![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (King's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Owadally & Anor v Planology Ltd & Ors [2023] EWHC 339 (KB) (17 February 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/339.html Cite as: [2023] EWHC 339 (KB) |
[New search] [Printable PDF version] [Help]
QA-2022-00048 |
KING'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT (MAYOR'S & CITY OF LONDON)
ORDER OF HHJ HELLMAN DATED 21 JANUARY 2022
COUNTY COURT CASE NO. F36YM270
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
(1) MR FAROOK OWADALLY (2) MS SEEMA KHAN |
Claimants & Respondents |
|
- and - |
||
(1) PLANOLOGY LTD |
First Defendant & Appellant |
|
(2) HAWKINS RYAN SOLICITORS (a firm) |
Second Defendant |
|
(3) BELL BUTTRUM LTD |
Third Defendant & Appellant |
____________________
Mr Nicholas Baldock (instructed by Beale & Co Solicitors) for the Third Defendant & Appellant
Mr Richard Liddell KC & Mr Christopher Greenwood (instructed by Brett Wilson LLP) for the Claimants & Respondents
Hearing date: 16th January 2023
____________________
Crown Copyright ©
Mrs Justice Collins Rice :
Introduction and background
The decision under appeal
[22] C has no real prospect of establishing that their convictions were for trivial offences. But in my judgment they do have a real prospect of establishing (i) that they were not privy to one of the facts making their act unlawful, namely that the building works would affect the character of the Property as a building of special architectural or historical interest, an issue which was the subject of expert evidence both at trial and on appeal; and (ii) that in those circumstances the ex turpi defence is not engaged. I am therefore not satisfied on Ground 1 that the statement of case discloses no reasonable grounds for bringing the claim; or that the statement of case is an abuse of the court's process. Neither am I satisfied on Ground 1 that a case for summary judgment has been made out.
[23] Even had I been satisfied that Ground 1 was made out, that would not have been a complete answer to the claim, because it derives in part from actions for which C was convicted at first instance but acquitted on appeal.
The appeals
The legal framework
(a) Appeals
(b) Terminating rulings
(c) Abuse of process
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
Criminal proceedings are in my opinion in a special category because although they are technically litigation between the Crown and the defendant, the Crown prosecutes on behalf of society as a whole. So a conviction has some of the quality of a judgment in rem, which should be binding in favour of everyone. [T]his policy is reflected in section 13 of the Civil Evidence Act 1968, which provides that in an action for libel or slander, proof of the plaintiff's conviction is conclusive evidence that he committed the offence of which he was convicted.
But one should not exaggerate this argument. The policy reasons which justify making the conviction conclusive evidence in a defamation action do not necessarily apply to other actions. I said that a conviction has some of the quality of a judgment in rem but, as a matter of law, it remains a judgment between the Crown and the accused and that is often the right way to consider it. The Court of Appeal is generally thought to have taken the technicalities of the matter much too far when it decided in Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 that in civil proceedings a conviction was res inter alios acta and no evidence whatever that the accused had committed the offence. But when Parliament reversed this rule in section 11(1) of the Civil Evidence Act 1968, it did not say that the conviction would be conclusive evidence, so that the issue could not be relitigated. It said only that the conviction was admissible evidence for proving that he committed the offence.
(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other Both or either interest may be engaged.
(2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse ; and the court's power is only used where justice and public policy demand it
(3) To determine whether proceedings are abusive the court must engage in a close 'merits based' analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process
(4) In carrying out this analysis, it will be necessary to have in mind that (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within 'the spirit of the rules' ; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated ; or, as Lord Hobhouse put it in the Arthur JS Hall case, if there is an element of vexation in the use of litigation for an improper purpose.
(5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process
(6) An appeal against a decision to strike out on the grounds of abuse, described as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not the exercise of a discretion. Nevertheless, in reviewing the decision, the court of appeal will give considerable weight to the views of the judge
(d) The case law on the 'illegality defence' in civil claims
arising in the public interest, irrespective of the interests or rights of the parties. It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound to take the point of his own motion, contrary to the ordinary principle in adversarial litigation. [I]n general, although described as a defence, it is in reality a rule of judicial abstention. It means that rather than regulating the consequences of an illegal act (for example by restoring the parties to the status quo ante, in the same way as on the rescission of a contract) the courts withhold judicial remedies, leaving the loss to lie where it falls. The ex turpi causa principle precludes the judge from performing his ordinary adjudicative function in a case where that would lend the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of an illegal act. (at [23]).
To that extent, an inquiry into the claimant's moral culpability may be necessary in such cases before his act can be characterised in law as 'turpitude'. This may be a difficult question, but it is not a question of degree. The conclusion will be a finding that the claimant was aware of the illegality or that he was not. It is a long way from the kind of value judgment implicit in the search for a proportionate relationship between the illegality and its legal consequences of the claim.
The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather than by the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
One comprises cases in which the claimant's participation in the illegal act is treated as involuntary: for example, it may have been brought about by fraud, undue influence or duress on the part of the defendant who seeks to invoke the defence. The best-known example is Rhodes v Burrows [1899] 1 QB 816, where the illegality consisted in the plaintiff having enlisted in the defendant's private army for the Jameson raid, contrary to the Foreign Enlistment Act 1870. The illegality principle was held not to arise because he had been induced to do so by the defendant's fraudulent misrepresentation that the raid had the sanction of the Crown, which, if true, would have made it legal. Cases in which the illegality consisted in the act of another for which the claimant is responsible only by virtue of a statute imposing strict liability, fall into the same category: see Osman v J Ralph Moss Ltd [1970] 1 Lloyd's Rep 313; Les Laboratoires Servier v Apotex [2015] AC 430, para 29. In such cases, however, the construction and purpose of the statute in question will call for careful attention.
(1) Both the narrow claim and the wide claim failed on the grounds of public policy.
(2) All judges considered that the relevant policy in connection with the narrow claim was the need to avoid inconsistency so as to maintain the integrity of the legal system: 'the consistency principle'.
(3) Lord Hoffmann did not consider that this applied to the wide claim but held that a related policy did, namely that 'it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct (para 51). I understand this to mean that allowing a claimant to be compensated for the consequences of his own criminal conduct risks bringing the law into disrepute and diminishing respect for it. It is an outcome of which public opinion would likely disapprove and would thereby undermine public confidence in the law: 'the public confidence principle'.
(4) The public confidence principle is also applicable to the narrow claim. It is related to the consistency principle since one of the reasons that the public would be likely to disapprove of the outcome is the inconsistency which it involves between the criminal law and the civil law.
(5) Although Lord Rodger appeared to consider that the consistency principle did not apply to the wide claim, the policy reasons he gives for rejecting the claim reflect that principle. The reason that a person cannot 'attribute to others' acts for which he has been found criminally responsible, or 'seek rebate' of the consequences of those acts, is that it would be inconsistent with that finding of criminal responsibility. If a person has been found criminally responsible for certain acts it would be inconsistent for the civil courts to absolve that person of such responsibility and to attribute responsibility for those same acts to someone else.
(6) Whilst the consistency principle more obviously applies to the narrow claim, on analysis it applies to the wide claim as well. In relation to the narrow claim the inconsistency is with both the criminal court's finding of responsibility and the sentence it has imposed. In relation to the wide claim it is with the former only.
Analysis
(a) Preliminary
(b) The findings of the criminal courts
The probable reason for the section being constructed in that way is because it purports to impose strict liability in order to deter and prevent breaches of the statute. Although damage to listed buildings can subsequently be corrected, irreversible harm may already have been done. Importing concepts of mens rea and fault would make the objects of this statute unworkable. It would be open to an accused to simply put the blame on others, including professional advisers and builders who would frequently be involved, in order to avoid criminal liability. Such issues are intended to be matters of mitigation, not defence.
So 'cause to be executed' did not imply 'fault or culpability', it just meant 'bringing about a result'.
(c) Abuse of process
i) The Magistrates' Court rejected as misleading the Respondents' evidence they simply handed the whole project over to the professionals. The Respondents reply that that is not the position they now advance in the civil claim, no relevant findings were made on this issue, and the rejection of their evidence may go to the issue of their credibility in the civil claim but not to whether it is abusive.
ii) The Magistrates' Court found the Respondents were in control of and fully involved in the programme of works. The Respondents reply they do not dispute that in the civil claim.
iii) The Magistrates' Court found it 'hard to accept' the Respondents did not realise listed building consent was needed for the internal works. The Respondents reply neither of the criminal courts made a finding that their evidence on this point was untrue.
iv) The Crown Court noted Mr Owadally told Mr Williams they were going to remove the roof timbers and chimney breast. The Respondents reply they do not dispute that.
v) There was evidence before the Crown Court, and the Recorder so found, that the Respondents knew permission was required for works to listed buildings. The Respondents reply that the Crown Court had simply noted an email from Ms Khan after the initial works saying she did not know the property was listed, and that if she had she would have applied for the necessary consents. But its finding was limited concluding she did know the property was listed, not that she knew at the time the extent of the consents needed; there is a continuing dispute about what they had understood about the need for consent to internal works in particular.
vi) The Crown Court found the Respondents ordered the removal of the chimney breasts because they discovered their neighbour had been given permission to do the same some years earlier and assumed they would also be given permission. The Respondents reply there is a live issue about what sort of 'permission' was being talked about here.
vii) The Crown Court found it was no coincidence the roof was raised by the precise amount mentioned in the builder's quotation. The Respondents say there is a live issue nevertheless about the discrepancy between the quotation's reference to the 'ceiling' (internal) and what was done to the roof (external).
(d) The 'illegality defence'
(i) The potential issues for a liability trial
had been claiming damages arising directly from the sentence of a criminal court or from some other penal sanction imposed on him by law. That situation would have engaged Lord Hoffmann's 'narrower rule', and in that context it
"must be assumed that the sentence was what the criminal court regarded as appropriate to reflect the personal responsibility of the accused for the crime he had committed".
(ii) Was the County Court judge 'wrong' to remit the defence to trial?
Conclusions and decision