Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
Master Fontaine
(sitting in retirement)
Between :
Hakan Tuyunuklu | Claimant |
- and - | |
The Commissioner of Police for the Metropolis | Defendant |
The Claimant did not attend and was not represented
Zander Goss (instructed by Weightmans LLP for the Defendant)
Hearing date:
14 July 2025
REASONS FOR JUDGMENT AND ORDER MADE ON 15 JULY 2025
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on 25th July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Master Fontaine :
These are my reasons for the order I made following the hearing of the Defendant’s application dated 10 December 2014 to strike out the Claimant’s claim as an abuse of process, and/or for failing to disclose a cause of action and/or for failing to comply with the provisions of the Civil Procedure Rules. The application was adjourned from 13 May 2025 by Order of HHJ Grimshaw sitting as a Deputy Master. It is supported by the first witness statement of Shelley Barker dated 10 December 2024. The application is responded to by the Response of the Claimant dated 25 February 2025, not signed by a statement of truth.
The Claimant failed to attend the hearing of the application and provided no explanation to the court or to the Defendant for his non-attendance, although he did provide in advance to the court and to the Defendant a skeleton argument for use at the hearing on 8 July 2025. Accordingly, although I gave judgment at the hearing, I considered that it may be of assistance to him to have written reasons for my decision, which are set out in this judgment.
At the hearing Counsel for the Defendant explained to the court that the Defendant now intended to apply for the claims for negligence, misfeasance in public office, malicious prosecution, and breach of Art 6 ECHR to be struck out and the remaining parts of the Claim Form and Amended Particulars of Claim to be struck out under CPR r 3.4(2)(b) and (c), with the Claimant being given the opportunity to file and serve Substituted Particulars of Claim, subject to conditions intended to make the remaining claims more coherent.
The Factual Background to the Claim
The factual background is set out in the Amended Particulars of Claim (APOC) at paragraphs 3 to 10, and in the Defence. In summary, it arises out of an incident on 28 December 2023, at the Claimant’s flat in Whitfield Street London W1, when at about 02.00am officers of the Metropolitan Police attended in response to a complaint from a person whom the Claimant had met on the dating App Grindr who had gone to the Claimant’s flat at his invitation. The complainant had informed the police that the Claimant had filmed him engaging in sexual activity with the Claimant without his consent, so that potentially an offence had been committed under the Sexual Offences Act 2003 as amended by the Voyeurism Act 2019. The Claimant does not deny that filming took place, but states that implied consent was given, due to the presence of clear warning signs on the Claimant’s CCTV system, and that other requirements of the relevant legislation were not met. The Claimant was arrested, handcuffed from behind and transported to the police station. He was held until 12.27pm on 28 December 2023 when he was released without charge.
Application for strike out of Claims
CPR Rule 3.4 (2) sets out the grounds for strike out of a statement of case, as follows
that the statement of case discloses no reasonable grounds for bringing or defending the claim;
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
that there has been a failure to comply with a rule, practice direction or court order.
In addition, CPR 16.4(1)(a)states that Particulars of Claim must contain ‘a concise statement of the facts on which the claimant relies’. There are a number of authorities that have emphasised this requirement, so that the court can understand the cause or causes of action relied upon, and thus deal with the case fairly and efficiently, and in particular so that the defendant understands the case they have to meet, and can respond to the claim appropriately and fairly, with all the necessary information.
I will now deal separately with each of the claims that the Defendant sought to strike out from the Claimant’s statements of case.
Negligence
The Claimant relies on alleged negligence of the Defendant police force in respect of their conduct in relation to the events that occurred from the early hours of 28 December 2023 to 12.27pm on the same date when the Claimant was released from police custody.
The Claimant pleads ‘Negligent and biased investigation’ at paragraphs 73-79 of the APOC.
I accept the Defendant’s submission that it remains good law that police have no liability in negligence to a criminal suspect for the conduct of an investigation. The Supreme Court in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 at [55]-[57]; [2018] AC 736 did not change the House of Lords’ decision to that effect in Calveley v Chief Constable of Merseyside [1989] AC 1228, where Lord Bridge said at p 1238:
“It is, I accept, foreseeable that in these situations the suspect may be put to expense, or may conceivably suffer some other economic loss, which might have been avoided had a more careful investigation established his innocence at some earlier stage. However, any suggestion that there should be liability in negligence in such circumstances runs up against the formidable obstacles in the way of liability in negligence for purely economic loss. Where no action for malicious prosecution would lie, it would be strange indeed if an acquitted defendant could recover damages for negligent investigation. Finally, all other considerations apart, it would plainly be contrary to public policy, in my opinion, to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.”
As clearly established by Calveley, the police do not owe the suspect of a criminal investigation any duty of care in the law of negligence in respect of the conduct of that investigation. Accordingly, this cause of action falls to be struck out under CPR r 3.4(2)(a) as disclosing no reasonable grounds for bringing the claim.
Article 6 of the European Convention on Human Rights (ECHR)
The Claimant addresses Art 6 ECHR at paras 61-65 of the APOC and paras 46-50 of the Reply. Article 6 of the ECHR provides:
Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following minimum rights:
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
to have adequate time and facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
As the Claimant was never charged with a criminal offence so that his Art. 6 rights were never engaged. This claim falls to be struck out under CPR3.4(2) (a).
Malicious Prosecution
The Claimant addresses malicious prosecution is alleged at paragraph 104 of the APOC.
In a malicious prosecution claim, the Claimant bears the burden of proving on balance of probabilities that:
He was prosecuted by the Defendant.
The prosecution terminated in the Claimant’s favour.
The Defendant lacked reasonable and probable cause to bring the prosecution.
The Defendant was motivated by malice.
The Claimant has not pleaded that he was charged with or tried for an offence arising out of the arrest. That being so, the first ingredient of malicious prosecution is not made out, nor are any of the other requirements. This claim falls to be struck out under CPR3.4(2) (a).
Misfeasance in Public Office
This is raised at paragraphs 48-50, 61-63, and 105-106 of the APOC.
In Young v Chief Constable of Warwickshire Police [2020] EWHC 308 (QB), Master Davison re-stated the ingredients of the tort of misfeasance in public office, which Martin Spencer J quoted in full and approved as correct at [10]
Misfeasance in public office requires proof of the following ingredients:
The defendant must be a public officer;
The conduct complained of must be in the exercise of public functions;
Malice: the requisite state of mind is one or other of the following:
“Targeted malice”, i.e. the conduct “is specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of a public power for an improper or ulterior motive”. Or
“Untargeted malice”, i.e. the public officer acts knowing that he has no power to do the act complained of or with reckless indifference as to the lack of such power and that the act will probably injure the claimant.
Damage: the public officer must have foreseen the probability of damage of the type suffered.
See also Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1
It is unclear whether the claim is founded on targeted or untargeted malice, but in any event the Claimant fails to meet the ‘heavy burden’ in pleading malice, per Young. The Claimant merely asserts malice by reference to ‘unnecessary use of force, deliberate disregard of exculpatory evidence, and the prolonged detention without justification’. This is insufficiently particularised and cannot found a claim for misfeasance in public office. The Claimant has not pleaded and properly particularised the bad faith or reckless indifference relied upon, and that which is pleaded is consistent with mistake or negligence and accordingly liable to be struck out.
In paragraph 105 the Claimant relies on ‘deliberate’ disregard of exculpatory evidence, and in paragraphs 61-63 he expands on this as follows:
The officers deliberately and maliciously suppressed exculpatory evidence by:
Dismissing the Claimant’s offer to provide clear evidence of innocence
Attempting to justify an unlawful arrest
Perverting the course of justice
This passage and the following two paragraphs also fail to plead malice in the way required by Young v Chief Constable of Warwickshire. They do not particularise intention to injure the Claimant or ulterior motive, nor do they particularise knowledge of a lack of power to do the act(s) complained of.
Accordingly this claim falls to be struck out under CPR3.4(2) (a).
The Remaining Parts of the Claim Form and Amended Particulars of Claim
The Defendant submitted in addition that the APOC and Reply as a whole should be struck out, but that the Claimant, as a litigant in person, should be given an opportunity to amend his Particulars of Claim. The Defendant pointed out that the APOC are 24 pages long, and after service of a comparatively concise Defence, the Claimant filed a Reply extending to another 11 pages. It was submitted that the cumulative 35 pages of the Claimant’s statements of case do not amount to ‘a concise and clear statement of the facts’, contrary to CPR 16.4(1)(a).
I agree with the Defendant that the APOC and Reply do not meet the requirements of Rule16.4(1)(a), even with the claims listed above being struck out. They are prolix and not organised logically. A number of paragraphs are simply repeated in different parts of the statement of case. These factors make them unnecessarily complicated and difficult to understand. I considered that the APOC and Reply fall to be struck out under CPR3.4(2) (a) and (b). I have made an order that permits the Claimant to provide substituted Particulars of Claim, within a generous time frame to permit him to take legal advice, if he wishes, and consequential directions.
I addressed costs at the hearing. The Defendant sought its costs of the application. I considered that the usual rule should apply, namely that the unsuccessful party should pay the costs incurred by the successful party. There are no good reasons to make a different order. The Claimant received the Defendant’s Counsel’s skeleton argument before the hearing but made no offer to amend his statements of case and failed to attend the hearing without any notification or explanation to the court for that discourtesy.