- THE MASTER: This is my judgment in relation to the defendant's application made by application notice of 2 June 2023 to strike out or obtain reverse summary judgment in relation to the claimant's claim. The application to strike out is effectively made under Civil Procedure Rule 3.4(2):
"The court may strike out a statement of case if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order."
and the defendant contends primarily that the claimant's statement of case that has not disclosed reasonable grounds for bringing the claim.
- It is accepted by Mr Sheldon KC -- who appears with Mr Boyle of counsel for the defendant on these applications -- that the court assumes for those purposes that the facts stated in the claimant's statement of case will be proved.
- The defendant's alternative application is for a reverse summary judgment under Civil Procedure Rule 24.3:
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if:
(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
- I will return to the summary judgment principles in due course, but the defendant's case is that the claimant has no real prospect of succeeding on the claim and that there is no other compelling reason why the case or issue should be disposed of at a trial. This summary judgment application is effectively based on grounds of law as to how the case is advanced by the claimant, rather than on the basis of advancing particular evidence as to why the claimant is bound to fail in relation to allegations of pleaded fact.
- The matter arises as follows. The claimant comes from Libya and has family in Libya. He came to live in this country by at least 2006. He asserts that in July 2006, during a meeting in Tripoli between the British Security Services and the then Libyan Security Apparatus, the British Security Services provided the Libyans with a list of names including his name, and that that list identified him (and falsely identified him) as being involved in terrorist activities.
- He justifies this assertion by reference to a document -- originally in Arabic but which has been translated -- which he says he obtained subsequently following the overthrow of the then Libyan regime - which is said to be an actual a record of that particular meeting. The defendant's position, as is common in cases involving or allegedly involving the security services, is neither to confirm nor to deny those particular matters of asserted fact.
- The claimant goes on to assert that the consequence of the meeting and the provision of the list was that the then Libyan Security Services targeted the claimant's family and possessions in Libya. Specifically, in August 2006 by arresting, assaulting and humiliating two of his brothers at the family home in Libya; and in 2007 by causing a friend of his to be abducted by the Egyptian Security Services and made subject to mistreatment; and also, on the occasion where the brothers were arrested in 2006, by seizing and effectively stealing from the family home, valuable property, including gold and cash, owned by the claimant.
- The claimant contends that he only discovered what had actually happened in full in December 2019 with the result that he suffered, "Further severe psychiatric injury including major depressive disorder and generalised anxiety disorder." He has produced a medical report from a psychiatrist, Dr Saima Latif, dated 19 May 2024 which supports his contention that he has sustained psychiatric injury.
- The claimant asserts that these facts give rise to a number of wrongs on the part of, and therefore to his having rights to claim against, the British Government. He has brought this claim against the Attorney General, who for these purposes effectively stands in the position of security services. He did so by a claim form which was actually issued on 9 January 2023, although, the claimant says, and has produced evidence to the effect, that he submitted it to the court for issue in November 2022.
- That claim form was supported by particulars of claim which asserted that as a result of fault on the part of the security services, he had been caused actionable loss. The defendant responded with the application to strike out and for reserve summary judgment.
- The matter came first before me on 25 July 2024 with the claimant, as he has done before me today, being a litigant in person representing himself (although it would seem from some of the documents that he has in the past had some assistance from others in the formulation of his case).
- Owing to lack of time and the complexity of the matter and also my concerns as to achieving their unjust outcome and process, I did not complete the matter at that hearing but adjourned it, effectively to today.
- At the hearing in July 2024, it became clear that the claimant was potentially putting this case on a number of different legal bases which were each challenged by the defendant.
- Firstly, the claimant was putting his case on the basis of actionable negligence asserting that the defendant owed him a duty of care and breached it, and that such breach caused him both psychiatric loss and loss of property.
- Mr Sheldon met this in two ways. First, in relation to the claim for psychiatric loss suffered by reason of negligence, he submitted that such a claim was not possible in law because the claimant did not satisfy the requirements to be a secondary victim who could claim for psychiatric loss.
- Second, in relation to the claim, again in negligence, for loss of property which had been effectively stolen by the Libyan authorities, Mr Sheldon's contended, firstly, that no such claim could be bought in law since the loss was, as Mr Sheldon categorised it, an economic loss, rather than damage to a person or property. Mr Sheldon also contended, secondly, that on the assumption that the claim for psychiatric loss would be struck out, the claim, being left to be in relation to the stolen property alone, would be limitation barred. In relation to this second point, Mr Eblish raised arguments as to his having an extended or ongoing limitation period which was still current at the date of submission of the claim form to the court for issue on the bases that he had only discovered the relevant facts in 2019 and that he contended that relevant facts had been deliberately concealed by the security services.
- Mr Eblish's third claim was on the basis that the security services or their personnel, were liable for misfeasance in public office. Mr Sheldon responded essentially by both relying on limitation arguments and also contending that the particulars of claim did not properly (i) identify the relevant unlawfulness (ii) or set out the further mental states on the part of the security services personnel which would be required for a such claim in misfeasance or the facts from which such mental states could be inferred.
- Fourthly, Mr Eblish advanced the claim of his having been caused injury by unlawful means on the part of the defendant, which Mr Sheldon resisted on the basis that the particulars of claim did not set out the relevant elements of that tort, and where that tort would ordinarily be confined to injury being caused by a defendant having taken steps so as to restrict a third party in their freedom of action.
- Fifthly, Mr Eblish relied on the Humans Rights Act and various Human Rights Articles in the Human Rights Convention, to which Mr Sheldon responded in general that (i) there had not been set out what the factual basis of any human rights claim was and also, (ii) in any event an extension of time would be required for the bringing of such a human rights claim, in relation to which extension he contended that no direct proper grounds have been advanced for it to be granted.
- Finally, Mr Eblish raised arguments based on the law of trespass to person and trespass to goods. Mr Sheldon, responded that such claims could not exist in law on the pleaded facts and in any event, would require certain types of intentions to have existed within the minds of the security services' personnel, which intentions had not been pleaded in the particulars of claim, and where there was also an absence of any pleaded facts which could justify the court inferring that such mental states had existed.
- I did not have time to deal with the matter fairly in July and therefore adjourned the claim. I sought to explain to Mr Eblish at the time what material he ought to provide to seek to deal with Mr Sheldon's points of law and of pleading. I then, during the post-hearing drafting process, formulated my eventual written order into a form which was designed to ensure that Mr Eblish knew, absolutely clearly, what material he would have to produce within the timetable it set out, and which had steps leading up to this hearing.
- In paragraph 4 of the order, I set out precisely what that material was as follows:
"4. The Claimant must serve a proposed revised Particulars of Claim on the Defendant by 4pm on 13th September 2024 which must be in numbered paragraphs and comply with the following:
a. Contain a concise statement of the facts on which the Claimant relies;
b. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) knew a fact or matter, the Claimant must specify whether he means that:
i. They actually believed it in their own mind;
ii. They were reckless (they did not care whether or not it was the case); and/or
iii. A reasonable person in their position would have known it was the case;
c. Where it is alleged that the Defendant (or those for whom the Defendant is said to be liable) intended something, the Claimant must specify whether he means that:
i. They actually intended it in their own mind;
ii. They were reckless (they did not care whether or not it would be the case);
iii. A reasonable person in their position would have thought it was bound to happen; and/or
iv. A reasonable person in their position would have thought it might happen;
d. In relation to the above matters of knowledge and intention, the Claimant must set out the facts and matters relied on which would cause a court to reach those conclusions;
e. The Claimant must set out each cause of action relied on, identifying the facts and matters relied on for each element of the cause of action (as well as setting out the loss and damage said to have been caused):
i. If alleging negligence, the Claimant must set out:
1. What gives rise to the relevant duty; and
2. The relevant breach of duty;
ii. If relying on misfeasance in public office, the Claimant must set out:
1. What was unlawful and why it was unlawful;
2. Whether he says that the Defendant intended to harm and, if so, what is meant by intention by reference to the types of intent identified at paragraph 4(c);
3. Whether he says that the Defendant knew that they were acting unlawfully and if so what is meant by 'knew', by reference to the types of knowledge identified at paragraph 4(b);
iii. If relying on a tort that they caused loss by unlawful means, the Claimant must set out:
1. What were the means;
2. Why they were said to be unlawful; and
3. Whether the loss was intended by the Defendant and if so what is meant by intention by reference to the types of intent identified at paragraph 4(c);
iv. If relying on trespass to the person or trespass to goods, the Claimant must set out:
1. Whether the act of trespass by the Libyan Security Services, and any of its effects, was intended by the Defendant; and
2. What is meant by intention by reference to the types of intent identified at paragraph 4(c);
v. If relying on the Human Rights Act 1998, the Claimant must set out:
1. Each article of the European Convention on Human Rights or its Schedule or its First Protocol that is relied upon;
2. How that article has been breached; and
3. Why it is equitable for the court to extend the one year time limit in s.7(5) of the Human Rights Act 1998;
vi. If relying on deliberate concealment under s.32(1)(b) of the Limitation Act 1980, the Claimant must set out:
1. Whether the meeting and its contents were deliberately concealed from the world generally; or
2. Whether there was a deliberate decision to conceal the meeting and its contents from the Claimant; and
3. In either case, the facts and matters relied on to prove or infer that there was such a decision."
- The paragraph sought to focus on the particular points raised by Mr Sheldon and effectively required Mr Eblish to set out his case on each of those points in the revised particulars of claim, so that it could then be seen whether or not the case should be allowed to go forward in whole or in part, and the extent (if at all) to which the defendant's application should succeed. The order also provided for the defendant to produce a response and the parties eventually have to file and serve further skeleton arguments.
- Mr Eblish produced revised particulars of claim which set out the alleged facts as I have already described, and then in a section entitled, "Legal grounds" set out his case in claims in negligence, misfeasance in public office, human rights violations and trespass to the person and property. Mr Sheldon has contended that the document did not comply with all of my paragraph 4 of my July order, and I will return to that in due course.
- Mr Eblish further, on 5 November 2024 provided a skeleton argument which was supplemented by a response to a further application which the defendant had made to strike out with a summary judgment and which further application turned out to have been made in error. Mr Eblish's further document was dated 8 November 2024.
- Mr Sheldon has continued to contend to me at this hearing that the defendant should succeed on the alternative bases that: (i) the claim should be struck out on the alternative bases that the revised particulars of claim do not set out reasonable grounds for a claim to be brought and succeed, effectively relying on CPR 3.4(2)(a), and (ii) the defendant should be granted reverse summary judgment under CPR 24.3, the claim having no real prospect of success and there being no other compelling reason why it should be disposed of at a trial.
- I have heard oral submissions in addition to written skeleton arguments and material from both Mr Sheldon and Mr Eblish, and I have sought to take all the material before me and all those submissions into account in giving discussions. If I do not deal with any particular matter, that is not because I have simply ignored it.
- As I have said above, the application under CPR 3.4(2)(a) is simply a question as to whether on the pleaded facts, reasonable grounds are shown for the bringing of the claim. If there is a breach of an order (such as the July Order), the Court has a discretion (CPR3.4(2)(c), to be exercised on a proportionate basis as to whether or not to strike-out, and the same applies if an abuse of process is identified (CPR3.4(2)(b)).
- In relation to reverse summary judgment, the court has to consider two questions. The main question is whether the claimant has no real prospect of succeeding on the claim or issue. As far as that is concerned, the principles that the court applies are well known and set out in White Book note 24.3.2:
"24.3.2 "no real prospect of succeeding"
The following principles applicable to applications for summary judgment were formulated by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd's Rep IR 301 at [24]:
i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
- I note, in particular, that the court must ask itself whether or not the claim is realistic, whether it can carry some degree of conviction being more than merely arguable. Further, that the court must take into account not merely the evidence and material which is presently available but also that which should be reasonably be expected to be available at trial; although in order for the court to consider that material evidence might surface within the process leading up to and including the trial, including the periods for disclosure and witness statements but also the trial itself, the court does have to ask itself whether there is some foundation for such a consideration to be the case.
- I further bear in mind that the mere fact that there may be such potential evidence, and also the principle that the court will not conduct a mini-trial, does not mean the court should not ask itself whether it can grapple with and determine particular points of law.
- In addition to the question as to whether there is not any real prospect of success, the court does also have to go on to ask itself whether there is any other compelling reason why the case or issue should actually go to trial.
- Mr Sheldon does contend that in relation to various aspects of the matter, I should decide against the claimant because, he says, the claimant has failed to comply with my July order in relation to failing to deal with various matters referred to in its paragraph 4. Mr Sheldon submits that because those matters, he says, have not been dealt with, it follows that: firstly the claimant has not actually advanced a case in relation to them; and, secondly, the claimant should not now be allowed to do so informally because the court has already required him to do so formally within a process set out in my July order. It would be wrong, Mr Sheldon submits, for me to give the claimant a yet further chance to do what he had been specifically directed to do in the past.
- I do bear in mind generally in relation to this application which raises, as well as substantive issues, questions of case management the following. Firstly, Civil Procedure Rule 3.1A requires me, when making a case management decision, to have regard to the fact that the claimant is unrepresented and representing himself. However, I also bear in mind that it was made clear in Barton v Wright Hassall LLP [2018] UKSC 12 that the rule is not any excuse for a claimant not to comply with the ordinary responsibilities of complying with rules, practice directions and orders.
- Secondly, I have borne in mind that the claimant's first language does not seem to me to be English and that he is a litigant in person dealing with distinctly complicated questions of high-level law. In this particular situation, it seems to me that he is at least potentially vulnerable within CPR 1.6 and practice direction 1A, and which require that vulnerability should inform and be taken account of in the application by the court of the overriding objective.
- The overriding objective is contained in CPR 1.1:
"1.1 (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable:
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate:
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases;
(f) promoting or using alternative dispute resolution; and
(g) enforcing compliance with rules, practice directions and orders."
- While the rule makes clear that there are numerous matters which are relevant to achieving the objective of dealing with a case justly and in proportionate cost, two of those matters are for the court to ensure that the parties can participate fully and that the case is dealt with fairly, which may result in giving a vulnerable litigant in person a considerable degree of latitude and flexibility.
- However, those aspects have to be balanced against the remainder of the overriding objective, including such matters as dealing with the case in a proportionate way and recognising the need to enforce compliance with rules, practice directions and orders. I borne all those matters in mind in coming to my particular decisions.
- One further matter which I have also borne in mind are the rules regarding the pleading and stating of cases relating to the subject of intention and to the state of mind of a relevant person at relevant times, particularly where the allegation is that the person had a wrongful state of mind.
- Under CPR Practice Direction 16 paragraph 8.2, the claimant has to set out specifically various matters in the particulars of claim where they wish to rely on them in support of a claim. Those matters include any allegation of fraud, of the fact of any illegality and of any notice or knowledge of a particular fact. That is part of the court rules, but there is also a general principle of pleading that if a particular state of mind is relied on, and particularly a wrongful state of mind, the claimant must set out not only what the state of mind is said to have been, but also the facts from which, if established, the court would be asked to infer that that the relevant person had had the relevant state of wrongful mind. Although those facts do not have to make it clear beyond doubt, they do have to (if established) be such as which lead the court on a balance of probabilities to conclude that the state of mind existed. That principle is set out in one of the judgments before me, namely Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at paragraph 55 of the judgment of Lord Hope and paragraph 186 of the judgment of Lord Millett.
- The principle is referred to in numerous other cases, although the case law also makes clear that the court should be careful in applying the principle in circumstances where the claimant's case essentially involves assertions that what has happened has effectively been concealed from them, and therefore, that they can only set out full particulars once documents and other material have been disclosed by the defendant's side. Nevertheless, although that principle exists, it is still necessary to set out both what the wrongful state of mind is said to have been and some sort of set of facts which would lead for the court to consider without more that that was the case. See for example cases cited at paragraph 55 of my judgment in Toner v Telford [2021] EWHC 516 (QB). I will turn to those matters in due course where they are relevant.
- The first claim which the claimant continues to seek to advance is a claim in negligence in relation to its asserted psychiatric injury caused by the Libyan Security Services as a consequence of arresting and assaulting his relatives and inducing the Egyptian Security Services to arrest and humiliate his friend. He asserts that the British Security Services by way of providing his name to the Libyan Security Services, who were, according to the claimant, "A foreign regime known for its brutality", the British Security Services breached a duty of care owed to him, the claimant.
- Mr Sheldon has accepted, purely for the purposes of this hearing and the applications before me, that the claimant's claim as to existence of a duty of care owed to him and its having been breached has a real prospect of success. He, however, submits that this claim is simply bound to fail, it does not disclose reasonable grounds and has no real prospect of success, because he says that it is in reality a "secondary victim" claim, but where the law imposes strict limits of how and when a secondary victim can bring a claim for an injury which they have suffered in consequence of observing or being exposed to injuries being suffered by others.
- Mr Sheldon here relies principally on the Supreme Court's recent restatement of relevant principles in the decision of Paul v Royal Wolverhampton NHS Trust [2024] 2 WLR 417. In that decision, the Supreme Court fully reviewed the case law relating to claims made by secondary victims in the context of cases where: there had been a misdiagnosis of the medical condition of a primary victim by the primary victim's doctor; and, in consequence, the underlying condition had not been treated; with the results that (i) the primary victim then became severely ill and on occasion, died, and (ii) the primary victim's relatives then suffered psychiatric injury as a result of those eventual circumstances.
- The question in that case was whether the relatives (the secondary victims) could bring claims against the doctor, for whether only the primary victim and their estate could bring such a claim. In considering those matters, the Supreme Court reviewed other secondary victim cases, in particular situations where persons had suffered injury as a result of breaches of duty on the part of defendants (those persons being primary victims), and their relatives or others associated with the primary victims observing or learning as to what had happened, and themselves suffering psychiatric injury as a consequence or such observing or learning (they being the secondary victims).
- The majority judgment was concurred in by Supreme Court Justices Leggatt, Rose, Briggs, Sales and Richards. The general type of question was outlined in paragraphs 21 to 25 of the judgment:
"21. Under the common law a doctor responsible for providing medical care to a patient owes a duty to the patient to exercise reasonable skill and care to protect the patient's life and health. If the patient suffers physical or psychiatric injury of a kind which the exercise of such care should have prevented, the doctor is liable to pay damages to compensate the patient for the injury. If the patient dies, such a claim can be pursued by the patient's personal representative(s) for the benefit of his or her estate.
22. It is not in dispute that such claims can be made in these cases. The claims in issue, however, are not claims made on behalf of the person who died for the harm suffered by that person. They are claims brought by close relatives of that person for harm which those relatives have suffered as a result of witnessing the person's death (or its immediate aftermath). The critical question on which the validity of the claims depends is whether a doctor, in providing medical services to a patient, not only owes a duty to the patient to take care to protect the patient from harm but also owes a duty to close members of the patient's family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor's negligence. (We should make it clear that nothing turns for this purpose on whether the negligence consists in an act or an omission).
23. There are two ways of approaching this question. One is by considering the basic legal principles which determine the scope of the duty of care owed by a doctor and the persons to whom this duty is owed. The other approach is to examine the cases in which courts have previously decided whether damages could be recovered by claimants who suffered injury in connection with the death or injury of another person. Historically, the leading cases have involved accidents (mostly road traffic accidents). The question then is whether the rules which have been developed in those cases either apply already or can by a permissible incremental development of the common law be extended to apply to claims of the present kind arising in the field of medical negligence.
24. In arguing these appeals counsel for the claimants focused on the latter approach. Although invited to address the existence of a duty of care in terms of the general principles which apply to doctors, they submitted that it is unnecessary to do so because the relevant requirements for claims of the present kind have been established by case law. That can indeed be said - and has not been disputed on these appeals - as regards claims arising from accidents, using that term in its ordinary sense to refer to an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means. But a critical question raised by these appeals is whether or not the rules developed in relation to accidents apply where, as a result of negligence of a doctor, a person dies or manifests injury from an illness which proper treatment would have prevented. We do not think that this question can be answered satisfactorily without considering the general principles that determine when a doctor owes a duty of care to someone other than their patient.
25. As it reflects the way in which the appeals were presented, we will start by examining the case law directly concerned with claims for damages for personal injury suffered in connection with the death, injury or imperilment of another person. We will then test our provisional conclusions by reference to the general principles which determine when a doctor who assumes responsibility for providing medical services to a patient owes a duty of care to prevent harm to a third party."
- In paragraphs 38 to 43, the Supreme Court considered the previous decision of Alcock, which related to the Hillsborough disaster and where various secondary victim claimants brought the claims as a result of the distress and psychiatric injury which they had suffered from observing (generally on television) the tragic events and suffering of their relatives who were killed in the disaster.
- In paragraph 43:
"43. Of the two claimants who were present at the ground, one lost two brothers in the disaster and the other lost his brother-in-law. Their claims failed because a sufficiently close tie of love and affection with the deceased could not be presumed from their family relationship and had not been proved by evidence. Claimants who had seen their son's body in the mortuary after the disaster for the purpose of identification were held not to come within the scope of the "aftermath" of the disaster. Claims based on seeing the disaster on television failed because the televised images of the unfolding tragedy (which did not depict the suffering of recognisable individuals) could not be treated as equivalent to being present at the stadium."
It was held that those claimants failed either because they had not been present at the ground at all but had merely observed matters on television or because they had an insufficiently close tie to the primary victim.
- The Supreme Court then went on to consider the subsequent case of Frost, also relating to the Hillsborough disaster and in paragraph 45, set out the key parts of the judgments of the House of Lords in that case which laid out the then principles limiting when a secondary victim case could be bought:
"45. The members of the House of Lords were substantially agreed about what those requirements were. Lord Steyn stated them, at p 496D-E, as being:
"(i) that [the claimant] had a close tie of love and affection with the person killed, injured or imperilled; (ii) that he was close to the incident in time and space; (iii) that he directly perceived the incident rather than, for example, hearing about it from a third person."
Lord Hoffmann summarised the requirements, at p 502G-H, in very similar terms as follows:
"(1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else."
Lord Goff of Chieveley gave a similar summary of the requirements (p 472E). Lord Griffiths adopted Lord Hoffmann's summary (p 462G-H), and Lord Browne-Wilkinson agreed with the speeches of both Lord Steyn and Lord Hoffmann (p 462B-C)."
- In paragraphs 50 and 51 the Supreme Court went on to say:
"50. In case it was necessary to decide whether to depart from any of these decisions of the House of Lords, in particular Alcock, these appeals have been heard by a panel of seven Justices. But in the event none of the parties has urged us to depart from any earlier decision reached at this appellate level. The claimants have based their submissions squarely on the existing case law. They argue that allowing recovery in the present cases either follows from or is at any rate consistent with what has previously been decided by the House of Lords.
51. A feature of the law as it has evolved is the distinction between "primary" and "secondary" victims: see para 40 above. Precisely how the distinction is or should be drawn, if at all, potentially raises difficult questions: see e.g. the Law Commission Report on Liability for Psychiatric Illness (1998) (Law Com No 249) [1998] EWLC 249, paras 5.52, 5.54; Harvey Teff, "Liability for negligently inflicted psychiatric harm: justifications and boundaries" (1998) 57 CLJ 91; Chris Hilson, "Liability for psychiatric injury: primary and secondary victims revisited" (2002) 18 PN 167. In W v Essex County Council [2001] 2 AC 592, 601, the House of Lords expressed the view that the concept is still to be developed in different factual situations. But it is not an issue on these appeals. It is common ground that the claimants are to be classified as "secondary victims". The essential point is that the harm for which they are claiming compensation in each case is harm brought about indirectly by injury caused to another person."
There they stated that they were concerned with what was truly to be classified as a secondary victim case and that they were not even being invited to depart from the principles in Alcock.
- In paragraphs 71 to 74, the question was considered as to what sort of shock a secondary victim claimant had to have suffered in order to be able to bring a claim:
"71. Sion, Walters, Shorter and Ronayne were not cases in which there had been an external, traumatic, event in the nature of an accident caused by the defendant's negligence. In none of these cases, however, did the court decide the question whether in principle the rules developed in accident cases ought to be applied. In the latter three cases this question was not even raised or mentioned: it was simply assumed that the same rules applied. Instead, the judgments in all these cases focused on whether it could be said that the claimant had suffered psychiatric illness because of a "sudden shock" or a "sudden appreciation of a horrifying event".
72. Those phrases reflect language used in Alcock. Lord Oliver, at p 411F, identified as one of the features of all the reported cases that the injury "arose from the sudden and unexpected shock to the plaintiff's nervous system". Lord Ackner said, at p 401F, that:
"'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
Those observations were no doubt true as descriptions of how historically the causation of psychiatric illness in accident cases was understood. The very term "nervous shock", which was still commonly used in court proceedings when Alcock was decided, embodies such an understanding. The crude mechanical model which attributes psychiatric illness in such cases to an "assault on the nervous system" has, however, long since been discredited: see e.g. the criticism made in the Law Commission Report, para 5.29.
73. The remarks of Lord Ackner and Lord Oliver quoted above were not necessary to the decision of the House of Lords in Alcock and we do not consider that those dicta establish an additional restriction on the recovery of damages by secondary victims nor that the law is tied to an outdated theory of the aetiology of psychiatric illness. The requirements established by the decision in Alcock were, in our view, accurately and authoritatively summarised in Frost (see para 45 above). They do not include a requirement that the claimant's psychiatric injury must have been caused by a "sudden shock to the nervous system". None of the law lords in Frost endorsed such a requirement and Lord Goff expressly stated, at p 489E-F, that "the nature of PTSD illustrates very clearly the need to abandon the requirement of nervous shock in these cases, and to concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness".
74. With regard to causation, it is sufficient for a claimant who was present at the scene of the accident (or its immediate aftermath) in which a loved one was killed, injured or imperilled to show that there is a causal connection between witnessing that event and the illness suffered. It is not necessary (even were it possible) to demonstrate the neurological or psychological mechanism by which the illness was induced."
- In paragraphs 94 to 96, the Supreme Court reviewed the question as to whether the relevant horrific event had to be close in time to the negligent act or omission and considered that that was not a requirement:
"94. Although they considered themselves bound by Novo to apply such a test, the Court of Appeal could see no good reason why the gap in time (short or long) between the negligence and the horrific event caused by it should affect the defendant's liability. Nor can we. Sir Geoffrey Vos MR postulated a case of a negligent architect who designs a door in a load-bearing wall without specifying an RSJ, causing masonry to fall on a primary victim's head years later (paras 79-80). These facts are similar to those of the actual case of Clay v AJ Crump & Sons Ltd [1964] 1 QB 533, where an architect who was responsible for the safety of a building site negligently left a wall standing when a building was demolished. The architect was held liable to compensate a person working on the site who was injured when over two months later the wall collapsed. In agreement with the Court of Appeal, we see no reason why, in a case of this kind, the gap in time between the negligence and the accident should prevent a claim by a secondary victim when it does not prevent a claim by a primary victim. If, for example, a mother who was present and saw masonry fall on her child's head suffered psychiatric injury, her ability to make a claim cannot rationally depend on the length of time between the negligence and the accident.
95. Typically in accident cases, the accident and the defendant's negligent act or omission which caused the accident occur at much the same time. That is almost inevitably so in cases such as McLoughlin involving road accidents. We agree, however, with Chamberlain J that there is nothing in any of the House of Lords authorities to suggest that the right to recover damages for personal injury caused by witnessing a person's death or injury in an accident is affected by the length of time between the negligent act or omission and the accident. The requirements established by the decision in Alcock include closeness in space and time to, and direct perception of, the accident (or "the event caused by the defendant's breach of duty to the primary victim", per Lord Oliver at p 416E). They do not include any requirement of closeness in space and time to the defendant's breach of duty. There is no suggestion in Alcock and Frost that the timing of the negligent acts or omissions was a relevant consideration in those cases. In Frost Lord Goff mentioned that the immediate cause of the Hillsborough disaster was the decision of a senior police officer to open an outer gate to the stadium without cutting off the crowd's access to two pens in which crushing then occurred: [1999] 2 AC 455, 465H-466C. But nothing was said by any of the law lords (or the lower courts) to suggest that the claims of either relatives or police officers would be affected if the operative negligence lay in decisions on crowd control or police deployment taken in the days before the match.
96. Although in the present cases the defendants' stance on this point appears to have fluctuated (compare para 63 of Chamberlain J's judgment with para 7 of the judgment of the Court of Appeal), in his oral submissions on their behalf in this court Mr Simeon Maskrey KC made it clear that the defendants do not contend that there is any requirement of closeness in time between the defendant's negligence and the accident which caused the claimant psychiatric injury. In our opinion, that concession was rightly made."
- In paragraph 103, it was held that it was not necessary for the horrific event to be the first manifestation of damage to the primary victim:
"103. There is no rational answer to any of the questions we have posed because there is no principle which justifies any version of the proposed test. We agree with the Court of Appeal that it is illogical to make the liability of a defendant for injury caused to a secondary victim depend on whether the event witnessed by the claimant was or was not the "first manifestation of damage" to the primary victim.
Should damages be recoverable in the absence of an accident?"
- In paragraphs 104 to 106, it was held that for a secondary victim claim to be able to be made, it was necessary for there to have been an, "Accident.":
"104. Having rejected the two justifications for the result reached in Novo canvassed by the courts below, we must consider whether Novo was correctly decided. In our opinion it was, for the reason given by Lord Dyson MR, namely, that the claim could not succeed because the claimant was not present at the scene of the accident or its immediate aftermath and the event which she witnessed was not an accident.
105. We think it relevant to note first that the occurrence or manifestation of injury is not part of what defines an accident. An accident is an external event which causes, or has the potential to cause, injury: it is not the injury, if there is one, caused by that event. In the many cases which have involved accidents, the right to claim damages has depended on whether the claimant was present at and directly perceived the accident (or its immediate aftermath). Witnessing injury caused by the accident has not been treated as either necessary or sufficient. It is not sufficient because Alcock and other cases in that line of authority have held that, where the claimant was not present at the scene of the accident (or its immediate aftermath) but saw the injured victim or the body of the victim afterwards, damages cannot be recovered. Nor is witnessing injury caused by the accident necessary because a claim may succeed where the claimant fears for the safety of another person, but no injury is in fact suffered by that person. Lord Oliver made this point when he said in Alcock, at p 412A:
"There may, indeed, be no primary 'victim' in fact. It is, for instance, readily conceivable that a parent may suffer injury, whether physical or psychiatric, as a result of witnessing a negligent act which places his or her child in extreme jeopardy but from which, in the event, the child escapes unharmed."
106. Since witnessing injury sustained by another person is neither a necessary nor sufficient condition for a claim as a secondary victim in an accident case, no ready or obvious analogy can be drawn from such cases to cases where the claimant witnesses injury that has not been caused by any external accident."
- The Supreme Court set out its eventual conclusions as to the principles to be applied as to whether a secondary victim could bring a claim, in paragraphs 140 to 142 of the decision:
"140. We return to the point with which we began this judgment, that the general policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people. What therefore principally requires justification is not the narrowness of the category of cases in which a claimant who suffers personal injury which is secondary to the death or injury of another person can recover damages but the fact that it exists at all. Lord Oliver made this point in Alcock, when he said, at p 410H:
"What is more difficult to account for [than the general rule] is why, when the law in general declines to extend the area of compensation to those whose injury arises only from the circumstances of their relationship to the primary victim, an exception has arisen in those cases in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact."
Lord Oliver regarded the existence of this exception as "now too well established to be called in question" and so do we.
141. Unless the exception defined by the Alcock line of authority is to become the general rule, however, a line must be drawn somewhere to keep the liability of negligent actors for such secondary harm within reasonable bounds. Wherever the line is drawn, some people who suffer what may be serious illness in connection with the death or injury of another person will be left uncompensated. The mother who learns in a telephone call that her child has been killed in a road accident may suffer an illness no less severe than a mother who was present at the scene and saw the accident. But there is a rough and ready logic in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim. These limitations are justified, not by any theory that illness induced by direct perception is more inherently worthy of compensation than illness induced by other means; but rather by the need to restrict the class of eligible claimants to those who are most closely and directly connected to the accident which the defendant has negligently caused and to apply restrictions which are reasonably straightforward, certain and comprehensible to the ordinary person.
142. We have not been asked on these appeals to alter or abrogate the limits on the recovery of damages by secondary victims in accident cases established by the decision of the House of Lords in Alcock. Instead, this court is asked to recognise as analogous a category of cases in which illness is sustained by a secondary victim as a result of witnessing a death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident but is the result of a pre-existing injury or disease. For the reasons given, we do not consider that such cases are analogous. That conclusion is reinforced by our opinion that the persons whom doctors ought reasonably to have in contemplation when directing their minds to the care of a patient do not include members of the patient's close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated. Hence there does not exist the proximity in the relationship between the parties necessary to give rise to a duty of care."
- I note that in paragraph 140, they confirmed that they were dealing with a category of cases in which a claimant who had suffered personal injury which was secondary to the death or injury of another person could recover damages, and they described the law as to the ability of secondary victims to bring a claim as being in the nature of an exception. Further that, in paragraph 141, they held that the exception was a limited one, and was to be limited to those who were present at the scene of the relevant accident, witnessed the accident and has a close tie of love and affection with the primary victim.
- Further that in paragraph 142, they rejected an attempt to alter or aggravate those limits; and referred to their conclusion being reinforced by their opinion that the persons whom the relevant doctors (that is to say the defendants in the Paul case) ought reasonably to have had in contemplation when directing their minds to the care of a patient, would not include members of the patient's close family who might be psychologically affected by witnessing the effects of a disease which the doctor ought to have diagnosed and treated and helped, "Hence there does not exist the proximity in the relationship between the parties necessary to give rise to a duty of care."
- The Supreme Court applied the principles which they had set out to the facts before them to hold that those secondary victims failed in their claims, and that this was not because the secondary victims had not been present at the times the relevant diseases and illnesses manifested themselves, but because there was not in fact a law on the facts of that case any, "Accidents" and the nature of the events which had occurred were very different.
- Mr Sheldon contends that what the claimant is trying to do here is to advance a secondary victim case. He says that the claimant is putting his case on the basis that he has suffered psychiatric injury as a result of injuries suffered by members of his family or friends, and that he cannot satisfy the requirements for such a claim as: firstly, he has not set out amount to a sufficiently close tie of love and affection to come within the principles; and, secondly, his illness resulted as a result of his learning about what had happened years later when he was in a different country, rather than him being present at the scene of a particular index event, such as the visitation to the Libyan family home by the Libyan Security Services in 2006.
- In this regard, Mr Eblish's various submissions on this matter seemed to me to be more directed towards whether this was a primary victim case invoking the ordinary principles of personal injury negligence law, than to Mr Sheldon's specific submissions in relation to secondary victim claims which I have just set out. It seems to me that if this is to be categorised as an ordinary secondary victim type claim, then Mr Sheldon would be correct.
- Although, I might have been prepared to allow the claimant to advance more material as to the nature of his relationship and emotional ties to his brothers and his friend, a matter which was not dealt with specifically in my July order, it does seem to me that, where the injury is said to have been suffered by the claimant as a result of his learning of matters years later while he was in a different country, it is simply impossible for him to make out the requirements of a secondary victim claim that he must have witnessed the relevant, "Accidents" i.e. the relevant events, and been present at the scene(s).
- If the claim is to be seen in that way i.e. as a secondary victim case, then it seems to me that it must necessarily fail, reasonable grounds are not made out for it and it has no real prospect for success.
- However, I am not satisfied that the claim is really to be seen on that basis, notwithstanding that the claimant has himself in his own documents used the words, "Secondary victim." That is for the following set of reasons.
- The duty which is alleged here is a duty which is alleged to have existed (and where it is accepted that there is a real prospect of success as to establishing its existence and breach) between the security services and the claimant. The claimant contends that the security services owed him a duty not to provide his name to the Libyan authorities, with the potential of him suffering all sorts of harm as a result, and that that duty was breached by the provision of his name to them.
- Thus, the claimant is not relying on a duty which he is contending was owed by the defendant to his brothers and his friend. He says that he was relying on a duty owed to him the breach of which has caused him psychiatric damage, albeit by a process involving attacks on his brothers and friend which attacks and their consequences have led to his sustaining the psychiatric damage.
- That, it does not seem to me, is necessarily to be categorised a secondary victim claim. It seems to me that that can very well be categorised as a primary victim claim where the claimant is the primary victim, albeit that the damage has been caused by the particular indirect factual process which I have identified. That, it seems to me, renders this case potentially very distinguishable from those which are considered in the Paul case and the cases referred to in it.
- Those cases all proceed, it seems to me, on the basis that the effective duty was owed, not to the claimant secondary victims, but to the primary victims; and that what the secondary victims are doing is essentially to make their claims based on the breach of duty to the primary victim. There was an alternative way of approaching the claims actually made by the claimants in Paul by analysing them on the basis that they were seeking to assert that the relevant defendants actually owed them a duty which had been breached, but that approach and assertion was rejected on the basis that there was insufficient proximity (see the final sentence at paragraph 142 of the Supreme Court's judgment).
- It is unclear to me as to whether technically, the secondary victim cases are to be catogorised as being effectively ancillary and consequential upon the breach of duty owed to the primary victim, or whether they are to be seen as cases dependent on whether a duty of care was owed not merely to the primary victim, but also to the secondary victim (should there have been sufficient proximity). The Supreme Court's general analysis in paragraphs 21 to 25 could suggest either, the analysis in paragraph 140 may suggest the former and the analysis in paragraph 142 may suggest the latter.
- However, whatever is the correct underlying legal theory is involved, it seems to me that this case is potentially different; and that this case is advanced as an argument that the duty was simply owed to the claimant and not to his relatives, and that it was breached so as to cause him injury so that he is to be treated as a primary victim (notwithstanding that his injury was an indirect one caused by observing injury to other persons); rather than that the duty was (simply) owed to his brothers and/or friend (and not to the claimant) and that its breach caused him indirectly psychiatric damage (which is the paradigm secondary victim case). This claimant is not relying on any breach of any duty owed to those first injured (he would probably say that no such duty existed) but rather on a breach of a duty of care owed to him which has caused him damage (albeit indirectly through a process of injury to others) so that he is a primary victim. On that basis, it seems to me that the principles which Mr Sheldon relied upon are simply potentially not applicable, and do not mean that there is either no reasonable grounds pleaded or that there is not a real prospect of success.
- I have been concerned as to whether the defendant might be able to say that, in these circumstances, the claim is for damage which is too remote and/or that, even if the claimant can establish at trial the existence of a duty owed to him and that the duty has been breached, the relevant chain of causation involving the Libyan Security Services arresting and assaulting and causing trouble for others and only all that resulting in eventual psychiatric injury to the claimant, is simply so stretched out that that the damages claim would be rejected on grounds of remoteness.
- However, I have twice asked Mr Sheldon as to whether the defendant is relying on this application on a remoteness argument and Mr Sheldon has told me that it is not. It therefore does not seem to me that I should consider that aspect any further, although it will of course not prevent the defendant relying on such an argument in the future, if the defendant is so minded.
- I am reinforced in my conclusions by a consideration that there may well be situations where one person may be able to claim damages for psychiatric injuries arising from injuries suffered by another human or otherwise on the basis of a breach of a duty owed to the first person. For example, if a parent made a contract with a private medical practitioner for the private medical practitioner to treat their child, and the child is mistreated with the result that the parent suffers a psychiatric injury, in some circumstances, the parent may be able to bring a claim for damages based on their psychiatric injury in breach of contract on the basis that the medical practitioner owed the parent a direct (contractual) duty to treat the child with proper and reasonable care.
- That of course would be a claim of contract, and here I am dealing with the field of tort and which may well admit to other considerations. Nonetheless, it seems to me at first sight that it would be the least arguable that such a claim could be brought, notwithstanding the psychiatric injury that was suffered as a result of injury and illness of another person.
- Equally, it seems to me possible that a claim of tort might exist in some circumstances where psychiatric injury was suffered as a result of a physical act which did not directly affect the resultant claimant. For example, if a claimant's loved animal (or even a loved animal belonging to another) was killed in circumstances where a direct duty of care was owed to the claimant, it seems to me that the claimant might be able to claim losses for psychiatric injury suffered as a result.
- Those various scenarios all involve a duty of care being owed by the wrongdoer directly to the claimant, and that duty of care being breached, and it seems to me they would tend to be dependent upon that being the case.
- However, I do not see that in such circumstances, which are effectively what is alleged by the claimant in this case, the person who was owed the duty of care which has been breach and who has suffered the psychiatric injury should not be able to claim for what is their eventual psychiatric injury. It might in fact be thought to be rather odd that in circumstances where a wrongdoer owes no duty to the person who is initially injured, so that the person initially injured cannot claim against the wrongdoer, did owe a duty which they had breached to the person who was indirectly injured, that in fact neither the person directly injured, nor the person indirectly injured could sue. That is a matter which again, tends to reinforce me in my conclusion.
- All I am concerned with here is as to whether the claim discloses reasonable grounds for there being a tort and whether the claim has a real prospect of success, on the basis that it is accepted (albeit only for the purposes of this hearing) that there is a real prospect of success on existence of duty owed to the claimant and breach of duty. It seems to me, for the reasons given above, that the claim does have reasonable grounds advanced and a real prospect of success, and so that I should not be striking out or granting reverse summary judgment.
- I turn to the next claim which is that as a result of the breach of duty, the claimant had his property taken and effectively stolen by the Libyan authorities. Mr Sheldon accepts again that, only for the purposes of this hearing, the law of this country is to be applied, rather than the then law of Libya. Mr Sheldon here submits firstly that the claim is for pure economic loss, secondly that no sufficient claim is pleaded to start with and thirdly, that any such claim would necessarily be limitation barred.
- I deal firstly with the question as to whether any such claim would be simply for economic loss. This was a primary way in which Mr Sheldon put his submissions in July. He relies on the general principle that some sort of assumption of responsibility is required in order for a claim to be made for economic loss. He cited by way of example, the House of Lords decision in Caparo v Dickman [1990] 2 AP 605 at paragraph 618 E to F, where it is stated in Bridge L's judgment:
"One of the most important distinctions always to be observed lies in the law's essentially different approach to the different kinds of damage which one party may have suffered in consequence of the acts or omissions of another. It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss. A graphic illustration of the distinction is embodied in the proposition that:
"In case of a wrong done to a chattel the common law does not recognise a person whose only rights are a contractual right to have the use or services of the chattel for purposes of making profits or gains without possession of or property in the chattel. Such a person cannot claim for injury done to his contractual right.""
- Mr Sheldon submits that any such claim would be for economic loss only and any claim for Libyan Security Services taking the property would be for economic loss only, and that the claimant has simply not advanced material which would enable such a claim to be made.
- It seems to me that the difficulty with this argument is Mr Sheldon's assertion that the Libyan Security Services taking of the claimant's property is a matter simply of economic loss as far as the claimant is concerned. It seems to me at first sight that it is not a matter of economic loss, it is a matter of actual physical loss, namely the disappearance of the physical property.
- Mr Sheldon submits that the property only has effectively a notional value, that the gold or electronic items in this case have no value other than that they could be turned into money, and therefore the matter should be seen as being a matter of economic loss. He says that there is no suggestion of the property being damaged, rather it has simply been taken.
- However, it seems to me that that is over emphasising the use of the word "economic" within the concept of "economic loss". If the relevant items had simply been damaged by the Libyan Security Services, for example they had decided to put a hammer to the various electronic items, then it seems to me that the loss would obviously be physical. I cannot see what the difference is between the items being destroyed at the home, and the items simply being physically removed. Again, what has happened is effective actual (rather than just intangible "economic") damage, in this case, in the form of taking and deprivation of the physical item.
- The "economic loss" principle, it seems to me, relate to matters such as the deprivation or depreciation of intangible items such as of a business or an employment (or other ability to earn money) or money in a bank account, or similar matters such as the spending of money on a physical asset which is not worth as much as the money which is spent on it, all of which result effectively in a purely financial loss or damage such as a loss or inability to carry on a business, generate profits, gains or other advantages.
- It does not seem to me that a situation as advanced by the claimant here, that the defendant has committed a wrong which has resulted in a third-party unlawfully and wrongfully taking the claimant's physical property is "economic loss" or "pure economic loss" at all.
- I therefore reject the first way which Mr Sheldon puts his case in relation to the taken property.
- The second way which Mr Sheldon puts his case in relation to the taken property is to assert that the claim is not properly pleaded. Here he relies on two particular points. Firstly, he contends that the revised particulars of claim provided purportedly under my July order, do not in fact advance any claim for loss of the property at all. Loss of the property is simply, he says -- and it seems to me quite rightly -- not mentioned in the revised particulars of claim document.
- In those circumstances, he simply says as the claim is not being advanced, I simply do not have to be concerned with it.
- Mr Eblish responds to say that, although it is not mentioned in the revised particulars of claim document, this claim is mentioned in the eventual November 2024 skeleton argument where the negligence claim is said to include, "The financial loss from stolen property."
- Secondly, Mr Sheldon submits that the relevant claim is unmaintainable because there is no allegation or indeed grounds for an allegation that the British Securities ought to have had any knowledge of the claimant having substantial property in Libya, and that there is no reason as advanced as to why they should have foreseen that that would be the case.
- In those circumstances, it is asserted that no relevant duty could exist and that, if any relevant duty did exist, the relevant damage would not be within the scope of the wrong committed by reason of the relevant breach of duty.
- This was a matter which it seems to me had not been raised as such before now, and that as a result Mr Eblish had some difficulty in dealing with it, although his eventual response was to say that he could not point to a reason why the British Security Services would have known or would have been able to foresee that he had any property in Libya which the Libyan Security Services might seek to attack or take.
- As far as this aspect is concerned, I have had some considerable difficulty in deciding how to deal with it fairly (and in accordance with the overriding objective in CPR1.1). It does seem to me that Mr Eblish at present is advancing revised particulars of claim which simply do not contain this claim at all, and that he would require permission from me to be able to effectively change his stance to be able to advance it.
- On the other hand, it does not seem to me that the defendant would be remotely surprised by his doing so, but rather that Mr Sheldon has been in a position to respond to the claim as he did in July and where the claim does appear in Mr Eblish's November skeleton argument.
- As far as the question of knowledge and foreseeability is concerned, I have the difficulties in dealing with it fairly as: firstly, Mr Eblish is reacting to a matter which he has had little time to think about; and, secondly, although I can well see why Mr Sheldon may be right both as to fact and even more importantly as to law as to foreseeability being a requirement in order for such a damages claim to be bought, it does not seem to me that I have been provided with the relevant authorities on the subject to be able to decide properly as to whether such a foreseeability requirement in fact would exist in the circumstances of this case (including where I have held that the claim for psychiatric injury has a real prospect of success).
- I have decided, having balanced the various elements of the overriding objective in my mind, and including the fact that, for the reasons I have already given, I am going to allow the psychiatric injury claim to go forward at least for the moment, to make an unless order that Mr Eblish (within a particular period of time) provides revised particulars of claim which incorporate any claim in relation to the property taken by the Libyan Security Services, and which set out whether or not he asserts that the British Security Services knew or should have foreseen that he had significant property in Libya and if so, why, and that if he does not comply with that order, he should be debarred from advancing a claim in relation to the property.
- That, it seems to me, is a fair way of dealing with the matter, balancing all the various overriding objective considerations. I might well have come to a different conclusion if I was not allowing a psychiatric injury claim to proceed, both as a result of applying the overriding objective and the question of limitation to which I will come in a moment, but it seems to me, particularly bearing in mind Mr Eblish's vulnerability and also the other circumstances that I have identified, that that is the appropriate way to deal with the matter.
- If the defendant decides on the basis of what is then advanced to renew the strike out or reverse summary judgment application, then they can do so at a point when the court can then consider those matters on a fully informed basis, knowing both what Mr Eblish's case actually is and having the benefit of whatever authorities are said to be in point.
- In coming to that conclusion, I have also considered the limitation aspect to which I now come. Mr Sheldon's third point is to the effect that the property claim is necessarily limitation barred. He draws my attention to section 14A and 14B of the Limitation Act 1980:
"14A Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.
(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.
(4) That period is either—
(a) six years from the date on which the cause of action accrued; or
(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.
(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both—
(a) of the material facts about the damage in respect of which damages are claimed; and
(b) of the other facts relevant to the current action mentioned in subsection (8) below.
(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) The other facts referred to in subsection (6)(b) above are—
(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
(b) the identity of the defendant; and
(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.
(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
14B Overriding time limit for negligence actions not involving personal injuries
(1) An action for damages for negligence, other than one to which section 11 of this Act applies, shall not be brought after the expiration of fifteen years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission—
(a) which is alleged to constitute negligence; and
(b) to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part).
(2) This section bars the right of action in a case to which subsection (1) above applies notwithstanding that—
(a) the cause of action has not yet accrued; or
(b) where section 14A of this Act applies to the action, the date which is for the purposes of that section the starting date for reckoning the period mentioned in subsection (4)(b) of that section has not yet occurred;
before the end of the period of limitation prescribed by this section."
- Mr Sheldon relies on section 2 of the 1980 Act to point out, firstly, that the general rule is that There it is provided, essentially, that claims in tort have to be brought within six years of the completion of the cause of action. On the claimant's case it seems to me that the cause of action was complete once initial damage had been suffered, which was probably in 2006 but possibly in 2007. Secondly, Mr Sheldon submits that where the claim is brought in negligence other than for personal injuries – and I leave the personal injuries aspect to one side at present but will revert to it below -- the claimant has a period of three years from gaining relevant knowledge about the relevant facts to bring the claim should that three year period expire after what would otherwise be the basic six year section 2 period. That is the effect of section 14A.
- Here, Mr Eblish faces the difficulty in relation to section 14A that, although he contends that he only learnt the facts in 2019, it may very well be -- although I cannot be sure on the evidence before me -- that the three years from when he learnt the relevant facts in 2019 expired at some point in 2022 before when he sought to issue the claim form in November 2022.
- However, even if that is wrong, Mr Eblish faces the difficulty of the overriding time limit for bringing negligence claims other than personal injury claims contained in section 14B of the act, which provides that there is an overriding 15 year limitation period and which runs from the date of the alleged negligence. That 15 year period is the longstop period even if the six year period under section 5 or the three-year period under section 14A has not yet expired.
- The relevant act of negligence is said to have occurred in 2005 and 2006, being the provision of the list by the British Security Services to the Libyan Security Services. Thus the longstop period expired 15 years from then being probably in 2020 or possibly in 2021. Therefore, in so far as the claim is bought simply in negligence for loss of property, at first sight the claim is simply limitation barred.
- Mr Sheldon however, rightly in my view, accepts, at least for the purposes of this hearing, that where a claim for personal injury is also being brought and is not being struck out, the limitation position is actually governed by different sections, namely sections 11 and 33 of the Limitation Act 1980:
"11 Special time limit for actions in respect of personal injuries.
(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person…
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the M1Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from:
(a)the date of death; or
(b)the date of the personal representative's knowledge; whichever is the later.
(6) For the purposes of this section "personal representative" includes any person who is or has been a personal representative of the deceased, including an executor who has not proved the will (whether or not he has renounced probate) but not anyone appointed only as a special personal representative in relation to settled land; and regard shall be had to any knowledge acquired by any such person while a personal representative or previously.
(7) If there is more than one personal representative, and their dates of knowledge are different, subsection (5)(b) above shall be read as referring to the earliest of those dates.
33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which:
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action or shall not apply to any specified cause of action to which the action relates…
(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11 , 11A(4) or 11B(2) or (4).
If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 by section 11A by section 11B or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) In a case where the person injured died when, because of section 11, 11A(4) or 11B(2) or (4), he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit…
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976…
(7) In this section—
"the court" means the court in which the action has been brought;…
"the section 11 relevant date" means the latest of the following:
(a) the date from which the period of three years starts to run in accordance with section 11(4) or (5);
(b) where section 28 applies, the date from which the period of three years mentioned in subsection (1) of that section (as that subsection has effect with the modification made by subsection (6) of that section) starts to run;
(c) where section 32(1)(a) or (b) applies, the date from which the period of three years starts to run in accordance with subsection (1) of that section;
"the section 12 relevant date" means the latest of the following:
(a) the date from which the period of three years starts to run in accordance with section 12(2);
(b) where section 28 applies, the date from which the period of three years mentioned in subsection (1) of that section (as that subsection has effect with the modification made by subsection (6) of that section) starts to run…."
- Section 11 provides for a three-year time period where the damages for negligence or breach of duty, "Consists of or include damages in respect of personal injuries to the claimant or any other person." That expression is defined in section 38(1) as, "Including any disease and any impairment of a person's physical or mental conditions" and so as to include psychiatric injury.
- Thus, all that is required for section 11 to apply to a claim is that one of the heads of loss for negligence or breach of duty is personal injuries. The case law (see e.g. Azaz v Denton 2009 EWHC 1759) holds therefore that if the alleged negligence is contended to give rise to both personal injuries for which damages are claimed, and other loss for which damages are also claimed, the overall claim -- that is to say for both types of loss – is governed by the personal injuries limitation provision and thus by section 11 and not by other sections such as sections 5, 14A and 14B.
- There is simply an overall single limitation period which is laid down by section 11 to be three years from when the injured person gained the relevant knowledge.
- At first sight, that three year period may have expired prior to the issue of the claim form, since the claimant says that he learnt of the relevant facts in 2019 and the claim form was actually issued in January 2023, although it is possible that the date of issue for limitation period perhaps might be treated as being November 2022 when the claim form was said to have been supplied to the court.
- However, even if this claim was only brought after the three year period, the claimant can seek a discretionary extension of the limitation period under section 33 of the Limitation Act 1980. That is a discretion which is often exercised, although it all depends on the particular facts and matters relied upon and in particular those which relate to the matter set out in section 33(3).
- Mr Sheldon accepts, rightly in my judgment, that the court at this hearing is unable to take a view either as to whether an extension of time would be granted at all, or as to whether that extension of time would be granted on a basis which would permit the claim in relation to property to be brought as well as the claim in relation to personal injuries. I note that only some of the authorities result in an extension of time only being granted in relation to the personal injury claim and not also the property aspect of them (see e.g. the judgments of the Court of Appeal in Shade v Compton (unreported) 22 July 1999 referred to in McGee : Limitation Periods (9th Edn) paragraph 8.006).
- In those circumstances it seems to me that I simply cannot conclude that because of limitation reasons, the particulars of claim do not set out reasonable grounds or that the claim has no prospect of success. It does however seem to me that it would be highly desirable for the claimant to clarify when he says he learnt of the relevant facts in 2022 in order that the limitation position can be better clarified.
- I add that if I had decided in favour of the defendant in relation to the psychiatric injury aspect, that would have resulted in that aspect being struck out so that there was no longer a personal injuries negligence or breach of duty claim existing within the claim itself. In those circumstances, section 11 and section 33 would no longer be applicable.
- Mr Eblish however, submitted that even in those circumstances, he would not face that overpowering limitation difficulty because he would be able to rely on section 32 of the Limitation Act, contending that the security services had deliberately concealed what they had done and therefore, the material facts involved in it, and which facts, even with the exercise of reasonable diligence, he had only learnt in 2019:
"32 Postponement of limitation period in case of fraud, concealment or mistake.
(1) Subject to subsections (3), (4A) and (4B) below, where in the case of any action for which a period of limitation is prescribed by this Act, either:
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
(3) Nothing in this section shall enable any action—
(a) to recover, or recover the value of, any property; or
(b) to enforce any charge against, or set aside any transaction affecting, any property;
to be brought against the purchaser of the property or any person claiming through him in any case where the property has been purchased for valuable consideration by an innocent third party since the fraud or concealment or (as the case may be) the transaction in which the mistake was made took place.
(4) A purchaser is an innocent third party for the purposes of this section:
(a) in the case of fraud or concealment of any fact relevant to the plaintiff's right of action, if he was not a party to the fraud or (as the case may be) to the concealment of that fact and did not at the time of the purchase know or have reason to believe that the fraud or concealment had taken place; and
(b) in the case of mistake, if he did not at the time of the purchase know or have reason to believe that the mistake had been made.
(4A) Subsection (1) above shall not apply in relation to the time limit prescribed by section 11A(3) of this Act or in relation to that time limit as applied by virtue of section 12(1) of this Act.
(4B) Subsection (1) above shall not apply in relation to the time limit prescribed by section 11B(2) or (4) of this Act or in relation to that time limit as applied by virtue of section 12(1) of this Act.]
(5) Sections 14A and 14B of this Act shall not apply to any action to which subsection (1)(b) above applies (and accordingly the period of limitation referred to in that subsection, in any case to which either of those sections would otherwise apply, is the period applicable under section 2 of this Act).
- Mr Eblish contends that in those circumstances, he would have a new six year limitation period commencing in 2019 and therefore, his bringing of the claim in 2022/2023 would be well within time. As to this, Mr Sheldon draws my attention to paragraph 4(vi) of my July order and my requirements that if the claimant was to rely on section 32, he would have to had set out, in his revised particulars of claim, particular matters about what the basis of the alleged deliberate concealment was, and whether the assertion was that the security services had taken a decision simply to keep what they have done out of the public domain and so that it was not known by the world, or whether it was being asserted that there had been some deliberate decision not to tell the claimant what had happened and what had been done, and on either basis, what were the factual matters relied on to prove or infer that such a decision had been taken.
- The reason why I had included that particular provision was not merely a general one that Mr Eblish has to have set out what he is actually contending, but also because in the judgment of the Supreme Court in Canada Square Operations v Potter [2023] 3 WLR 263, which decision has been discussed at the July hearing, it was made clear that what is required for a "deliberate concealment" is a deliberate (as opposed to reckless) decision to conceal the relevant facts.
- Paragraph 109 of that judgment sets out the relevant principle:
"The elaborate and confusing analyses of section 32(1)(b) put forward in Williams, The Kriti Palm and the present case represent a wrong turning in the law. It should return to the clarity and simplicity of Lord Scott's authoritative explanation in Cave (para 60):
"A claimant who proposes to invoke section 32(1)(b) in order to defeat a Limitation Act defence must prove the facts necessary to bring the case within the paragraph. He can do so if he can show that some fact relevant to his right of action has been concealed from him either by a positive act of concealment or by a withholding of relevant information, but, in either case, with the intention of concealing the fact or facts in question."
What is required is (1) a fact relevant to the claimant's right of action, (2) the concealment of that fact from her by the defendant, either by a positive act of concealment or by a withholding of the relevant information, and (3) an intention on the part of the defendant to conceal the fact or facts in question."
- In that particular case it was held in paragraph 154 of the judgment that the terms of the section were satisfied because there had been a finding of fact that the relevant defendant in that case had taken a conscious decision to conceal the relevant information and facts from the relevant claimant.
- Mr Sheldon submitted that what was required was not only a deliberate decision to conceal, but a deliberate decision to conceal by reference to the individual claimant, rather than simply a decision to conceal from the world at large. He submitted that if the law was otherwise, the security services, who wish their activities generally to be outside of the public domain, would be thought to have deliberately concealed every single fact in every single circumstance simply as a matter of general policy and even if no thought had been given to any particular individual such as Mr Eblish.
- In any event, I required Mr Eblish to set out his case as above in the revised particulars of claim. However, as Mr Sheldon points out, there is no reference to deliberate concealment within the revised particulars of claim at all. I had further required all the relevant facts and matters relied on in these regards to be identified, since it seemed to me that that was required by reference to the general principles of pleading which I identified earlier in this judgment i.e. that where a person's alleged actual state of mind was to be relied upon, it is necessary to set out from what is said that that state of mind is to be inferred. Mr Sheldon draws my attention to the fact that those matters were not set out either in the revised particulars of claim.
- I have borne in mind that in the November documentation, Mr Eblish does actually make a reference to section 32 but only in very general terms of referring to, "The defendant's concealment of information related to the meeting." It does seem to me that Mr Sheldon is right to say that my order -- as far as Mr Eblish is advancing a case of deliberate concealment -- has not been complied with, either in the revised particulars of claim or subsequently.
- It seems to me that in so far as section 32 is in point with regards to this application, that I should simply proceed on the basis that Mr Eblish cannot rely on it. Mr Eblish has neither complied with the wording of my order, or its spirit, and has not advanced anything before me which would enable me to come to a conclusion that he could advance a deliberate concealment argument properly or would have a real prospect of success in doing so.
- However, for the reasons which I have already given regarding the existence of the claim for psychiatric injury and sections 11 and 33 of the 1980 Act, it seems to me that at this hearing the defendant's limitation arguments do not succeed.
- Nevertheless, my conclusion as to this section 32 aspect seems to me to have relevance for the future in two ways.
- Firstly, if my judgment today is successfully appealed by the defendant on the psychiatric injury point (so that an appeal court strikes out psychiatric injury case), it seems to me likely that the appeal court will also hold that what I have decided by reference to sections 11 and 33 of the Limitation Act are not in point and, therefore, that, even if the negligence claim would otherwise proceed, it will simply be defeated by the defendant's limitation arguments, and that Mr Eblish will not be able to rely on section 32 because of his non-compliance with the requirements of my order. That seems to me to be a possible permutation, and I say no more about it because it is a matter for the appeal court and not for me.
- Secondly, although I am deciding that Mr Eblish has not complied with my order for the purposes of this hearing and application, and although this statement is only provisional, as I have not heard argument on it, it does seem to me that it is likely that Mr Eblish would still be able to advance section 32 if the claim proceeds for the following reasons.
- My order was made for the purposes of this particular hearing and application. The ordinary position in regard to limitation is that, if the claim is not struck out, there is no reverse summary judgment granted at this point. Rather it would then be for the defendant to produce a defence which advanced limitation and Mr Eblish would ordinarily be able to rely on, a properly pleaded case on, section 32 in reply. However, I am not deciding that particular procedural matter because I have not heard argument on it (and it may well be that Mr Sheldon would wish to submit to me that the aforesaid is wrong).
- For all those reasons, therefore, it seems to me that I should allow the negligence arguments to continue at this point, but subject to the unless order with regards to the property aspect which I have referred to earlier in this judgment.
- I next come to the human rights arguments. Here, the revised particulars of claim assert that what has occurred involves violations of the claimant's human rights under article 2 right to life, article 3 prohibition of torture and article 8, right to private and family life of the Human Rights Convention.
- Mr Sheldon contends that they should be struck out, or that the defendant should be granted reverse summary judgment, on three grounds. Firstly, relating to the jurisdiction of The Investigatory Powers Tribunal. Secondly, on the basis of the time limit for bringing proceedings contained in the Human Rights Act; and, thirdly, by way of a general attack on the merits of the claims.
- He relies firstly on section 65 of the Regulation of Investigatory Powers Act 2000. This section refers to section 7 of the Humans Right Act 1998:
"7 Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may:
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of:
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes—
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
(8) Nothing in this Act creates a criminal offence.
(9) In this section "rules" means—
(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court,
(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland—
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force, rules made by a Northern Ireland department for those purposes, and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.
(10) In making rules, regard must be had to section 9.
(11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to:
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.
(13) "The Minister" includes the Northern Ireland department concerned."
- Mr Sheldon points out that what the claimant is seeking to do is to bring a claim against a public authority under section 7(1)(a) and as a victim of alleged unlawful acts, and Mr Sheldon emphasis that section 7(1)(a) requires the proceedings to be brought, "In the appropriate court of tribunal."
- Mr Sheldon then draws my attention to section 65 of the 2000 Act:
"65 The Tribunal
(1) There shall, for the purpose of exercising the jurisdiction conferred on them by this section, be a tribunal consisting of such number of members as Her Majesty may by Letters Patent appoint.
(2) The jurisdiction of the Tribunal shall be:
(a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section;
(b) to consider and determine any complaints made to them which, in accordance with subsection (4), are complaints for which the Tribunal is the appropriate forum;
(ba) to consider and determine any complaints made to them which, in accordance with subsection (4AA), are complaints for which the Tribunal is the appropriate forum;
(c) to consider and determine any reference to them by any person that he has suffered detriment as a consequence of any prohibition or restriction, by virtue of section 56 of the Investigatory Powers Act 2016, on his relying in, or for the purposes of, any civil proceedings on any matter; and
(d) to hear and determine any other such proceedings falling within subsection (3) as may be allocated to them in accordance with provision made by the Secretary of State by order.
(3) Proceedings fall within this subsection if:
(a) they are proceedings against any of the intelligence services;
(b) they are proceedings against any other person in respect of any conduct, proposed conduct, by or on behalf of any of those services;
(c) they are proceedings brought by virtue of section 55(4),
(d) they are proceedings relating to the taking place in any challengeable circumstances of any conduct falling within subsection (5).
(4) The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within subsection (5) which he believes:
(a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunications service or telecommunication system; and
(b) to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services.
(4AA) The Tribunal is the appropriate forum for a complaint if it is a complaint by an individual about a relevant personal data breach.
(4AB) In subsection (4AA) "relevant personal data breach" means a personal data breach that the individual is informed of under section 235A(5) of the Investigatory Powers Act 2016 (serious personal data breaches).
(5) Subject to subsection (6), conduct falls within this subsection if (whenever it occurred) it is:
(a) conduct by or on behalf of any of the intelligence services;
(b) conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system;
(ba) conduct for or in connection with the obtaining of secondary data from communications transmitted by means of such a service or system;
(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);
(c) conduct of a kind which may be permitted or required by an authorisation or notice under Part 3 of that Act or a warrant under Chapter 2 of Part 6 of that Act (acquisition of communications data);
(cza) the giving of an authorisation or notice under Part 3 of that Act or the issue, modification, renewal or service of a warrant under Chapter 2 of Part 6 of that Act;
(czb) conduct of a kind which may be required or permitted by a retention notice under Part 4 of that Act (retention of communications data) but excluding any conduct which is subject to review by the Information Commissioner;
(czc) the giving or varying of a retention notice under that Part of that Act;
(czd) conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);
(cze) the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;
(czf) the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);
(czg) the giving of an authorisation under section 219(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);
(czh) the giving or varying of a direction under section 225 of that Act (directions where no bulk personal dataset warrant required);
(czha) the granting or renewal of an authorisation under Part 7A of that Act (low or no expectation of privacy bulk personal datasets);
(czhb) the issue, renewal or service of a warrant under Part 7B of that Act (third party bulk personal datasets);
(czi) conduct of a kind which may be required by a notice under section 252 or 253 of that Act (national security or technical capability notices);
(czj) the giving or varying of such a notice;
(czk) the giving of an authorisation under section 152(5)(c) or 193(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);
(czl) any failure to:
(i) cancel a warrant under Part 2, 5, 6, 7 or 7B of that Act or an authorisation under Part 3 or 7A of that Act;
(ii) cancel a notice under Part 3 of that Act;
(iii) revoke a notice under Part 4, or section 252 or 253, of that Act; or
(iv) revoke a direction under section 225 of that Act;
(czm) any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);
(ca) the carrying out of surveillance by a foreign police or customs officer (within the meaning of section 76A);
(d) other conduct to which Part II applies;
(e) the giving of a notice under section 49 or any disclosure or use of a key to protected information;
(f) any entry on or interference with property or any interference with wireless telegraphy.
(6) For the purposes only of subsection (3), nothing mentioned in paragraph (d) or (f) of subsection (5) shall be treated as falling within that subsection unless it is conduct by or on behalf of an immigration officer or a person holding any office, rank or position with:
(a) any of the intelligence services;
(b) any of Her Majesty's forces;
(c) any police force;
(cza) the Service Police Complaints Commissioner;
(ca) the Police Investigations and Review Commissioner;
(d) the National Crime Agency;
(dza) the Competition and Markets Authority;
(f) the Commissioners for Her Majesty's Revenue and Customs;
and section 48(5) applies for the purposes of this subsection as it applies for the purposes of Part II.
(6A) Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.
(7) For the purposes of this section conduct takes place in challengeable circumstances if it is conduct of a public authority and:
(a) it takes place with the authority, or purported authority, of anything falling within subsection (8); or
(b) the circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it, or at least without proper consideration having been given to whether such authority should be sought;
but subject to subsection (7ZA), conduct does not take place in challengeable circumstances to the extent that it is authorised by, or takes place with the permission of, a judicial authority.
(7ZA) The exception in subsection (7) so far as conduct is authorised by, or takes place with the permission of, a judicial authority does not include conduct authorised by an approval given by a Judicial Commissioner or under section 32A of this Act or section 75 of the Investigatory Powers Act 2016.
(7ZB) For the purposes of this section conduct also takes place in challengeable circumstances if it is, or purports to be, conduct falling within subsection (5)(bb), (cza), (czc), (cze), (czf), (czg), (czh), (czha), (czhb), (czj), (czk) or (czl) or (so far as the conduct is, or purports to be, the giving of a notice under section 49) subsection (5)(e).
(7A) For the purposes of this section conduct also takes place in challengeable circumstances if it takes place, or purports to take place, under section 76A.
(8) The following fall within this subsection:
(a) a warrant under Part 2, 5, 6 , 7 or 7B of the Investigatory Powers Act 2016;
(b) an authorisation or notice under Part 3 of that Act;
(ba) a retention notice under Part 4 of that Act;
(bb) a direction under section 225 of that Act;
(bba) an authorisation under Part 7A of that Act;
(bc) a notice under section 252 or 253 of that Act;
(c) an authorisation under Part II of this Act or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part;
(d) a permission for the purposes of Schedule 2 to this Act;
(e) a notice under section 49 of this Act; or
(f) an authorisation under section 93 of the Police Act 1997.
(9) Schedule 3 (which makes further provision in relation to the Tribunal) shall have effect.
(9A) In subsection (5)(ba) the reference to obtaining secondary data from communications transmitted by means of a postal service or telecommunication system is to be read in accordance with section 16 of the Investigatory Powers Act 2016.
(10) In this section:
(a) references to a key and to protected information shall be construed in accordance with section 56;
(b) references to the disclosure or use of a key to protected information taking place in relation to a person are references to such a disclosure or use taking place in a case in which that person has had possession of the key or of the protected information; and
(c) references to the disclosure of a key to protected information include references to the making of any disclosure in an intelligible form (within the meaning of section 56) of protected information by a person who is or has been in possession of the key to that information; and the reference in paragraph (b) to a person's having possession of a key or of protected information shall be construed in accordance with section 56.
(11) In this section "judicial authority" means:
(a) any judge of the High Court or of the Crown Court or any Circuit Judge;
(b) any judge of the High Court of Justiciary or any sheriff;
(c) any justice of the peace;
(d) any county court judge or resident magistrate in Northern Ireland;
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.
- Section 5(1) provides for the creation of the Investigatory Powers Tribunal. Mr Sheldon relies on the section 65(2)(a) provision that:
"The jurisdiction of the Tribunal shall be (a) to be the only appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to any proceedings under subsection (1)(a) of that section (proceedings for actions incompatible with Convention rights) which fall within subsection (3) of this section."
- Section 65(3) provides that proceedings fall within that subsection if there are proceedings against any of the intelligence services or against anyone else in relation to conduct of the intelligence services. Mr Sheldon has referred me to section 81(1) the definition section of the act which includes the provision that, ""intelligence service" means the Security Service, the Secret Intelligence Service or GCHQ."
- Mr Sheldon submits and the claimant I think accepts that, and in any event it is my view that, it is correct that this claim is being brought in relation to the conduct of the intelligence services for the purposes of the 2000 Act, and therefore, that these proceedings fall within section 65(3) of the 2000 Act, and therefore are potentially proceedings which fall within the ambit of section 65(2)(a).
- In those circumstances, Mr Sheldon submits that the human rights (section 7(1)(a) f of the 1998 Act) element of these proceedings has to be brought in The Investigatory Powers Tribunal and not in this court. It does not seem to me that the claimant really sought to contest that. Nonetheless, particularly since I obviously do not know whether The Investigatory Powers Tribunal itself accept that proposition and the claimant is a litigant in person, I have sought to consider this particular point.
- Mr Sheldon has reminded me that section 7(1)(a) of the1998 Act provides that proceedings must be brought in "the appropriate court or tribunal" and that section 7(2) provides that "(2) In subsection (1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules… "
- At first glance, it seems clear that section 65(2)(a) of the 2000 Act provides that The Investigatory Powers Tribunal is the relevant tribunal, indeed it uses the words, "The only appropriate tribunal."
- I do note that section 7(2) of the 1998 Act refers to "rules" (which are further defined by section 7(9)(a) to refer to either rules made by the Secretary of State or "rules of court") and not to the possibility of another statute defining what is "the appropriate court or tribunal" but as to that, I consider, that the 2000 Act post-dates the 1998 Act and section 65(2)(a) of the 2000 Act must be regarded as the expression of Parliament's will as to what should happen in the section 65(3) circumstances.
- The one matter which has concerned me is that whether the reference in section 65(2)(a) is only to and is limited only to tribunals, so as to say that The Investigatory Powers Tribunal is the only tribunal which can deal with relevant proceedings, and not other tribunals such as the employment tribunal e.g. should there be a dispute between the employee or member of the security services and the security services body itself and so that such that the claim has to be brought in The Investigatory Powers Tribunal; Or whether it extends to any relevant claim under section 7(1)(a) of the 1998 Act, such that the claim cannot be brought in either a court or a tribunal other than by proceedings in The Investigatory Powers Tribunal. Mr Sheldon submits that the latter construction is correct.
- It seems to me, as with all questions of statutory construction that I need to consider what would be the proper reasonable reading of the words, taking into account all the words of the various statutes and the intended statutory purposes in order to come to an appropriate conclusion as a matter of construction, considering the various possible constructions together on an holistic iterative basis, rather than merely rejecting one construction and being left with another as a default outcome.
- I have sought to carry out that process and it seems to me that Mr Sheldon is right. Although on one technical approach, the actual words of section 65(2)(a), "Only appropriate tribunal" are ambiguous as to whether it means that The Investigatory Powers Tribunal is simply the sole tribunal for the tribunal systems purposes, rather than also being the sole resolving body for both court and tribunal systems purposes; it does seem to me that both the thrust of the wording and statutory purposes should lead me to the conclusion that it is the sole body to decide these matters.
- That is in particular for the following reasonings. Firstly, as Mr Sheldon points out ,section 65(2)(a) at first sight reads to be directed towards The Investigatory Powers Tribunal being the relevant entity that decides section 7(1)(a) of the 1998 Act claims relating to the security services. That it seems to me is the general thrust of the wording and provision, and strongly indicative of the statutory purposes. Secondly, it seems to me that that interpretation makes perfect sense. Parliament has created a particular specialist body (The Investigatory Powers Tribunal is) to deal with this sort of matter. It would seem odd for the court system had an equal concomitant jurisdiction with that of The Investigatory Powers Tribunal, when the latter is the specialist body specifically tasked with dealing with human rights claims against the security services.
- Thirdly, the wording in section 7(1)(a) of, "Appropriate court or tribunal" seems to me to be most directed towards the wording of section 7(2), carried on by section 7(9), which provides for the matter to be dealt with by rules i.e. rules made as a matter of subordinate legislation. That at first sight seems a perfectly logical provision where court rules will deal with procedures within the court system, including the allocation of particular cases to particular courts.
- However, section 65 of the 2000 Act is outwith those provisions. Section 65 is primary legislation, a freestanding statute in its own right, in a statute which post-dates the 1998 Act and specifically refers to it. It seems to me that the statutory purposes of section 65 is to provide the cases of this particular nature are to be dealt with by The Investigatory Powers Tribunal and its particular statute, rather than being left to the ordinary courts of being allocated within the court or tribunal system by specific rules of court, or in some circumstances, tribunal rules or rules made by the Secretary of State.
- Standing back and looking at the matter generally on the basis of both the words and the overall statutory purposes, it seems to me that the correct construction is that which Mr Sheldon contends. On that basis, The Investigatory Powers Tribunal has exclusive jurisdiction, which it seems to me follows from the words, "Only appropriate" in section 65(2)(a), and it seems to me that the human rights claims are simply for the Investigatory Powers Tribunal and not for the courts.
- On the basis, it seems to me that bringing the human rights claim by claim in the courts is an abuse of process within the meaning of CPR 3.4.2(b) and that that elements of these claims should simply be struck out on that basis. There is an alternative which I will canvas with the parties following this judgment as to whether, bearing in mind that it is technically possible that the tribunal would not take the same view, I ought to postpone the strike-out until say the claimant has initiated a claim in the tribunal and it has accepted jurisdiction (whatever might be its position regarding the time which has elapsed and other matters which I mention briefly below). However, subject to that possibility, it seems to me that the human rights claim is not for the court and therefore should be removed from these proceedings.
- In light of that, it does not seem to me technically that I need to deal with Mr Sheldon's other arguments. I will however mention them briefly them for the purposes of completeness.
- Firstly, Mr Sheldon points to section 7(5) of the 1998 Act and the fact that proceedings under section 7(1)(a) must be brought before the end of the period of one year beginning of the date on which the act complained of took place, subject to the court or tribunal being able to allow a longer period, if it considers that equitable having regard to all the circumstances.
- Mr Sheldon points out, rightly in my view and as I think the claimant accepts, that the relevant act is said to have occurred in 2005 and therefore, the period of one year expired a long time before the issue of a claim form. Mr Sheldon submitted to me that in the particular circumstances it was at best extremely unlikely, and potentially inconceivable, that an extension would be granted sufficient to commit the claimant to prosecute this claim in the circumstances of this case.
- He drew my attention to Rabone v Pennine [2012] UKSC 2., where a claim had been brought four months out of time and the relevant defendant had in fact encouraged the claimant not to bring the claim earlier, and while the extension was granted, the fact that the delay was only four months was emphasised; see paragraphs 73 to 79 of the decision, including in particular what was set out in paragraph 75 where it was said there that the discretion is a freestanding one and where it was said that, although points also relevant to section 33(3) of the Limitation Act 1980 would be potentially relevant, the exercise was a different one than that which is provided for under the 1980 Act:
"73. Section 7(5) of the HRA provides that proceedings under section 7(1)(a) (a claim that a public authority has acted in a way which is incompatible with a Convention right) must be brought "before the end of (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the
circumstances".
74. Melanie died on 20 April 2005. Proceedings were issued on 11 August 2006, almost four months after the expiry of the one year limitation period. The question that arises, therefore, is whether it was equitable to extend the one year period by almost four months having regard to all the circumstances.
75. The relevant principles are not in dispute. The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board [2009] 1 WLR 728, paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.
76. The judge expressed his final conclusion on the limitation issue at para 131:
"However, in my judgment, the decisive factor is that, at this stage of
the trial process, I am in a position to conclude that there is no merit
in the claims to which this issue is relevant. In addition, the contents For these reasons, he refused to extend time. The Court of Appeal agreed that the fact that the claim was doomed to failure was "the decisive factor".
They said that, if the claim were otherwise well-founded, they would have been inclined to extend time.
77. In the light of my conclusions on the earlier issues in the case, I would reject the premise on which the judge and the Court of Appeal exercised the section 7(5)(b) discretion. It follows that I must exercise the discretion afresh. The extension of time that is sought is less than four months. There is no suggestion that the evidence has become less cogent as a result of the delay in issuing the proceedings or that the trust have been prejudiced in any other way by the delay. Mr and Mrs Rabone made a formal complaint within five months of Melanie's death. They were advised that their complaint would be "put on hold"
until an internal investigation had been completed. Their evidence to the judge was that they believed that the trust would produce a "reasonably prompt report" providing a proper explanation about the decision to allow Melanie to have home leave: see per Simon J at para 129. They said that their waiting for the report was a material factor in their decision not to issue proceedings. As the judge found, if the investigation which began in September 2005 had produced a reasonably prompt report, they might have issued proceedings sooner. The investigation report was not in fact sent to them until 16 March 2007.
78. A number of points are made on behalf of the trust. First, a claim could have been brought at the time of the formal letter of complaint on 31 August 2005. Secondly, Mr and Mrs Rabone accepted that, in the year following the death, they were aware in general terms of the HRA and the possibility of bringing a legal claim. Even then, they did not seek legal advice, but only proceeded with a claim after a discussion with a friend in June or July 2006. Thirdly, they could not have
been waiting for the trust's final investigation report, because, in the event, they issued proceedings before a copy of it was sent to them.
79. I accept that Mr and Mrs Rabone could have issued proceedings within the one year period. But in my view they acted reasonably in not issuing proceedings, rather than waiting for the report (as they were encouraged by the trust to do). The strength of this point is not undermined by the fact that, in the end, they felt that the delay in publishing the report to them was so great that they could wait no longer and decided to issue proceedings before seeing it. In summary, the points which strongly militate in favour of granting the extension of time are that the required extension is short; the trust have suffered no prejudice by the delay in the issue of the proceedings; Mr and Mrs Rabone acted reasonably in holding off proceedings in the hope that the report might obviate the need for them; and (most important of all) they have a good claim for breach of article 2. I would, therefore, grant the necessary extension of time."
- The claimant submits that he would have obtained an extension of time on the basis that he did not know what the underlying facts were, and through no fault of his own, until 2019; and that the delay after that was not that long, and would not in any event have prejudiced the evidence and material to be relied on in relation to the claim.
- That it seems to me is all extremely fact sensitive and case specific, and I simply do not have the material before me at present to come to a particular view, although it does seem to me at first sight that the claimant could face a distinctive uphill battle, bearing in mind both the general lapse of time, even if he is not at fault, and the seemingly three years which expired after 2019.
- However, it does not seem to me, where I am in any event terminating this claim within the court system at this point, that it would be right for me to say any more or indeed that I would be in a position to do so on the limited material which I have before me.
- Mr Sheldon's second submission was that in any event, the merits were weak. He submitted that neither the article 2 or the article 3 claim could succeed, because the claimant is not a victim within the meaning of the human rights legislation, in circumstances where his brothers and friends were not killed by the Libyan Security Services or the Egyptian Security Services, but merely arrested, assaulted and/or humiliated.
- He drew my attention to the Court of Appeal's decision in Reprieve v The Prime Minister [2021] EWCA Civ 972 and the discussion at paragraphs 36 to 47 where the Court of Appeal appeared to limit claims under articles 2 and 3 to either those who themselves had been injured or tortured, or to their dependants in circumstances where they had been killed:
"36. The central question is whether the claim, relying as it does on article 3 of the Convention, will determine the civil rights of these claimants. The prior question is whether the claimants can rely upon article 3 in these judicial review proceedings. To do so the claimants must show that they are "victims" for the purposes of article 34 of the Convention. We shall return to whether the public law Wednesbury challenge determines a civil right.
37. These proceedings have been brought in the public interest, rather than to vindicate the personal interests of Reprieve or the two claimant Members of Parliament. Are they nonetheless victims as that word is interpreted by the Strasbourg Court?
38. The claimants suggest that any decision by a court in a claim relying on Convention rights necessarily amounts to a determination of the civil rights of the party who relies on them. Therefore, they submit that it follows that any decision on their claim will amount to a determination of their civil rights.
39. Convention rights are not free-floating entities which are available to and enforceable by anyone who disagrees with a decision of a public authority on the grounds that it breaches, or may breach, somebody's Convention rights. Convention rights have effect in the law of England and Wales to the extent provided for by the 1998 Act. Therefore, the starting point is not article 3, or article 6(1), but that Act. The claimants' case is that the Prime Minister breached section 6(1) of the 1998 Act in deciding not to hold a judicial inquiry, thereby failing to comply with the positive investigative obligation imposed by article 3. The effect of section 7(1) and (7) of the 1998 Act is that a person can bring a claim founded on a Convention right, and only has standing in an application for judicial review, "if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the [Strasbourg Court] in respect of that act". The clear purpose of section 7 of the 1998 Act is to permit, and only to permit, a victim to litigate an alleged breach of Convention rights. It is only if the litigant is a victim that the Convention right in question can arguably be a "civil right" of his for the purposes of article 6(1).
40. There are two broad groups of cases in which the Strasbourg Court has decided that a person who does not allege, or cannot show, that he himself has directly suffered a breach of a Convention right can nevertheless bring a claim in Strasbourg.
41. The first group of cases concerns secret surveillance. The context of the most recent case to which we were referred, Zakharov, was possible interception of mobile telephone communications by the Russian state. The applicant could not show that his communications had been intercepted. Instead he claimed that the relevant legislation itself, rather than a specific interception of his communications, was an interference with his article 8 rights. In para 164 of its judgment, the Strasbourg Court noted that the Convention does not provide for an actio popularis. In general, its task is not to review legislation in the abstract, but to decide whether laws which were applied to the applicant violated the Convention. A person must be able to show that he is 'directly affected' by the measure complained of. This was indispensable but was not to be applied in a mechanical way. The Strasbourg Court then reviewed the cases about secret surveillance. In paras 171-172, it clarified the circumstances in which an applicant "can claim to be the victim of a violation of article 8 without having to prove that a secret surveillance measure had in fact been applied to him". Before an applicant would be able to claim that the mere existence of secret surveillance measures made him a victim for the purposes of article 34, the court would take into account the scope of the relevant legislation and the availability of safeguards at national level. It held that Russian law was defective in some respects and gave rise to the risk of arbitrary conduct. The law did not provide for adequate judicial supervision and safeguards against abuse. This was a breach of article 8 which directly affected the applicant so that he should be treated as a victim.
42. This line of cases provides no analogy with the circumstances of this claim.
43. The second group of cases includes three broad types: (a) direct victims who have died in circumstances which engage article 2 (the right to life) in which others, such as their close relatives, can bring a claim; (b) applicants who have raised complaints of breaches of other articles of the Convention but who have died during proceedings; and (c) claims brought by a representative organisation on behalf of actual or likely victims (such as Lizarraga).
44. Mr Jaffey relied most strongly on Campeanu. Even the title of the case is instructive. The applicant was the Centre for Legal Resources on behalf of Valentin Campeanu pursuing a discrete claim on behalf of an individual. This decision is not authority for any general principle; and certainly not for a principle that, to make the Convention effective, a person who cannot point to any violation of his own rights should nevertheless qualify as a victim where none has come forward, or can be identified, but there is some evidence that there might be possible victims somewhere in the world. As the Strasbourg Court itself recognised, Campeanu was an exceptional case. Mr Campeanu was a victim of apparent, and documented, breaches of article 3. He lacked the capacity to make a claim for himself while he was alive. He had then died. The state had breached its obligation to appoint a person to represent his interests while he was alive. The applicant organisation had contact with the victim while he was alive and had then acted on his behalf in domestic proceedings without objection from the Romanian authorities. It had been recognised as his de facto representative. This decision of the Strasbourg Court does not establish that were the claimants to make an application relying on the investigative obligation under article 3, it would recognise them as victims for the purposes of article 34 of the Convention.
45. A person who is alive and who has suffered article 3 ill treatment knows what he has suffered. He might not know who inflicted that treatment. At most, such a person might be able to rely, by analogy, on the surveillance cases, to argue against a contracting state, or several contracting states, that he is a victim but does not know who the perpetrator was. There is no guarantee that the Strasbourg Court would recognise such a speculative claim. But that potential claim, by a direct victim of ill treatment, is stronger than the claimants' case. They have not suffered ill treatment arguably prohibited by article 3. They do not represent a person unable to speak for himself who has.
46. To recognise the claimants as victims of an alleged violation of the procedural obligation under article 3 in this case would mark a significant development of the Strasbourg case law and, as such, is not a step that a domestic court should take. That said, we do not consider it likely that the Strasbourg Court would recognise these claimants as victims of any violation of article 3. To do so would introduce a right of private individuals and organisations to bring claims in the public interest, something that the court has set its face against save in very limited circumstances.
47. We conclude that the claimants are not victims of any violation of article 3 for the purposes of article 34 of the Convention. The effect of section 7(1) of the 1998 Act is that they cannot bring a claim that the Prime Minister has acted in way which is made unlawful by section 6(1). Moreover, the effect of section 7(3) is that, in so far as the judicial review claim rests on such an allegation (by not complying with the investigative obligation imposed by article 3) the claimants do not have standing to bring that claim."
- As far as the article 8 claim is concerned, Mr Sheldon submitted that there was no applicable authority which would support the claimant having an article 8 claim; and that, in any event, the claimant had not set out material which would really justify the advancing of a claim that the security services have acted so as to interfere with his family life, and all the more so where the interference was by a foreign state operating within the confines of its own jurisdiction or another foreign state's jurisdiction and not in any way within this jurisdiction.
- It did not seem to me to be sensible to spend much time seeking the claimant's submissions in relation to these aspects where, in any event, it is for The Investigatory Powers Tribunal to deal with such claim if the claimant seeks to bring it there, and so I merely comment briefly as follows.
- It does seem to me that there may well be substantial force in Mr Sheldon's various points, in particular with regards to articles 2 and 3 of the convention where, at first sight, the claimant's claim appears to be inconsistent with the Court of Appeal analysis of who is a victim who can bring a claim under those articles, as set out in the Reprieve case.
- It further seemed to me that the level of pleading by the Claimant of relevant facts for the purposes of article 8 did not fully engage with article 8 itself, or as to why it is said there has been an interference with family life within the meaning of the Human Rights Act; and also that there had been no engagement as yet with the jurisdictional aspects of the matter and as to how the security services have said to infer with the claimant's family life in a jurisdiction which was subject to the Human Rights Act.
- Nonetheless, it does not seem to me that those points have been explored as fully as they might be. In circumstances where I do not regard this as being a relevant claim to be dealt with in the court's system, it does not seem to me that I should go any further as far as those aspects are concerned. I will leave the matter to The Investigatory Powers Tribunal should the claimant decide to seek to bring a claim there.
- The next element of the claim to consider is the claimant's allegations that he has a claim with misfeasance in public office against the defendant as an effective representative of the security services. That claim was also canvassed in some detail in the July hearing, including the questions as to what unlawfulness was said to have occurred, and what states of mind were said to have existed in the mind of relevant security services personnel which were relied on by the claimant and which he was asserting he could justify in accordance with the rules of pleading.
- In paragraph 4(e)(ii) of the July order, I set out specifically that the claimant was to set out in his revised particulars of claim his allegations of unlawfulness, including what was said to be unlawful and why, and his allegations of intention and mental state with regards to this part of the claim. I further made specific reference to paragraph 4(b) and 4(c) of the order which set out what I was requiring to be stated with regard to intention and mental state; and also to paragraph 4(d) which required the claimant to set out what was relied upon to be said to cause a court at trial to infer that the relevant mental state existed. Those paragraphs of the order were intended to and, in my judgment, do, follow the rules and case law which I cited earlier as to how such allegations are required to be in pleaded.
- In the revised particulars of claim under the misfeasance of public office section, the claimant first stated that there was an abuse of public office by the security services, "Acting recklessly in providing the claimant's name to the Libyan authorities. They were either aware of reckless as to the real risk of harm that this action posed to the claimant and his family." Under a heading of intent or recklessness, what was stated was, "The claimant alleges that the British Security Services acted either with the intent to cause harm or with reckless disregard with the consequences of their actions. The conduct exhibited clear misfeasance in public office."
- Nothing further was said as to what was the precise nature of the intention or recklessness, or as to any facts of the matters which were relied upon for a court to infer the relevant mental state existed. Also nothing further was set out with regards to why it was said that the conduct of the security services was unlawful.
- In the final document of 8 November 2024, the claimant did refer for to these matters, and stated that the security services acted with the improper motives of specifically intending to cause harm to the claimant and his family, and alternatively, the security services acted with reckless disregard knowing that their actions would likely harm the claimant or his family. There was also an assertion that the action of the security services providing the claimant's name to the Libyan authorities and labelling him as a person with interest in terrorism, was an action conducted without lawful authority and was either malicious or recklessly indifferent to the consequences on the claimant's family in Libya.
- In the previous document dated 5 November, it was stated within this part of the claim, "By disclosing the claimant's identity without doing verification, the defendant knowingly or recklessly disregarded the risks of severe harm" and, "Its reckless indifference to the likelihood of harm from Libyan authorities is actionable." This was in the context of it being stated further in the negligence section that the conduct had been negligent, "Given the known practices of the Libyan security apparatus."
- Mr Sheldon submits that this is all entirely insufficient to advance a proper claim for misfeasance in public office. As far as the law is concerned, he has drawn my attention to Clerk & Lindsell on Torts (24th edn) starting at section 13-130:
"13-130 Introduction
The tort of misfeasance in public office originated in the electoral corruption cases of the late seventeenth century,707 was expanded in the 19th century to cover the liability of judges of inferior courts for malicious acts within their jurisdiction,708 and has now been authoritatively defined in the speech of Lord Steyn in Three Rivers DC v Bank of England (No.3).709 Lord Steyn explained that there were two different forms or limbs of the tort:
"First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."710 …that, if conduct is lawful apart from the motive, a bad motive will not make [the defendant] liable."711"
The first form is referred to as "targeted malice" and the second as the "untargeted malice" or "illegality" limb. It can be classed as an "intentional tort" but the key element is an intention to act for an improper motive. Its rationale, according to Lord Steyn, is that "in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior or improper purposes" and hence, it was an exception to "the general rule.
169. Mr Sheldon points to a difference between the two types of misfeasance in public office:
a. The first being "targeted malice", that is performing an act with a specific intention to injure the claimant, and thus performing it in bad faith because of the public office power having been exercised for an improper or ulterior motive, and
b. The second being "untargeted malice" where the public officer acts knowing (including being reckless as to whether or not that is the case) that they have no power to do the relevant act and that performing the act will probably injure the claimant.
- With regards to targeted malice, he took me further to the further explanation of it in section 13-131 of Clerk & Lindsell:
"13-131 Targeted malice The difficulty of establishing liability under this limb is illustrated by Jones v Swansea City Council.712 Jones alleged that the Council was liable for misfeasance in public office in maliciously voting for a resolution rescinding consent for a change in the use of commercial premises that he leased from the Council. He claimed that the malice stemmed from the personal antipathy of the leader of the Labour group which had infected all the other members of the group who voted as a block for the resolution. At first instance, the judge said that the evidence of the leader did not establish that he was "not motivated by malice", but concluded that despite the grounds for suspicion, malice had not been established on the balance of probabilities and that his motive was about "having his own way".
In the Court of Appeal, Slade LJ was dissatisfied with this finding and prepared to set it aside, but giving the leading speech in a unanimous House of Lords, Lord Lowry accepted the judge's finding commenting that the events had to be understood in the context of a council "divided by political animosity". The House went on to hold that even if malice were established on the part of the leader, the claimant's claim failed because it alleged that the council was liable for the tort because all the members of the Labour group were infected by the alleged malice and on the evidence this was clearly not the case.713
Again, in Calveley v Chief Constable of the Merseyside Police,714 the House of Lords rejected the claimant's argument that his suspension pending disciplinary investigation was a misfeasance on the ground that there was no evidence that the Chief Constable had acted with malice when suspending him. One rare example of targeted malice is provided by the Canadian case of Roncarelli v Duplessis715 where the Prime Minister of Quebec ordered a licensing commission to revoke the claimant's liquor license as part of a sustained campaign against his church, the Jehovah's Witnesses. The existence of targeted malice does not remove the need to show material damage to the claimant.
In Watkins v Secretary of State for the Home Department716 Lord Walker said:
"Some cases of 'targeted' malice are very clear, such as the early Canadian case of Roncarelli v Duplessis [1959] SCR 121 (discussed by the Supreme Court of Canada in Odhavji Estate v Woodhouse [2003] SCC 69 at [19]). But the weight of authority is against treating targeted malice as being in a special category, rather than as being at the brightest end of a spectrum (see Odhavji at [22] and the decision of this House in Three Rivers District Council v Governor and Company of the Bank of England [2003] 2 AC 1 at pp.191–192 (Lord Steyn), 219–223 (Lord Hutton), 230–231 (Lord Hobhouse) and 235 (Lord Millett who expressed most strongly the view that there is a single tort of intention). A rule that the targeted malice limb (only) of the tort is actionable without proof of special damage would therefore be unprincipled and difficult to apply."
- With regards to untargeted malice Mr Sheldon took me to the further explanation in section 13-132 of Clerk & Lindsell:
"13-132 Untargeted malice The basis of liability for untargeted malice was reviewed in Three Rivers DC v Bank of England (No.3).717 Here some 6,000 investors who lost deposits when the fraudulently run Bank of Credit and Commerce International (BCCI) collapsed, claimed that the senior officials of the Bank of England acted in bad faith in: (a) licensing BCCI in 1979 when they knew it was unlawful to do so; (b) shutting their eyes to what was happening at BCCI after the license was granted; and (c) failing to close BCCI when the known facts cried out for action in the mid-1980s. The question was whether these allegations were sufficient to ground liability for misfeasance in public office on the part of the Bank of England. The Bank argued that for liability under the second limb it must be shown that the officials knew of the illegality of their acts and of the probability of resulting injury and that recklessness as to the illegality and probable injury was not sufficient. The claimant argued that objective recklessness in the sense of there being an obvious risk to which the defendant had failed to give any thought, was sufficient. The House of Lords held that recklessness was sufficient but only in its subjective sense. Lord Steyn commented that to impose liability where the defendant had acted with reckless indifference to the illegality of his act and the probability of its causing injury, was "an organic development, which fits into the structure of our law governing intentional torts" and that "the policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences".718 However, he also said that the difficulty with a test of objective recklessness was that "it could not be squared with a meaningful requirement of bad faith in the exercise of public powers which is the raison d'etre of the tort". Hence, the claimant has to prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act and its consequences. The nature of untargeted malice sufficient for the tort was considered by Nicol J in TBS v Metropolitan Police Commissioner.719 Here, the claimant's father had been an undercover police officer who had embarked on a relationship with his mother, an animal rights activist, while assuming a false identity. The claimant was born in 1985, and his father's true identity as a police officer was revealed only in 2012. The claim related to the psychological consequences of these events. Nicol J declined to strike out actions framed in misfeasance, and in negligence. So far as misfeasance was concerned, the claimant asserted that the tortfeasor knew that the claimant "was likely to suffer psychiatric damage or was recklessly indifferent to this consequence". A submission that this was insufficient, and that the claimant needed to show that psychiatric injury was known to be a probable consequence, was rejected. Language used by the House of Lords in Three Rivers had varied, but Lord Steyn had used the expression "likely to cause damage" as a test of liability; and Lord Hope had referred to a "serious risk that the plaintiff would suffer loss". The point was too uncertain for striking out to be an appropriate course. In Eurasian Natural Resources Corp Ltd v Dechert LLP,720 a claim in misfeasance against the Serious Fraud Office (SFO) failed because SFO officers had not had knowledge of the loss the claimant company was likely to suffer. At the same time, an action for inducing breach of contract succeeded, where a solicitor retained by the company to advise on internal investigations into alleged corruption disclosed conficential information to his contacts at SFO and leaked information to the press. The solicitor had acted negligently and in breach of his contractual and fiduciary duties.
13-133 A knowing excess of powers is also essential…"
- With regard to both targeted and untargeted malice aspects, Mr Sheldon drew my attention to the particular passages in Three Rivers DC v Bank of England (No 3) which are cited in Clerk & Lindsell.
- With regard to targeted malice, Mr Sheldon submitted that for the claimant to succeed, he would have to advance and make out a case that the security services had an actual mental subjective specific intention to injure the claimant; and further, that the claimant would have to show that the security services were not subjectively in their own minds concerned with protected national security. Mr Sheldon submitted that both of those matters would have to be made out in order for the security services to have been acting for an improper or an ulterior motive.
- He submitted that actual intention was required and mere recklessness i.e. not caring either way, was not sufficient for a claim in targeted malice. Mr Sheldon submitted that the revised particulars of claim did not advance such a set of allegations and that even if they did, they did not comply with my July order, in particular in not either particularising the intention or setting out the facts from which a court would be invited to infer that such intention existed.
- Mr Sheldon further submitted that the relevant unlawfulness also has not been sufficiently particularised.
- He further submitted that all of this was a great importance, particularly in circumstances where, at first sight, for the British Security Services to provide a list of persons whom they suspected were involved in terrorist activity, even if they were making mistakes with regards to certain of those persons, such as the claimant, is something which an intelligence service would ordinarily be expected to do if it could obtain the cooperation of the relevant foreign agency. Further that this was particularly so where the relevant individual (here the claimant) was located in this country. They would not be setting out to injure the claimant; but rather simply to obtain information, and they would be believing (whether or not correctly) that they were acting in accordance with their powers, being to seek to protect this country against terrorism, and where the claimant (being in this country) would not be at particular risk.
- Mr Sheldon submits that if the claimant is trying to advance a case which is contrary to what one would expect to be the ordinary situation, there is an even greater burden on him to comply with my July order and set out precisely what the case is and the facts and matters relied upon to support it, and that the revised particulars of claim simply do not do that.
- The claimant relies on each of his various documents which I have identified. He is saying that the security services did intend to injure him personally, and in effect, that that intention can be inferred from what is and was common general knowledge of the nature of the then Libyan state and it is then intelligence services. He might also be able to add that he would have a much better ability to allege intention, and what facts he would rely on for the court to infer intention, once the disclosure, and possibly also witness statements, had taken place, being a time when he could have seen what had actually been going on in the minds of relevant security services personnel.
- As far as this aspect is concerned, it seems to me that the present claim ought at this point to be struck out. That is for the following reasons. Firstly, it seems to me the revised particulars of claim simply do not comply with my order of July. They only make a very bold statement, without more, that the security services intended to cause harm to the claimant. Further, they do not either unequivocally say that there was an intention to cause such harm, rather, they say that the security services acted either with the intent to cause harm or with reckless disregard.
- That is not a proper pleading of intention. It is proper to plead intention on the basis that the security services intended to cause harm as a primary claim and with recklessness or some other lesser state of mind being advanced as a secondary claim in case the primary claim failed. However, to frame it as an "either/or" is not sufficient because the pleading is then ambiguous as to whether or not it is being said that there was an actual specific intention to cause harm in the minds of the relevant personnel or just that it could have been mere recklessness i.e. a not caring whether or not harm would be caused.. That would not matter if mere recklessness and not caring what happened was sufficient to establish targeted malice, but it is not. What is required for targeted malice is an actual intention to harm.
- Further, the revised particulars of claim do not give any facts or matters from which the court would be asked to infer that the security services had the relevant state of mind. The other documents -- even if they are capable of being relied on in this context -- are also extremely thin on this particular subject.
- While I accept that, in a case of this nature, it may very well be that it would be the defendant which holds the relevant material, and so that it is not (yet) available to the claimant, it is still necessary, in my judgment, for the claimant to give some factual basis from which the necessary state of mind (intention) could be inferred even if only very limited detail was required. However, it seems to me that the present document simply does not state any facts at all from which an relevant subjective intention could be inferred.
- Accordingly, the proposed revised particulars of claim neither comply with my order, nor with the general law as to how these claims must be put forward and which my order was designed to reflect.
- As far as the question of whether the claimant has to assert and demonstrate that the defendant's personnel were not in their own minds concerned with national security, I am less sure. It seems to me at first sight, that the law might be that, while the claimant has to allege a specific intention to harm him, it would be for the defendant to say that notwithstanding such a specific intention, the defendant's personnels were acting in a justified manner.
- The statements within Clerk & Lindsell do not it seems to me, answer that particular question as to whether the claimant actually has to state and prove that the defendant did not have an intention to act in accordance with their powers, here to protect the national security, and whether it is enough for the claimant to allege the existence of a specific intention to harm them leaving it to the defendant to assert any justification for holding that intention. However, it does not seem to me that I need to resolve that particular question at this point, because it seems to me that the necessary specific intention to harm the claimant, and the facts supporting such an inference as to the defendant's operatives states of mind being drawn, are simply not properly stated in the particulars of claim.
- The second way in which this aspect of the claim is put is by way of an allegation of untargeted malice. Here Mr Sheldon submits, in my view rightly, that what has to be advanced and proved by the claimant is:
a. that the act was unlawful i.e. that it was outwith the powers which the security services had, either being generally outside those powers whatever their intentions and beliefs) or being exercised without the intentions (or beliefs) required for a proper exercise of those powers, And
b. that the relevant personnel were at least reckless i.e. knew that what they were doing was outside their powers and might injure the claimant as a result, or did not care as to whether what they were doing was or was not within their powers and as to whether the claimant might be injured as a result.
- Again, this is a requirement of (at least) subjective recklessness and involves the personnel having the relevant state of mind.
- Here Mr Sheldon again submits that my July order has not been complied with and neither has been the general law. He submits that the revised particulars of claim do not set out the relevant unlawfulness and, even if they make some reference to recklessness with regards to the consequences of actions, they do not deal with recklessness with regards to lawfulness or unlawfulness.
- He further submits that, even if there is a reference to recklessness and recklessness with regards to risk of harm, that the relevant facts are not identified from which the court would be invited to draw inferences as to what was the actual states of mind of the relevant personnel involved.
- The claimant would refer to his various documents to say that, one way or another, it can be ascertained from them as to what facts the claimant seeks to rely on, and in particular a contention that it would be general knowledge and obvious that, if the claimant's name is provided by the British Security Services to the Libyan Security Services, the British Security Services, (a) would be providing a name to a body which was known to invade in human rights abuses and (b) the security services would not have cared about that and any consequent unlawfulness and (c) the security services would not have cared about whether or not there would be potential harm to the claimant, which bearing in mind the potential reach of the Libyan Security Services within Libya and possibly abroad, might result in harm to the claimant.
- Again, it seems to me that Mr Sheldon was right to say that the present revised particulars of claim are simply not good enough, and do not comply with either my order or the general law. Again, it seems to me that it is essential that the various elements are identified properly, including both what the allegation as to state of mind actually is and the facts and matters which are said to support it being inferred. It is a requirement of the general law, and it is also a requirement of my July order.
- The revised particulars of claim do not state what is the unlawfulness. They do not, at first sight anyway, state that the security services were recklessness to unlawfulness. They do not state the facts and matters relied on for inferring such suspected state of mind in relation to unlawfulness, and even if they do make a statement of recklessness as to risk of harm, they do not identify the facts and matters relied on to say that that state of mind should be inferred either.
- It does also seem to me that there is also considerable force in Mr Sheldon's further point that, where the claimant is located in this country, it is difficult to see as to how the security services could have thought that giving the claimant's name to the Libyan Security Services, it result in this harm to the claimant in this country. This, however, simply emphasises the importance of the claimant pleading his case as to the matters above.
- For those reasons, it seems to me that the present pleading is simply not good enough to properly advance such a case, and further, the fact that it is not such a proper advancing makes it impossible for me to determine that the particulars of claim actually advance reasonable grounds for such a claim to succeed. Therefore, in their present form, the claimant's statement of case does not disclose reasonable grounds for brining that aspect of the claim, and which should be struck out under CPR3.42(a).
- I have asked myself as to whether, in these circumstances, the claimant should be given an opportunity as claimants usually have to seek to better advance their case. Mr Sheldon submits that I should not. He says: firstly, that this claim is old and stale, where the claim form was issued three or four years after when the claimant learnt of the relevant facts, and relates to events back in 2005 to 2007; and, secondly, that the claimant has been given a full opportunity to advance the claim properly, and, indeed, where the court set out very carefully indeed, in my carefully and clearly worded July order, what the claimant needed to do. Thirdly, he submits that the claim is thin in any event, essentially for reasons already advanced which I have already cited from his submissions.
- The claimant refers to the fact that he is a litigant in person and vulnerable, and that he would contend anyway that much of what he wishes to rely upon, being matters as to the usual types of conduct of the then Libyan Security Services, are effectively common knowledge and uncontroversial.
- I have considered this aspect somewhat anxiously, particularly bearing in mind that: this case has a certain amount of public importance in view of what is said to have been the relationship and conduct of the British Security Services with the then Libyan Security Services; and where there have been other claims brought in this area which have led to at least some governmental recognition as to some events which have happened, even though the position here is that the security services simply do not confirm or deny what the claimant alleges.
- The conclusion to which I have come to is as follows. I am effectively going to leave this matter over, rather than fully decide it as this point. What I am going to direct is that the present particulars of claim are struck out subject to this order, so the striking out will only take place notionally at a later period of time (to avoid certain problems under the rules relating to limitation); and that the claimant will produce any revised particulars of claim upon which he seeks to rely in relation to his aspect in a form which fully complies with my July order within a particular period of time, failing which he will be barred from advancing the misfeasance in public office case.
- There will then be considered whether or not the claimant should be permitted to amend to advance such an amended case. What I am envisaging here is that, if there is any appeal against my decision in relation to the psychiatric injury aspect, that whatever the claimant seeks to advance (if anything) is to be also (potentially as this would be up to the appeal court as to whether or not this occurred) considered by the appeal court. There would be dangers of inconsistent outcomes or outcomes reached without a full appreciation of what was being alleged if different aspects of this case were to be considered by different judges at different times, and it seems to me at first sight that it would be desirable for everything to be considered altogether and for one judge to determine all of the question of what the claimant is permitted to advance.
- I do also bear in mind in this particular area, that it may be that this particular claim for misfeasance does not amount to a claim which falls within the section 11 of the 1980 Act, on the basis that it is a claim for misfeasance in public office rather than a claim for negligence, nuisance or breach of duty, and therefore, that, in view of the timing of the claim, it is limitation barred unless the claimant can rely upon section 32 of the 1980 Act. In view of what I have said above with regard to section 32 and the negligence claims, it seems to me that for the same reasons I should simply treat section 32 as not having been raised before me (even if, on some permutations, it may be sought to be raised in the future).
- The claimant advances two other ways in which he seeks to put his claim.
- The first is by way of asserting that the security services have committed a trespass to goods by way of creating a situation whereby the Libyan authority decided to invade the home in Libya and take the claimant's property.
- As to this, Mr Sheldon has drawn my attention to the law on trespass to goods as set out in Clerk & Lindsell and to section 16-139:
"16-139 Need for interference with possession Though the right to possession, without actual possession, may enable a claimant in conversion to maintain a claim, in trespass the claimant must be in possession at the time of the interference. "The distinction between the actions of trespass and trover is well settled: the former is founded on possession: the latter on property."645 There are certain exceptions to this rule. First, a trustee not in possession may sue in trespass any third party notwithstanding that the chattels are in the hands of the beneficiary.646 Secondly, an executor or administrator may sue in trespass anyone interfering with the chattels of the deceased before probate or letters of administration are granted. The representative's title relates back to the time of the trespass.647 Thirdly, the owner of a franchise (for example to take wreck or treasure trove) can sue in trespass anyone taking the goods before he could seize them.648 Fourthly, where a bailment is determinable at will, the bailor retains sufficient possession to entitle him to sue third parties;649 and a fortiori, the same rule applies where the bailment has actually been determined.650 "
Footnote 649 reads "Nicolls v Bastard (1835) 2 C.M. & R. 659. In USA v Dollfus Mieg et Cie SA [1952] A.C. 582 at 611, Lord Porter suggested that this might only apply where the bailment was gratuitous. But with respect, there seems little reason for any such limitation."
- Mr Sheldon asserts that the claimant was not in possession of the relevant goods even on the claimant's own case and therefore, that the claimant cannot bring such a claim in any event. I do not accept that that submission is necessarily a knockout argument.
- The citation from Clerk & Lindsell makes clear, by reference to case law, that the person who is the owner of goods who has "bailed" the goods (i.e. given them into possession of somebody else) on the basis of a bailment to determinable at will, retains sufficient possession to entitle them to sue third parties, reference being made to caselaw at footnote 649.
- As far as the claimant leaving property at his home in Libya in the custody of his brothers is concerned, at first sight it seems to me that that is perfectly consistent with a gratuitous bailment determinable at will i.e. a situation where no charge had been made by the claimant to the brothers, and, at any point, the claimant could have simply asked his brothers to return his property to him, and they would have had to have done so.
- It does not seem to me that the claimant's claim should be struck out or have reverse summary judgment against it on that ground.
- Secondly, Mr Sheldon submits that a claim for trespass to goods is an intentional tort, rather than a tort of negligence, based on a failure to exercise reasonable care, or a tort to strip liability. He submits that what would be required is an actual subjective intention on the part of the British security services personnel fore the Libyan security services to take the claimant's property. He submits that not only does the claimant not not assert any such intention on the part of the security services, but also that, in my July order, paragraph 4(e)(iv) required the claimant in the revised particulars of claim to fully plead out that intention and the facts and matters relied upon to support the court inferring that that intention existed in the minds of the security services personnel. Mr Sheldon submits that that is not being done at all.
- The claimant simply relies on the wording of the relevant document itself and other wordings to which I have already referred.
- It seems to me that Mr Sheldon is right when he submits that the necessary intention and the facts from which it would be inferred are simply not pleaded in the revised particulars of claim. It therefore seems to me that this is not a proper pleading of a trespass to goods claim, it does not contain reasonable grounds for that claim, and should be struck out on that ground – CPR3.4(2)(a).
- Thirdly, Mr Sheldon submits that the trespass to goods claim is any event impossible because the taking the goods was not carried out by the British Security Services, but by the Libyan Security Services.
- He submits that, even if the British Security Services intended such action to be occurred, it was not carried out by them and therefore they cannot be liable in trespass. That it seems to me, potentially gives rise to something of a different question of law. If there was a situation of one person saying to another person, please take a victim's goods; or a situation of the first person creating circumstances where the other person might well take the goods; questions of law would arise as to whether such facts would give rise to a right of action in the victim against the person who effectively set up the situation whereby another took the victim's goods, and, if so, whether the correct cause of action would be trespass to goods or some sort of tort of encouraging a trespass to take place or even some sort of tort within the law of negligence.
- At first sight, it seems to me that these could be difficult questions of law and not ones that I should engage in. I think it appropriate to proceed on the more simple bases that (1) no properly pleaded case setting out reasonable grounds for the claim has been advanced – CPR3.2(a); and (2) my July order has not been complied with – CPR3.4(2)(c); and therefore, that the claim simply ought to be struck out on each of those two twin bases.
- I have asked myself as to whether I should give the claimant a further opportunity to try advance a properly pleaded claim in this respect. However, it seems to me, having balanced the various considerations and the overriding objective, that that is not something that I should allow.
- I so conclude in particular because I find it very difficult to see as to how the British Security Services on the material before me could possibly have an intention that the Libyan Security Services should take some property which the claimant just might happen to have had in Libya. That simply seems at first sight to be too unconnected with the material before me. Further, if the claimant has a claim, it seems to me at first sight that it would exist in the law or negligence in any event and that to afford the claimant a further latitude here to try and replead the trespass to goods claim, with consequent expense of time, costs and resource, would be going too far in the claimant's favour. It therefore seems to me that I should just strike that claim out.
- The claimant also advances the claim for trespass to person, stating that the security services effectively caused a trespass to a person to take place. Mr Sheldon has drawn my attention to Clerk & Lindsell at paragraphs 14-01 onwards with regards to this:
"14-01 Trespass to the person It has long been recognised that "[t]he fundamental principle, plain and incontestable, is that every person's body is inviolate".1 As such, interference, however slight, with a person's elementary civil right to security of the person, and self-determination in relation to his own body, constitutes trespass to the person. Trespass to the person may take three forms, assault, battery and false imprisonment: "An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person", and false imprisonment is "the unlawful imposition of constraint on another's freedom of movement from a particular place".2 These torts are all descended from the ancient writ of trespass. The two distinctive features of trespass were that it is actionable per se and that the interference with the claimant's interest has to be a "direct" consequence of the defendant's act. Indirect consequences were the subject of a writ of "trespass on the case", later referred to as an "action on the case" or simply "case". This distinction is retained in modern law, in terms of the rules of remoteness of damage. The claimant can recover in trespass for all the direct consequences of the tort, even if they are unforeseeable. However, the distinction is seldom important,3 as most direct consequences are also foreseeable.
14-02 Trespass to the person is also regarded as a tort of intention, but as will be seen,4 in this context the term "intention" has a very particular meaning. Although there is a generalised principle of liability for careless conduct (in the form of the tort of negligence) English law has not developed a general principle of liability for the intentional infliction of harm; rather a claimant must demonstrate that his case falls within the specific requirements of one of the particular trespass torts. Furthermore, despite Lord Hoffmann's observation that Wilkinson v Downton has nothing to do with the tort of trespass to the person,5 it is appropriate to consider that case in this chapter, along with the statutory rules on protection from harassment.6…
14-04 Trespass: intention and negligence An act does not constitute trespass to the person unless it is done deliberately or (assuming that it remains possible to commit trespass negligently9) negligently.10 A man pushed by another against a third person commits no battery. A blow inflicted in a state of automatism is no battery, but if the defendant intended to strike the claimant it is no defence simply that, by reason of mental incapacity, he did not know that what he was doing was wrong.11 When the defendant is proved to have intended to commit a battery against X, and by mistake strikes Y, that is a battery against Y.12 Thus, when a soldier fires into the crowd at a rioter intending to strike him, but misses and strikes another person nearby, it is no defence that the defendant did not intend to strike the claimant.13 The defendant's intention relates to the act constituting trespass; there is no requirement that the defendant intended to harm the claimant.14
14-05 In Letang v Cooper,15 Lord Denning attempted to confine trespass to the person to intentional acts and to bar any action for negligent trespass:
"If one man intentionally applies force directly to another, the [claimant] has a cause of action for assault and battery, or, if you so please to describe it, in trespass to the person… If he does not inflict injury intentionally but only unintentionally, the [claimant] has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care."16
However, although Danckwerts LJ concurred with Lord Denning's judgment on negligent trespasses, Lord Denning himself offered as an alternative ratio in Letang17 the idea that any action for trespass to the person, including intentional trespass, was barred after three years as an action for personal injuries arising out of "breach of duty".18 Hence it is not yet finally established that direct injuries in?icted via negligence are not actionable in trespass."
- Mr Sheldon contends that such a claim simply cannot exist. Firstly, because the law of trespass to person only applies to physical assaults and not the indirect causing of psychiatric damage and upon which basis the claimant pleads the basis on this personal injury case, see Wainwright v Home Office [2003] UKHL 53 to such effect. Secondly, Mr Sheldon contends that the tort is one of intention and that the claimant has again failed both the plead intention, and the facts and matters relied upon to justify and inferring of such intention, in breach both of the general law and the July order.
- Thirdly, Mr Sheldon would submit that in any case, the claim has no real prospect of success, asking the rhetorical question as to how the security services could have intended the Libyan Security Services to attack the claimant, physically or mentally, when the claimant was located within this country.
- The claimant would again rely on the various documents and their wordings to which I have already referred.
- Again, it seems to me that Mr Sheldon is right here. Firstly, the nature of the injury claimed does not fall within the concept law of trespass to person, because it is purely an indirect psychiatric injury. Wainwright makes clear that trespass to person is limited to physical assault. Thus reasonable grounds for such a claim are not pleaded – CPR3.4(2)(a). Secondly, it seems to me to be clear that trespass to person iss a tort of intention, and that the claimant has again failed to plead an intention or facts and matters from which an intention is to be inferred, in breach both of the general law so that reasonable grounds are not pleaded (CPR3.4(2)(a)) and my July order (CPR3.4(2)(b)).
- Thirdly, it does seem to me that the claim is an extremely thin one at best for the reasons which Mr Sheldon has given.
- Again, it seems to me that the proper course, essentially for the same reasons as regards to trespass to goods, is simply to strike this aspect of the claim altogether.
27.3.2025
