B2\2001\1199
Neutral Citation Number: [2001] EWCA Civ 1211
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE HARRISON)
Royal Courts of Justice
Strand
London WC2

Wednesday, 18th July 2001
B e f o r e:

LORD JUSTICE PILL

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THE CHIEF CONSTABLE OF ESSEX POLICE
Applicant

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RAYMOND COOK
Respondent

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MR. A. WARNOCH (instructed by Messrs. Barlow Lyde & Gilbert, London EC3A 7NJ) appeared on behalf of the Applicant.

MR. C. AGTHORP (instructed by Messrs. Martin Murray & Associates, Slough) appeared on behalf of the Respondent.

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J U D G M E N T
Wednesday, 18th July 2001
1.	LORD JUSTICE PILL: This is an application made on behalf of the Chief Constable of Essex Police for permission to appeal against a judgment of Harrison J., given on 17th May 2001. The learned judge dismissed an appeal from a judgment of the circuit judge, his Honour Judge Critchlow, given on 5th January 2001. 
2.	The application before Judge Critchlow was an application to set aside a default judgment obtained against the Chief Constable on 22nd November 2000. It had been obtained by a Mr. Raymond Cook, the proposed respondent, who had made a claim for damages against the Chief Constable by reason of allegedly false information supplied by the applicant to a judge at the Old Bailey in circumstances which I shall briefly describe. 
3.	On 23rd October 1986, Mr. Cook was convicted of an offence of possession of a firearm and shortening the barrel of a shotgun. He was sentenced to terms of 15 months' imprisonment on each count, the sentences to run concurrently. On 15th March 1996, Cook was convicted at the Old Bailey of aggravated burglary. He was sentenced to a term of four and a half years' imprisonment. The sentencing judge Mr. Recorder Lawson Q.C. had been provided with a summary of Mr. Cook's previous convictions. The summary was inaccurate, in that it recorded that in 1986 Cook had broken into his estranged wife's home, armed with a shotgun the barrel of which had been shortened. The information before the recorder is at page 115 of the bundle. The recorder took that information into account when imposing a sentence of four and a half years' imprisonment. 
4.	In July 1997, Cook applied to the Criminal Cases Review Commission for a referral of his case to the Court of Appeal. The Court of Appeal (Criminal Division) allowed the appeal against sentence and substituted a sentence of three years and 11 months' imprisonment because of the inaccurate summary which had been placed before Mr. Recorder Lawson when he sentenced Cook to a term of four and a half years' imprisonment. Cook had been remanded in custody for some time before his conviction, and the result of the allowing of the appeal was that Cook had served three months and 14 days in prison which he would not otherwise have served. 
5.	The case against the applicant is that it was the Essex Police Force which prepared the inaccurate factual summary which was before Mr. Recorder Lawson. The defence case is that the inaccuracy was not the responsibility of the Essex Police. The applicant is unable to say whose fault it was, but it was not that of the Essex Police Force. That issue has been debated, first before the circuit judge and then before Harrison J., counsel appearing for both parties at each of the hearings. 
6.	For the applicant, Mr. Warnoch submits that Harrison J. has applied the wrong test in reaching the decision he did. Reference is made to page 6 of the transcript of his judgment, where the learned judge stated: 
“It is, of course, for the defendant to show that it has a real prospect of successfully defending the claim. It seems to me to be moderately clear that on the balance of probabilities there were likely to be further documents that had been sent by the defendant to Scotland Yard other than the three which had been produced for the purposes of this case.” 
7.	Harrison J. referred, as had Judge Critchlow, to CPR rule 13.3(1):
“In any other case [which is this case] the court may set aside or vary a judgment entered under part 12 if -
(a) the defendant has a real prospect of successfully defending the claim, or 
(b) it appears to the court that there is some other good reason why - 
(i) the judgment should be set aside or varied, or 
(ii) the defendant should be allowed to defend the claim.” 
8.	It is common ground that the question to be considered is first whether the applicant has a real prospect of successfully defending the claim. It is also submitted that there is a subsidiary submission that the interests of justice are a good reason for permitting the defence to be pursued in the circumstances of this particular case. 
9.	Mr. Warnoch submits that the judge's speculation about other documents was in the event misconceived. There is now evidence in the form of a statement from his instructing solicitor, who has conducted enquiries with the Essex Police Force, that the further forms D and E (of which the judge “speculated”, as Mr. Warnoch puts it, as to their relevance) were not in fact relevant because they would not be completed in the circumstances of this case. It was stated: 
“It will be seen that NIB74D express[ly] states on its face that it was not to be completed when forms 74A to C were being used, as was the situation in this case.” 
10.	It is further submitted that the judge conducted a mini‑trial on paper. It is submitted that he should not have speculated as he did and that he has done what this court in, for example, Swain v. Hillman, has stated that a judge, faced with an application such as this, should not do, and that is to conduct a trial upon the relevant application. 
11.	I cannot accept that the judge, in the passage I have cited, was setting out his eventual test. That is plainly stated at page 7, where, having considered the factors already mentioned – forms D and E, and other factors –the judge stated: 
“In those circumstances the judge [that is, the circuit judge] was, in my view, entitled to come to the conclusion that the defendant did not have a real prospect of successfully defending the claim”.
12.	The judge had regard, as well as to the possibility of further documents, to a letter written by Superintendent Gruneberg of the Essex Police, dated 30th December 1996. That includes information now conceded to be inaccurate, in that it told the proposed respondent, Mr. Cook, that he had been convicted of an offence of shortening the barrel of a shotgun with intent to commit an indictable offence. That conviction is alleged to come from “our records”, which provide that on 23rd October 1986, at the Chelmsford Crown Court, Cook was sentenced to 15 months' imprisonment concurrent for that offence. In truth, he had not been convicted of an offence “with intent to commit an indictable offence”.
13.	As to that inaccurate information supplied to Mr. Cook, the judge stated: 
“It also seems pretty clear to me as a matter of common sense that that reference to 'with intent to commit an indictable offence' in relation to those two offences is a reference back to the account given in 1986 of the claimant allegedly breaking in to his wife's house with a firearm, which is a matter not only referred to in the summary at page 59, but is also referred to in document 74A, which was a document which emanated from the Essex Police.” 
14.	The judge continued: 
“Putting those matters together [that is, the possibility of further documents and the existence of that letter] and bearing in mind that there is no other evidence that has been produced on behalf of the defendant relating to what is actually on the computer itself, and that, in effect, apart from those three documents there is no positive case put forward by the defendant, in my judgment the judge below was entitled to conclude that as a matter of logic and common sense on the balance of probabilities the incorrect information was likely to have come from documents submitted by the Essex Police to Scotland Yard, there being no evidence of any kind that that information had come from any other source.” 
15.	Having said that, the judge stated the general conclusion which I have already cited. 
16.	I should say that Mr. Warnoch, challenged on this point by Mr. Agthorpe (who appears, in circumstances about which I propose to hear more, for the proposed respondent) accepts that the further evidence as to forms D and E and their relevance (or, as Mr. Warnoch would put it, lack of relevance) would, if permission is granted, be and have to be the subject of an application to call fresh evidence. To that, I need only say that Mr. Warnoch says that it was only when the judge raised the point that the possible relevance of forms D and E emerged, so that the Force should not be criticised for having failed to put those documents before the court upon its application to set aside the judgment. 
17.	The judge also dealt with the question of causation. Mr. Warnoch has not pursued that orally, but I have regard to what he has said about it in his skeleton argument. 
18.	Another factor which has to be considered is that this is a second appeal within the meaning of CPR 52.13. That provides: 
“(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the county court or the High Court which was itself made on appeal. 
(2) The Court of Appeal will not give permission unless it considers that-- 
(a) the appeal would raise an important point of principle or practice; or 
(b) there is some other compelling reason for the Court of Appeal to hear it.” 
19.	Mr. Warnoch's submission is that, the judge's speculation as to forms D and E having been proved wrong, the compelling reason is the serious risk of a real injustice being done in this case. He accepts that finality is also a factor in the interests of justice, but not, he submits, at the expense of an obvious injustice which can be remedied without damage to anyone. 
20.	In my judgment, both the circuit judge and Harrison J. were justified in the conclusions they reached upon the evidence before them. It was for the applicant to show a real prospect of success. There is no doubt that the recorder at the Central Criminal Court was provided with inaccurate information. The information arose out of a prosecution at the Chelmsford Crown Court for which the Essex Police were responsible, and no doubt the initial records would have been kept by them. The submission is that, upon further investigation of these matters, it may be that on balance of probabilities the inaccurate information did not come from the Essex Police but through an error, computer or otherwise, in the central criminal records. 
21.	In my judgment, Harrison J. was right to place reliance upon the letter from Superintendent Gruneberg dated 30th December 1996. That appears to me to be a powerful pointer of the fact that the mistake originated with the Essex Police Force. Mr. Warnoch says that the reference to “our records” in a letter written in 1996 might be to records which had come from some other source. But in the present circumstances, it appears to me to be a strong pointer that the unfortunate error (and there is no question of bad faith here) was that of the Essex Police. 
22.	In the end, I have to consider the effect of CPR rule 52.13. This is an application to set aside a judgment properly entered and which, as Mr. Warnoch recognises, could not have been entered had proper steps been taken on behalf of the police. I make no judgment as to whether forms D and E ought to have been disclosed earlier. There is an interest in finality. The whole basis of CPR 52.13 is to ensure that appeal procedures are proportionate to the issues involved and that a litigant in the position of Mr. Cook should be able to obtain a final decision. 
23.	I have expressed the conclusion that both Judge Critchlow and Harrison J. were entitled to reach the decisions that they did. I have regard to the further matter which has emerged and which has been the central point of Mr. Warnoch's submissions to this court. I am, however, quite unpersuaded that there is, in the circumstances, a compelling reason for the Court of Appeal to hear a second appeal in this case. 
24.	In my judgment, the decision of Harrison J. should stand, and I do not consider it arguable that it could be set aside. Accordingly the application is refused.
ORDER: Application refused; no order for costs in favour of the proposed respondent.
(ORDER NOT PART OF APPROVED JUDGMENT)