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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mahon & Anor v Rahn & Ors [2000] EWCA Civ 185 (8 June 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/185.html Cite as: [2000] 1 WLR 2150, [2000] EWCA Civ 185, [2000] 4 All ER 41, [2000] 2 All ER (Comm) 1, [2000] EMLR 873, [2000] Po LR 210, [2000] WLR 2150 |
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Case No: QBENI 99/1131/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Eady)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 8th June 2000
PATRICK
MAHON |
Claimants/ | |
- and - |
||
DR
CHRISTIAN RAHN |
Appellants/ |
"10. Rahn & Bodmer comes to the following assumptions:
It is possible that Safeguard might have a claim against TC Coombs for not having paid Can$ 3 mio or 5 mio. (Can$ 2 mio have certainly not been paid, otherwise TC Coombs would have claimed interest on that amount from Rahn and Bodmer)
It is possible that Safeguard promised to pay Mr Kent Can$ 2 mio into the bank account with Rahn & Bodmer but now might have paid to a bank account of Mr Kent somewhere else
It is also possible that Mr Kent just assisted in a fraud of Mr Johnson by setting up the structure as mentioned in the above outlines.
11. Rahn & Bodmer would be interested in obtaining documents out of the files of TC Coombs with respect to the following issues:
that TC Coombs was aware of the circular character of the transactionwhatever evidence which might be useful to show that the transaction was illegal under British law or that the transaction was fictitious and whatever evidence may confirm the assumptions made under para 10 hereinbefore."
that TC Coombs was aware of the fact that Mr Kent promised to finance this circular transaction with Can$ 2 mio in order to enhance its standing with the local securities association
that Mr Kent owns TC Coombs or, at least, owned TC Coombs during the period August - November 1988
that TC Coombs never paid Safeguard the purchase of Can$ 3 mio, or Can$ 5 mio.
"As you know, Dr Paltzer has spoken to me about the matters of concern to your bank regarding the Coastline share transaction, in which Rahn & Bodmer and our member firm, T C Coombs & Co, were concerned in 1988. We, too, are troubled by aspects of this transaction and we would be greatly assisted by your own account, supported by any documentation in your possession which you could let us have, of exactly what happened between Rahn & Bodmer and T C Coombs & Co and persons acting on their behalf, so that we can fully investigate the matter, as we have a statutory duty to do as T C Coombs's regulator."
"I wonder if Dr Rahn, who I imagine has now completed his period of military service, may now have the time to respond to my earlier request. This would be extremely valuable for my on-going enquiries into the activities of T C Coombs & Co as well as individual members of that firm. You may have read in the press (I attach cuttings from this morning's and the weekend's papers) that the Serious Fraud Office has stepped up its investigations into the Coastline transaction. All assistance that you can give to us, T C Coombs' regulator, will be greatly appreciated."
"We are very pleased to see that the Serious Fraud Office has stepped up its investigations into the Coastline transaction. We are, however, concerned about the reports mentioning our client as having lodged a complaint. As you know, our client's assistance was and is subject to complete confidentiality. Please be kind enough to confirm that the TSA will be treating our client's co-operation in an entirely confidential manner. We will then, within the guide-lines of the Swiss bank secrecy law, proceed to assist you with your inquiries in the activities of T C Coombs & Co."
"I can also reassure you and your client that TSA's investigations and tribunal proceedings are completely confidential. The public and the press are excluded from our tribunals and the names of complainants and witnesses are never publicly disclosed. Any information you or your client are able to let us have will be treated in the strictest confidence. Obviously, if we need to make use, in proceedings before our tribunals, of a witness statement made by your client, a copy of that statement would have to be disclosed to the other party in the proceedings, whether it be Mr Kent or T C Coombs & Co. I can assure you that we would not make use of such a statement in proceedings without your prior permission.
It would be possible for us to make use in our proceedings of documents provided to us by third parties, such as your clients, without the need to disclose the source from which we received such documents. Such documents, in themselves, could be very helpful to us in our proceedings. Our adjourned case in relation to Mr Kent will be heard in the fortnight commencing January 8th 1991. I should be delighted if you could send me any information and documentation which could be of help in these proceedings or in relation to our inquiries into T C Coombs & Co as soon as possible."
"I have taken note and appreciate your assurance of complete confidentiality with respect to the above matter and the involvement of our client.
I understand that the hearing in your case is set for January 8 1991. Although we have a substantial amount of year-end work, we will try to accommodate you with useful information and documentation as soon as possible."
"We discussed the fact that any statement of Dr Rahn made was confidential but would in due course be served on the defendants to any prosecution and that there was the possibility of it being leaked but it was felt that there was no great purpose in so doing. Mr Lee said that Dr Rahn's evidence was presently fundamental but they considered that with further investigation there was a high likelihood of further charges being laid against Mr Kent and Mr Mahon. The copy of the charge was handed over and Miss Garlick indicated that the further charges might well involve other matters than capital adequacy."
(1) The Schedule of Charges against Mr Mahon;
"[He], one has to remember, had no direct personal involvement in or knowledge of the events at that meeting of 4th August but relies upon the inferences which he chooses to draw from his `so called investigation'. I say `so called investigation' because one notes no statements of any witnesses were taken, no records or diary entries were kept, no records of the [provenance] of documents and his mind conditioned, no doubt, by the realisation of a possible civil action. One cannot help noting that he was insistent that Kaiser was essentially an honest man. For Dr Rahn to say otherwise would torpedo the bank's chances in any civil action since Kaiser was acting for the bank in that year, representing them."
"Count 3, before the jury could start to convict on this count they [would] have to feel sure that the agreement reached on 4th August in Zurich was not a straight $5m deal and the only persons present at those negotiations seemed to have been Kent, Johnson, Main, Kaiser, Dunki, for part -- the offer to purchase and the contract note referred to the $5m deal. The suggestion that there was a split deal and there were at the time three different persons there only starts to emerge after Mahon makes a demand for the balance of $2m. It is noticeable that there is no contemporaneous documentary evidence anywhere showing us a split deal; that may have arisen later. If this was a split deal it seems very unbelievable that in a Swiss bank, and a deal of this magnitude, it would not be properly documented and signed, at least for the bank's own satisfaction. One notes that all of the evidence of a split deal was made from the purported recollections of witnesses, recollections made after Main's note was issued.
The evaluation of witness reliability as witnesses of truth is essentially a matter for the jury, but having regard to the complete absence of Kaiser from the witness-box, and seemingly he could have been made available, Dr Rahn's evidence, which seems to be sheer speculation on his part after his unrecorded investigations, Main's somewhat unattractive role in supplying the first alternative version of 4th August deal -- which seems to then become the guideline for other Rahn and Bodmer witnesses, Brooke's dubious attendance note of the subsequent meeting of 28th October and the other matters, like Dunki's sudden recollection of what the deal was all about, which only came to him when he was in the witness-box here; these are such, that acting on the authority of that second limb of the case R v Galbraith I am driven to the conclusion, taking the prosecution evidence as its highest, that no sensible jury, however properly directed, could possibly come to a conclusion that they were sure that this was other than a straight $5m deal, although they subsequently varied the terms of payment. I, therefore, propose to stop the case on that count. So, that is Count 3."
"As to the third alleged misrepresentation that there had been an approach by Rahn and Bodmer of $1.60 per share, one notes that the contract note from the bank and the fax show that this was a $5m deal and no documentary evidence controverts it with any conclusiveness."
"Having said [this,] there are two observations I would like to make; first of all, my decision represents no criticism whatsoever of the Serious Fraud Office, any prosecutor can only act and take action on the material which is supplied to him in the shape of witnesses and documents. He can investigate that and on the face of it if appears valid he makes his decision. But, I cannot help feeling if the Serious Fraud Office knew as much then as they do now it may well be that they would to have launched this prosecution in the first place, so much of the real nitty gritty of what was going on only came out from the witness-box as a result of cross-examination of those witnesses.
The second thing I would like to say is purely a personal view, I cannot help thinking that this sort of enquiry in a case where there has been no financial loss to any individual would be far better left to the regulatory jurisdiction of the appropriate bodies rather than a full blown criminal trial which takes up the time of the jury, the regulatory bodies have powers to conduct proper enquiries and they have sanctions which they can impose which in this sort of situation I would have thought would have [been] far more appropriate than a criminal trial, but that, as I say, is only a personal view of the matter."
(1) selling it or causing it to hold as a valuable security virtually worthless securities whose price had been artificially inflated by means of a complicated fraud;
(1) Mr Kent was always aware of the true nature of the transactions pleaded, and of the fact that the Coastline shares were valueless and the C$2 million debt a sham;
(d) In October 1987 the bank bought 310,000 shares in Coastline in five parcels at prices up to C$2.75 per share;
(m) On 11th August 1988 Mr Main, acting as a director of another Johnson company called Meridien, wrote to the bank in these terms:
"As you are aware [Meridien] is raising approximately A$16 million in a one for one rights issue ...(n) On 12th August 1988 the bank wrote to Arthur Andersen and Company:
I confirm the placing of 3.125m shares of [Coastline] from TCC for C$5m with settlement in 90 days. As Meridien intends to place the shares over the 90 days with other companies we would wish you not to disclose the name of your client ...
... we authorise you to disclose to Arthur Andersen and Company that you are acting for a client that has the ability to pay and is in no way connected or associated with [TCC]."
"We are acting on behalf of undisclosed clients. The transaction is not subject to put or call option and is in no way connected or associated with TCC."(o) On 18th August 1988 the bank confirmed to TCC (in a letter required for TCC's auditors and/or TSA) that:
"... we understand and agree with the terms of the transaction as expressed in the [TCC] contract note which requires unconditional full settlement of 3,120,000 [Coastline shares] by Rahn and Bodmer on or before 4th November for the sum of [C$5 million].(p) In response to an enquiry from TSA dated 26th September 1988 as to the grounds for the statement that the bank's clients were "in no way connected with TCC" the bank replied on 31st October 1988 to the effect that it had asked the clients.
Additionally, the transaction has no repurchase arrangement or other linked transaction or put or call option involving [TCC], its shareholders, directors or employees."
(i) The bank was acting on the instructions of Mr Main and Mr Johnson on behalf of its clients, namely Meridien and/or the Johnson companies or nominees for them to which the shares in Coastline were subsequently booked.
(i) On 16th November 1988 the C$3 million paid by the bank was credited to TCC's account at a bank called CIBC;
(iii) Oxnard paid TCC C$2 million in consideration of a promise that the debt would be assigned to Oxnard;
(i) On 22nd July 1987 TCC issued a contract note purporting to evidence a sale by TCC to the bank of 5 million shares in a company called Epoch for A$4 million.
(i) On 29th July 1987 TCC issued a contract note purporting to evidence a sale by TCC to the bank of 1 million shares in a company called Kulim for approximately A$6 million.
(i) On 19th June 1987 it was agreed in a telephone conversation between Mr Kaiser and Mr Kent (on behalf of TCC) that the bank should buy from Safeguard through TCC 50,000 shares in a company called Bulong at A$1.80 each and that this was to be a "back to back" transaction. Both Safeguard and Bulong were Johnson companies.
(i) On 30th June 1987, in a telephone conversation between Mr Johnson and Mr Bodmer (on behalf of the bank) it was agreed to enter into the following series of transactions.
"Applying that test of centrality, I do not regard these proposed amendments as permissible. Prior to the new dispensation I would have asked the (virtually identical) question whether these transactions could be said to form part of the `essential' issues rather than being merely `peripheral': see Rechem International v Express Newspapers [1992] TLR 302 per Neill LJ. I would have come to the same conclusion.
Mr Moloney really put his argument on the basis that these earlier dealings, in connection with Mr Johnson's affairs, might be of value to his clients at the trial in helping to refute any suggestion to the effect that the characteristics of the 1988 transaction were such that they should have been put on enquiry. I could envisage circumstances in which questions were being asked in cross-examination, and there was a challenge to credit, such that it might be relevant to refer to a past pattern of dealing. It is not for me to rule in advance, or hypothetically, so as to try to bind the hands of the trial judge on issues of relevance or admissibility should such circumstances arise in fact. This is one of the areas in which the parties may well be able to agree in advance of the trial some facts, expressed in general terms, so that there would be no need for a detailed examination of other transactions. That is certainly to be encouraged. What is, however, clear for present purposes is that these draft sub-paragraphs have no place in the particulars of justification.
Accordingly, I disallow the amendments."
(1) Were the words complained of published on an occasion which attracted absolute privilege?
"The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party's witness statements, will make the details of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules. The Practice Direction to r 16 para 9.3 (Practice Direction - Statements of Case CPR Pt 16) requires, in defamation proceedings, the facts on which a defendant relies to be given. No more than a concise statement of those facts is required."
"SFA does consider that, at the least, information properly relating to firms and individuals which it regulates enjoys a qualified privilege. As you are aware, SFA considers that it has a duty under statute to investigate alleged wrong-doing on the part of any firm which it regulates or which is applying for authorisation (as did TSA). Allegations of wrong-doing and information to support those allegations are therefore matters of legitimate interest to SFA. However, given that SFA's interest must be in receiving material which is known, or is at least honestly believed, by the informant to be true, SFA does not see any additional benefit in seeking to argue the absolute immunity point when the defence of qualified privilege should, in SFA's view, be available to its informants."
"(c) But, I believe the SFA has ignored the potential informant's viewpoint. Speaking for the bank, as one such informant, I can testify with force that I would not have given in to the multiple requests of TSA in 1990 for information, had I known that the Defendants would risk being harassed by litigation, whatever the interests of the regulator and the wider public in the free flow of information to the regulator may be.
(d) Our case is a very clear illustration. We were told by the SFO at the outset and throughout 1990 of allegations of massive fraud involving millions of dollars resulting from stock exchange manipulations, of TSA's own investigation into the capital inadequacy of TCC and an impending hearing regarding the Second Claimant. I myself had to make extra time available to finish drafting the letter before the Christmas holiday so as to accommodate TSA. In the first paragraph of the letter I went into exact language in order to make it clear that the bank did not warrant its accuracy or completeness and that it was solely meant to be `helpful in your proceedings'.
(e) We would never have laid any information before TSA if we had thought that it might expose us to litigation, particularly a case of this nature. The idea that there was a material distinction for this purpose between TSA and the SFO (which introduced us to TSA, and with which the SFO was fully co-operating) at that time did not cross our minds. I very much doubt whether, if this case goes to trial, anyone (including, as in this case, an institution such as a Swiss bank) would voluntarily help a British regulator, despite the evident desire of such co-operation in the modern commercial world, as illustrated by TSA's own requests in 1990."
"The authorities establish beyond all question this ... that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the course of any proceedings before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed."
"The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions."
(1) under what authority the tribunal acts;
"1. (1) The rules and practices of the organisation must be such as to secure that its members are fit and proper persons to carry on investment business of the kind with which the organisation is concerned.
....
2. The rules and practices of the organisation relating to -(a) the admission and expulsion of members; and
(b) the discipline it exercises over its members,
must be fair and reasonable and include adequate provision for appeals."
(1) The tribunal acted under the authority of the rules of a body which could not have obtained recognition as a SRO from the Secretary of State under the Financial Services Act unless it had satisfied him that its rules and practices (which had to include adequate provision for appeals) complied with the requirements set out in paragraphs 1 and 2 of the Act. Once recognised, a SRO performs the important functions of a public nature described in Part I of the Act in relation to the authorisation of people entitled to carry on investment business in this country.
"For the purposes of the Tribunal hearing neither party shall at any time be entitled as against the other to disclosure of any documents save as set out above."
"The Preliminary Hearings Officer shall give such instructions as may be appropriate for the just and expeditious determination of the application. In particular, the Preliminary Hearings Officer may give such instructions and such permissions as are necessary relating to disclosure of documents, notices to admit facts, representation and attendance of witnesses, and may in any particular case give instructions departing from these Rules." (Emphasis added).
"I appreciate that the Bench of the Inner Temple (and I dare say those of the other Inns) conducts its proceedings with less formality than in a court of law. There are no pleadings or discovery; witnesses cannot be subpoenaed and do not give evidence on oath. These are factors to be taken into account, but I think that in any case of doubt the overriding factor is whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern, for it is public policy that justifies absolute privilege."
"I do not think that the absence of a statutory foundation or of some of these features such as the taking of evidence on oath need be fatal to the recognition of a tribunal as a judicial body to which it is necessary in the interests of a proper and complete hearing to attach the protection of absolute privilege. It seems to me that in the case of proceedings which may result in the deprivation of a barrister of the right to practise his profession, it is desirable that a judicial determination of the matters by the Benchers of his Inn should be as free from harassing consequences as that of a military court of inquiry or the proceedings before the Disciplinary Committee of the Law Society."
"I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused, the balance of public advantage lies in generally respecting it."
"...I am of the view that there is no compelling reason for the implied undertaking on the ground that its absence will deter informants from coming forward. The honest have nothing to fear. The anonymity of those in peril can be protected. It is in the interests of justice that the dishonest should be deterred from disseminating calumny and perverting the course of justice. Thus, in practice, there is only a small risk to informants and it is hardly a floodgates situation. Moreover as a matter of public policy a person who is the victim of malicious false statements to regulatory bodies who wish `to put the record straight' should not be met by blanket protection of the kind advocated by the defendants. Qualified privilege is sufficient protection, leaving the victim plaintiff to prove malice."
" I have not found the reasoning in [Mahon v Rahn] persuasive. In the first place, I cannot accept the proposition that persons who take part in the administration of justice are sufficiently protected by qualified privilege. This would be contrary to a long line of authority. It is the policy of the law to protect such persons against baseless allegations of malice, and this requires nothing less than absolute immunity from suit. In the second place, a very narrow view was taken of the scope of privacy, and no regard seems to have been paid to the fact that it is the privacy of the individual witness or investigator, not the prosecution, which is invaded when his material is supplied to the accused ..."
"In my opinion it is necessary here, as in many matters affecting the criminal law, to balance the public interest in the administration of justice against the interests of the individual. The history of the evolution of the disclosure rules shows that the balance has swung a long way towards the interests of the individual who is being prosecuted. This is in recognition of the fact that the defendant in criminal proceedings has the right to insist on a fair trial. Fairness to the defendant demands the widest possible disclosure. In practice, to avoid the risk of unfairness and because the prosecutor does not have the time or the resources to edit out every item which need not be disclosed, disclosure under the modern rules tends to provide the defence with more material than is strictly necessary.
But the administration of justice is not all about fairness to the defendant. It is also about the interests of those individuals who may be affected by dissemination of the material. There is a public interest also, in the detection and punishment of crime. If that interest is put at risk because of the consequences of the disclosure rules, the balance between the public interest and the interests of the individual is disturbed. It needs to be adjusted in favour of the public interest. This cannot be done by reducing the scope of the disclosure rules. That would prejudice the right of the defendant to a fair trial, which is always paramount. What can be done is to increase the protection to those who may be affected by the disclosure rules against the collateral use of such material - that is to say, against its use for purposes other than to ensure that the defendant has a fair trial."
"In this case, whilst the immunity may on occasions benefit a malicious investigator or informant, I consider that the balance of public advantage lies in allowing it to the defendants."
"The protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated."
(1) that it had agreed to buy the Coastline shares on 4th August 1988 from TCC for C$5 million, acting as agents for four named parties;
"Q But this case is the Rahn and Bodmer show is it not, Mrs Garlick? Instituted by Rahn by a complaint in 1990 that they had been defrauded?
A To that extent I suppose you could call it the Rahn and Bodmer show."
(1) On 29th August 1990 Mr Dickson of the SFO provided the defendants with new information about TCC, based on his own investigations, and put forward a new and apparently superior explanation of the Coastline transaction which Dr Paltzer was later to adopt in the TSA letter.
"... to make those strong comments underlines how inappropriate it would now be for me to hold that there is truly nothing in the claimants' current contentions about the manipulative role they say the defendants played in 1990 and 1991. It might have been the case, perhaps, in the years following Judge Clark's remarks, that a new angle on the evidence emerged, so as to reveal that he had misunderstood the true position and that his comments were thus no longer valid. As I have observed, however, no such fresh light has been shed; or at least none sufficient for me now to conclude with certainty that those comments can be set aside as of no further relevance."
Mr Mahon (10.5.89; 6.9.90)
"Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant."
"...[In] the light of the defendant's further untruthful accusations about the plaintiff made to Police Constable McKiernan on 7 August and to another officer about an alleged incident on 9 August, when nothing seemed to be happening about executing the warrant, as well as her other wholly unfounded accusations to the police about earlier alleged incidents and her evidence generally, I consider that she was clearly determined that action should be taken and I am prepared to infer that that must have made such an impression on Detective Constable Haynes as to result in him applying for the warrant, notwithstanding the fact that the case depended on her word alone: and of course, as I have said, she was quite willing to give evidence and to accompany Detective Constable Haynes to the magistrates' court on 27 July to assist him in obtaining the warrant.
In the circumstances of this particular case, therefore, I find that the defendant was indeed actively instrumental in setting the law in motion against the plaintiff. To hold otherwise would, I consider, be an affront to a proper sense of justice. She wanted the plaintiff to be arrested and dealt with from the start, and that is what she achieved in causing Detective Constable Haynes to obtain the warrant from the magistrate. She was, as I say, the only person who could testify about the alleged indecent exposure. I therefore find that the defendant is to be regarded as a prosecutor in setting the law in motion against the plaintiff."
"It is said that victims of sexual assaults would be particularly discouraged from complaining. This, however, could not be so where the alleged perpetrator was a stranger to the complainant, and where the parties are known to each other a prosecution is unlikely to follow unless there is some evidence other than that of the complainant herself." (Emphasis added)
"To deny a person whose liberty has been interfered with any opportunity of showing that it was ill-founded and malicious does not in the least correspond with, and is a far more serious denial than, the traditional denial of the right to attack a witness to an issue which has been tested and passed upon after a trial. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely what the solicitor said in court."
"Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice."
"...[If] he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him. The question in all cases of this kind must be - Who was the prosecutor? And the answer must depend upon the whole circumstances of the case."
"This rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings."
"The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution."
"As a general rule a prosecution will be considered to be brought when the information is laid and by the person who lays it. In the result, in prosecutions under the Crimes Act 1961, as was Mr Lamont's, the police will generally be treated as the prosecutor and no action for malicious prosecution will lie against the person on whose information the police have acted. But in some cases the person who supplied the information to the police may be regarded as the prosecutor even though the information was not laid by him. A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute. The matter was put in the following way by Isaacs ACJ in Davis v Gell [(1924) 35 CLR 275] at p 282:
`For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.'"
"When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable under the rule stated in this section even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer's discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings. If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false."
(1) Did A desire and intend that B should be prosecuted?
LORD JUSTICE MANTELL:
LORD JUSTICE LAWS: