magistrates’ Court on 21 December 1987. (xiv) Throughout the arrest, the plaintiff (and his father) protested that the warrant should not have been issued because all matters had been dealt with in the Crown Court at Liverpool.

Fact (iv) is derived from the particulars of claim and the further and better particulars thereunder and from para 4. They are not in conflict. Facts (v) to (ix) come from para 4.

There is a note in the file from the learned registrar in the course of which it is stated that the ‘plaintiff’s claim is for false imprisonment’. That is not so. On the facts as I have summarised them, it is alleged that the defendants owed the plaintiff a duty of care of which they were in breach. False imprisonment as a consequence of the negligence is an essential element of the claim for damages for loss, damage and distress: see para 5 of the reamended particulars of claim.

In so far as it relates to the second defendants, the duty of care is pleaded in para 3 of the reamended particulars of claim in these terms:

‘It was a duty of the representative of the second defendant present at the Liverpool Crown Court on the 7th August 1987 to record and/or to cause to be recorded and/or to pass on and/or to cause to be passed on the information that the plaintiff had had those offences taken into consideration when he was sentenced by His Honour Judge Pickering on the 7th August 1987. Further the representatives of the second defendant knew or should have known that if the aforesaid information was not recorded and/or passed on to the Ormskirk Magistrates’ Court, the said Ormskirk Magistrates’ Court would issue a warrant for the plaintiff’s arrest when he failed to attend at the Magistrates’ Court on the 19th August 1987. Further the representatives of the second defendant knew or should have known that following the aforesaid matters being taken into consideration the plaintiff would have been told that these matters had now been dealt with and that he need not appear at the Ormskirk Magistrates’ Court for sentence thereon. In the premise the representatives of the second defendant owed the plaintiff a duty of care.’

In answer to a request for further and better particulars of the particulars of claim, it is stated that the duty is not statutory: it is owed at common law and arose from the fact that the second defendant was responsible for the preparation and presentation of cases as stated in fact (i) above.

The duty as pleaded in confined to the representative at Liverpool Crown Court. But the facts in para 4 involve the passing on to the solicitor employed by the second defendant ‘for Ormskirk’ of information that the plaintiff was asking for the two offences to be taken into consideration, the solicitor’s agreement to that course and a request made to him ‘to mark the file accordingly’, which I shall interpret as meaning that he was asked to note on the file that the offences were to be taken into consideration in order that the information would be passed on or made available to the magistrates’ court so that the magistrates would be aware of what had happened. The question of duty therefore arises at three stages: first, at the Crown Court on 7 August 1987, secondly, when the information was conveyed on that date to the solicitor for Ormskirk and, thirdly, when the advocate appearing for the prosecution failed (as it is reasonable to infer that he did) to inform the magistrates that the offences had been taken into consideration.

Mr Goff submitted that the second defendant had an administrative responsibility to record or pass on the information, alternatively, if it did not have such a responsibility, it in practice passed on such information, alternatively that it is reasonable to infer that in this particular case it undertook to do so because of the facts in (vii) above. Counsel formulated the following proposition as containing the criteria by which it is necessary to decide whether a duty of care is owed to a particular plaintiff: first, it is necessary to consider the principle of reasonable foreseeability of loss and damage and, in so far as different factors may be involved, the question of proximity. It is then necessary to consider whether it would be fair, just and reasonable to hold such a duty to exist and finally the question has to be answered whether there is any ground of public policy for excluding a duty.

I have been referred to a large number of authorities in support of this proposition, but I need only list them since Mr Bennett accepted the proposition as I have stated it. The authorities to which I was referred are Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529, [1985] AC 210, Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, Davis v Radcliffe [1990] 2 All ER 536, [1990] 1 WLR 821, Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, James McNaughton Papers Group Ltd v Hicks Anderson & Co (a firm) [1991] 1 All ER 134, [1991] 2 QB 113 and Morgan Crucible Co plc v Hill Samuel Bank Ltd [1991] 1 All ER 148, [1991] Ch 295.

Mr Bennett submitted that the second defendant did not have any administrative responsibility to pass on information. There is an affidavit sworn by Mr Nasser, a barrister employed by the Treasury Solicitor, in which he states:

‘I . . . contend that it is not part of the responsibility of the Crown Prosecution Service to record (save for its own purposes) such matters. The record of the proceedings is drawn up by an officer of the Court. Further, it is not part of the responsibility of the Crown Prosecution Service to pass on to an inferior Court such matters. The Crown Prosecution Service does not as a matter of practice receive papers regarding offences shown on TIC [taken into consideration] Forms and therefore cannot know whether such offences are the subject of proceedings or not in other courts.’

There is evidential material in the contention contained in this paragraph which would obviously be important when considering findings of fact at trial but the accuracy of which I cannot assume or assess at this stage.

But Mr Bennett submitted that, on authority, it is the duty of the police to make a record of offences taken into consideration. He relied upon R v Hicks (1924) 18 Cr App R 11, where Lord Hewart CJ said:

‘In this case . . . it is not easy to see what other charges were taken into account by the court below when it passed sentence. There is no note here on the indictment. The most convenient procedure is for the officer in charge of the case to make a list of the places, dates and offences alleged with which the court of trial is asked to deal, and to state also on what charges warrants have been issued. That list should be filed in the court below and in this Court.’

On the basis of this passage, which I agree is in the nature of a practice note, Mr Bennett submitted that it is the police who have the duty to make a note of offences which have been taken into consideration and that, so noted, the information will be passed on to any other court, superior or inferior, which has an interest in the case.

There is no direct evidence upon which I can decide whether the second defendant also had the responsibility to note or to send on the information or that they assumed it in practice. The Crown Prosecution Service was established by the Prosecution of Offences Act 1985. Neither in that Act nor in the Code for Crown Prosecutors, issued pursuant to s 10 of the Act, is there any indication of such a responsibility. The claim is put by the plaintiff as arising at common law and not from any statute. But Mr Goff relied on the fact that the second defendant is responsible for the preparation and prosecution of cases at the Crown Court and magistrates’ courts and was so in respect of the cases against the plaintiff in the Crown Court at Liverpool and the Ormskirk Magistrates’ Court. This suggests to me that the second defendant had some responsibility to keep the magistrates’ court informed, especially as it was in charge of a case which was still pending final disposal before the magistrates. If it is wrong to assume that the prosecution has a duty to keep the court informed as to the state of an adjourned criminal case, the matters contained in fact (vii) seem to be explicable at this stage only on the assumption that, at least in practice, the second defendant assumed a responsibility. Why else should the solicitor for Ormskirk be informed and then be asked to indorse the file? I think that it is reasonable to assume that the solicitor would not have been asked if it were not the practice for him to indorse the file. If the facts do not justify the inference of a practice it seems to me to follow from fact (vii) that on this occasion he was asked and he agreed to indorse the file. It is not suggested that he refused to do so. On this last assumption of fact, Mr Goff submitted that the second defendant on this occasion assumed a responsibility to pass on the information and that, in failing to do so, it was in breach of the duty. Counsel relied upon the decision of the Court of Appeal in Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283. In that case the police had assumed a responsibility to inform the prison authorities that a man in their custody and who subsequently committed suicide was suicidal but due to an oversight they failed to do so. They were held liable to the man’s widow.

Before I consider Mr Bennett’s submissions that there was no duty of care in law, I shall refer to his argument based on the Crown Proceedings Act 1947. Section 2(5) of that Act provides:

‘No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.’

Mr Bennett relied on the disjunctive part of the subsection and he contended that, if the second defendant had an administrative responsibility or assumed it in practice or in this particular case, it was discharging a responsibility which it had in connection with the execution of a judicial process.

I do not accept that submission. In my opinion, the language of the subsection shows that it is directed to the immunity of judicial and not of administrative functions. It is a subsection which is dealing with judicial functions. In my view, recording that an offence has been taken into consideration or communicating the fact does not fall within the language of the subsection.

However, Mr Bennett’s submission that the second defendant is immune from any action based upon the failure of the advocate at the resumed hearing to inform the magistrates that the offences had been taken into consideration is well founded. It is not necessary to go further than the decision of the House of Lords in Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033, [1980] AC 198. That was a case in which a solicitor, sued in negligence by his client, sought indemnity or contribution from a barrister who was alleged to have been negligent in advising and in settling pleadings in accordance with the negligent advice. The House of Lords reaffirmed the immunity which a barrister has from an action for negligence in respect of his management of a case in court. This immunity has been recognised in the relationship between the professional and lay client on the one hand and the barrister instructed on their behalf on the other. Here, the relationship is between the prosecutor and the accused, parties not on the same side, but in my view this makes no difference bearing in mind that the immunity is based on a ground of public policy: see, for example, the speech of Lord Wilberforce in Saif Ali’s case [1978] 3 All ER 1033 at 1037, [1980] AC 198 at 212. Moreover, the immunity in respect of court proceedings extends to a solicitor acting as an advocate: see the speech of Lord Wilberforce ([1978] 3 All ER 1033 at 1039, [1980] AC 198 at 215). If, therefore, a solicitor acting on behalf of the second defendant failed as an advocate in court to inform the court that the offences had been taken into consideration, the second defendant and the solicitor would be immune from any action based on that failure.

I am therefore solely concerned with the question whether the second defendant owed the plaintiff a duty of care apart from what happened at the resumed hearing.

In support of his contention that this is an action for abuse of process and that an allegation of malice is an essential part of such action, Mr Bennett relied upon Roy v Prior [1970] 2 All ER 729, [1971] AC 470. It is necessary to consider the history of that case. The defendant was a solicitor. He acted for a man charged with larceny. The plaintiff was a doctor of whom the accused was a patient. It was thought that the plaintiff could give evidence helpful to the accused at his trial. A witness summons was issued by the defendant but not served on the plaintiff. The plaintiff claimed that the defendant did not take the necessary steps to inform him about the summons or to serve it. According to the plaintiff’s case, the defendant at the trial, acting maliciously and without reasonable or probable cause, instructed counsel to apply to the judge for a warrant of arrest. The defendant gave evidence in support of the application. The judge issued the warrant. The plaintiff was detained. He alleged that the defendant falsely stated on oath that the plaintiff was evading service. The defendant applied to strike out the statement of claim as disclosing no reasonable cause of action.

The matter came before the Court of Appeal (see [1969] 3 All ER 1153, [1970] 1 QB 283) on the defendant’s appeal from the refusal of a judge in chambers to strike out the action. It is necessary to consider how the action was framed. The plaintiff had drafted the pleading himself. Its terms are set out in the speech of Lord Morris of Borth-y-Gest ([1970] 2 All ER 729 at 732, [1971] AC 470 at 472-473). It was alleged in para 5 of the statement of claim that:

‘The Defendant omitted to take necessary and sufficient steps to intimate [sic] the plaintiff about the issue of the said witness summons; omitted to take necessary and sufficient steps to serve the witness summons . . .’

It was pleaded in para 9:

‘The Defendant conducted himself negligently in respect of the Plaintiff in that, having omitted to take necessary and sufficient steps to intimate [sic] the Plaintiff about issue of the witness summons and to take necessary and sufficient steps to serve the witness summons on the Plaintiff, he the Defendant, being a solicitor failed to ascertain the reasons for the non-attendance of the Plaintiff as a witness; made unfounded allegations of wilful evasion against the Plaintiff; and thus improperly caused the arrest and detention of the Plaintiff.’

Other allegations in the statement of claim were interpreted by the Court of Appeal as amounting to an action for procuring the plaintiff’s arrest and imprisonment by instituting judicial process maliciously and without reasonable cause.

The claim was unanimously struck out by the Court of Appeal on the ground that it was based on the evidence which had been given by the defendant at the criminal trial, and that, since there was an absolute immunity from suit in respect of the evidence of a witness on the ground of public policy, the action must fail. In so far as the action was based upon the instructions given by the defendant to counsel to apply for a bench warrant, it was struck out because the decisive factor was not the instructions to counsel but the defendant’s evidence and that the immunity of a witness was not capable of being outflanked by such a means. But the plaintiff also argued the case in negligence. This was rejected by Lord Denning MR in these terms ([1969] 3 All ER 1153 at 1155, [1970] 1 QB 283 at 288):

‘Next counsel for the plaintiff sought to say that an action would lie in negligence on the ground that there was a duty owed by the defendant to the plaintiff to take proper care before he made an application for a warrant. I do not go into the bounds of the duty of care, because the claim in negligence too must fail for the same reasons. No matter how an action is framed, it cannot be used as a way of getting round the high principle that a witness is not liable to a civil suit for words which he says in the witness box.’

Winn LJ described the claim in negligence as ‘impossible to sustain’, but he did not otherwise comment upon it (see [1969] 3 All ER 1153 at 1155, [1970] 1 QB 283 at 288).

Mr Bennett relied upon the passage from the judgment of Lord Denning MR for his proposition that there is no action for a negligent breach of process. It is to be noted that the Court of Appeal refused leave to appeal to the House of Lords but the Appeal Committee gave leave on terms that the pleading should be amended in order to disclose an action for malicious arrest. The House of Lords allowed the plaintiff’s appeal on the amended claim on the grounds that the plaintiff was not suing on the basis of the defendant’s evidence at the trial. The defendant’s evidence was but one step in the procuring of the plaintiff’s arrest by an abuse of the process of the court. The issue of negligence was not argued before the House of Lords and it is therefore submitted by Mr Bennett that the judgment on that issue in the Court of Appeal stands and that I am bound by it.

But the Court of Appeal rejected the claim in negligence on the ground that, however the cause of action may be framed, it could not be allowed to infringe the rule of public policy which protects evidence given by a witness. It seems to me that the Court of Appeal was considering a cause of action in negligence in relation to that principle alone. It was not considering whether an action in respect of acts or omissions which precede a court process can be framed in negligence, which is the issue I have to decide. Nevertheless, in deciding that issue, I must take into account the history of the causes of action which relate to court proceedings and related matters. They are malicious prosecution, abuse of process and misfeasance in a public office. Malice is an essential element in these torts. There is no reported case in which a negligent abuse of process has been recognised.

I think it appropriate here to consider the proposition agreed between the parties as containing the test by which to decide whether a duty of care exists. First, Mr Bennett accepted that it was reasonably foreseeable by the second defendant that the plaintiff would suffer loss if the magistrates’ court were not informed that the offences had been taken into consideration but he qualified this concession by submitting that the plaintiff was represented by solicitors and that the second defendant would therefore contemplate that the plaintiff’s solicitors would inform the court. In my view that is an argument based on causation, that is that the effective cause of the damage was the failure of the plaintiff’s solicitors to inform the court. Causation is not an argument available at this stage. Then Mr Bennett submitted that the parties were not proximate. He contended that they could not be neighbours bearing in mind that they were antagonists in adversarial litigation. Counsel relied on the decision of Scott J in Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229 and Al-Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833, [1988] QB 665. In the latter case Lord Donaldson MR said ([1988] 1 All ER 833 at 835-836, [1988] QB 665 at 672):

‘A solicitor acting for a party who is engaged in “hostile” litigation owes a duty to his client and to the court, but he does not normally owe any duty to his client’s opponent (see Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229). This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation (see Myers v Elman [1939] 4 All ER 484, [1940] AC 282). That said, it should be emphasised that in the present case there is no allegation and no suspicion of any misconduct on the part of the defendant solicitors.’

Both of these cases were concerned with civil litigation. I think that it is highly arguable that the Crown Prosecution Service, responsible for the preparation and presentation of criminal charges of many types and of varying gravity is not in the same position as a solicitor acting at arm’s length in adversarial civil litigation. The traditions which govern the attitude of a prosecutor in criminal cases in this country suggest otherwise. The Code for Prosecutors issued under the powers conferred by s 10 of the 1985 Act stating, for example in para 8, the factors to be taken into consideration when deciding whether to prosecute in cases where a conviction might otherwise be secured is another example which emphasises the difference. There are many other instances: for example, the duty to make available to the defence witnesses who can give material evidence and whom the prosecution do not intend to call and also the obligation to inform the defence of any previous convictions of a prosecution witness. All these practices are alien to civil litigation.

Apart from Mr Goff’s other submissions on proximity, the question of proximity is raised by the plaintiff as arising from fact (vii), that is that the ‘solicitor for Ormskirk’ approved of the offences being taken into consideration and, by reasonable inference, he agreed to note the file. The plaintiff relies in this context on Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 at 250, [1990] 2 QB 283 at 289, where Lloyd LJ said:

‘The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility.’

In my view the solicitor for Ormskirk assumed responsibility towards the plaintiff on the basis of fact (vii) or at least it is highly arguable that he did. Moreover, the assumed facts show that the plaintiff was relying on that responsibility. He did not expect to have to answer to his bail. Mr Bennett contended that the plaintiff had not pleaded the case on this basis, but that is a difficult argument for the second defendant bearing in mind that the plaintiff’s case on this aspect of the facts arises out of matters in para 4 of the amended defence of the first defendant conceded by Mr Bennett to be true.

Next, in my view it is fair, just and reasonable to hold that a duty of care exists on the assumed facts of this case. Mr Bennett submitted that it would be wrong to look at this aspect of the question of duty within the narrow confines of this case. There may be cases, he contended, in which there are a very large number of offences taken into consideration and the burden on the second defendant would be such that it would not be fair or just or reasonable to cast a duty. I do not agree.

Finally, is there any ground of public policy for excluding a duty? To hold that a duty exists does not impugn the decision of the magistrates’ court. It does not infringe any of the immunities which arise from the conduct of cases or from the evidence of witnesses. In Business Computers International Ltd v Registrar of Companies [1987] 3 All ER 465, [1988] Ch 229 Scott J, in rejecting the existence of a duty of care in the circumstances of that case, was influenced by the existence of safeguards against impropriety which are to be found in the rules and procedure that controlled the litigation. There are none such on the facts of the present case. I can find no reason for excluding a duty on the grounds of public policy.

It follows that in my view, by every one of the agreed tokens by which to test the existence of a duty, a duty is found to exist. Mr Bennett has not produced an authority which unambiguously states that proof of malice is an integral part in an action which touches on a judicial process. No authority has been produced to show that a duty of care cannot exist at stages anterior to litigation or resumed litigation. In these circumstances, subject to one or two other arguments raised by Mr Bennett, I would decline to strike out this action.

In the first of these arguments, Mr Bennett submitted that the plaintiff’s claim is flawed since it is based upon the misconception that, because the judge took the two offences into account, it must follow that they ceased to exist. It is said that the offences did not cease to exist and that the plaintiff is still accountable for them. Counsel referred to R v Batchelor (1952) 36 Cr App R 64 at 67-68, in which Lord Goddard CJ, delivering the judgment of the court, considered the effect of taking offences into consideration. He said:

‘Everyone knows now — at least, I hope they do — what is the effect of taking offences into account. It is a convention; it is not statutory. I have often thought it would have been a good thing if the matter had been dealt with by statute in the Criminal Justice Act, 1948, but it was not. It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment. But, technically, taking offences into account does not amount to a conviction. That was decided in this court not very long ago where a man had been charged with an offence and found Guilty by a jury and then had asked for another offence to be taken into consideration, which was done. Then he appealed against the conviction for what I may call the main offence and this court set aside the conviction. Then the man was rearrested and charged with the offence which had been taken into consideration. In one case (McMINN ((1945) 30 Cr App R 138)) a judge on circuit had held that the taking into consideration of an offence amounted to a conviction on which a plea of autrefois convict could be based. But an appeal to this court in another case (NICHOLSON ((1948) 32 Cr App R 98 at 127)) showed that that decision was wrong, and that the prisoner had never been convicted of the offence taken into consideration, and it was right that he should be tried for it, because, although the sentence for the original offence for which he had been tried was probably longer than it would have been had the offence not been taken into consideration, as that conviction was quashed, he had never been punished or tried for the offence which had been taken into consideration. Therefore, we said that it was quite proper to try him for the second offence which had been taken into consideration but had not been the subject of a charge.’

In this case, it is difficult to envisage circumstances in which the offences which were taken into consideration could be revived, bearing in mind that the plaintiff pleaded guilty to the matters for which he appeared before the Crown Court at Liverpool on 7 August (the main offence) and that since these matters could not be revived neither could the offences which were taken into consideration. But I must accept what the court said in R v Batchelor (1982) 36 Cr App R 64, whatever may be the reality in this particular case. Mr Bennett argued, on the basis of R v Batchelor, that, since the plaintiff could still be convicted of the offences taken into consideration, the negligent failure to transmit the information to the Ormskirk court is irrelevant. In my view, that is not an argument which goes to the question whether a duty was owed; it might go to the question whether the alleged negligence caused the plaintiff damage. But causation is not a matter for decision at this stage.

A further argument raised by Mr Bennett was that the Crown Prosecution Service is a single persona and that, on any view of the facts, it was seised of the two matters which were taken into consideration. It was therefore argued, as I understood it, that the Crown Prosecution Service was seised of the two matters and that the question of transmitting information from one branch of the service to another cannot arise. This argument overlooks the fact that the second defendant is responsible for the negligent acts and omissions of its servants.

I can only strike out an action under RSC Ord 18, r 19 in a plain and obvious case. The power conferred by the rule can only be exercised where the case is clear beyond doubt: see the authorities cited in The Supreme Court Practice 1991 Vol 1, para 18/19/3 and see also the judgment of Balcombe LJ in Clarke v Bruce Lance & Co (a firm) [1988] 1 All ER 364 at 366, [1988] 1 WLR 881 at 884, to which I was specifically referred. This is far from being a plain and obvious case. In my judgment the appeal must be allowed.

DISPOSITION:
Appeal allowed.

SOLICITORS:
Canter Levin & Berg, Liverpool; Treasury Solicitor.