Christopher Ness v Jennifer Miller

Mr Ridding submitted that the Amendment Application should be allowed. The Court had a wide discretion to permit the amendment and it was desirable to join D2 – D4 to resolve all of the issues in dispute and/or there were issues involving the new parties and D1 which were connected to the matters in dispute. The Claimant did not have all the requisite information when the claim was first pleaded, the unredacted England Athletics emails indicating their authorship were only disclosed shortly before the Preliminary Issues Trial and further information had come to light since then indicating that D1- D4 operated as a team. It would be prejudicial and disproportionate to require the Claimant to issue new claims when there was a close factual relationship between the existing claims and the proposed new claims. Mr Ridding accepted that the proposed claim for unlawful means conspiracy was a new cause of action, but he submitted that it arose from substantially the same facts as the pleaded false imprisonment claim, namely the Claimant’s arrest on 8 March 2024, as the allegation was that D1 – D4 had colluded to have him falsely arrested and had thereby caused him damage. Mr Ridding submitted that permitting the amendments would not hinder the progress of the claim to trial and that they were adequately particularised.

As regards D1’s Strike Out Application, Mr Ridding submitted that striking out a claim was a draconian step that should only be taken as a last resort and that the present application did not come close to that threshold. He said it was clear that the Claimant had a valid cause of action in false imprisonment against D1 on the pleaded basis that she had procured his arrest through the making of false reports to the police. He relied on the principle identified in Davidson v Chief Constable of North Wales [1994] 2 All ER 597 (“Davidson”) and Barkhuysen v Hamilton [2016] EWHC 2858 (QB) (“Barkhuysen”). The case against D2 – D4 was that they had colluded with D1 to intentionally and maliciously have him arrested by the damaging and false reports to police and it mattered not for these purposes if it was only D1 who had made the reports to Surrey Police. Mr Ridding argued that the allegations made to the police were such that the officers’ only option was to arrest the Claimant, given the concerns raised included stalking, harassment and fear of violence.

In relation to the data protection claim, Mr Ridding said that D1 was a custodian of the information she was given regarding the Claimant’s arrest and grant of police bail and in passing on that information, as she must have done, even if not directly to D4, she was in breach of her duty as a custodian. Furthermore, D4, as the sender of the England Athletics emails was plainly a data controller and processor in respect of the Claimant’s personal data.

Mr Hughes contended that the false imprisonment claim should be struck out as disclosing no reasonable grounds for bringing the claim. The Claimant’s arrest had been made by Surrey Police who were under a duty to investigate D1’s complaint, but not under a duty to arrest the Claimant because of her complaint; the decision to arrest him was made by a police officer acting under the powers conferred by section 24 of the Police and Criminal Evidence Act 1984 (“PACE”) and in the exercise of their discretion whether to make an arrest. The pleaded circumstances were not analogous to those in Davidson; D1 had simply given information to the police and there was nothing that indicated the Claimant’s arrest was then an inevitable consequence.

Mr Hughes submitted, in the alternative, that the claim in false imprisonment and the proposed claim in conspiracy were precluded by the witness immunity rule. Crawford v Jenkins [2014] EWCA Civ 1035, [2016] QB 231 (“Crawford”) had held this immunity extended to initial complaints made to police in relation to a crime or possible crime where the complaint is relied upon as the basis of a claim in false imprisonment against the complainant; and conspiracy to give false evidence had been held to fall within the scope of the immunity in Taylor v Director of the Serious Fraud Office [1999] AC 2 AC 177 (“Taylor”).

Mr Hughes also resisted the Amendment Application. He said that the conspiracy claim was inadequately pleaded and sought to re-open matters that had been decided against the Claimant in the Libel Judgment. He argued that permitting the amendments would not accord with the overriding objective and that the application should have been made at an earlier stage of the proceedings. He adopted the submissions made on behalf of D2 and D3 in this regard.

Ms Meadows addressed the data protection claim. She submitted that the statement of case disclosed no reasonable grounds for bringing this claim in light of the Court’s findings in the Libel Judgment that the Claimant had failed to show that D1 had caused or procured the publication of the England Athletics emails. The Claimant was precluded from going behind these findings and he had not developed any alternative basis upon which the data protection claim could survive against D1. Ms Meadows argued, in the alternative, that this claim was an abuse in the Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 (“Jameel”) sense. Even if D1 was liable for a breach of the UK GDPR or the DPA 2018, the available remedy would be so minor that it would be disproportionate to permit the claim to proceed. In this regard, she emphasised the Claimant’s failure to particularise the damage and distress he claimed to have suffered as a result of the alleged data protection breaches.

Mr Butler argued that the APC lacked particularity and coherence and that the evidential basis necessary to support an application to amend was lacking. Additionally, the application to add D2 and D3 was made six months after the claim had been issued and there was no good reason for this delay; the original Particulars of Claim had identified that D2 and D3 co-owned the Truth Finders.

Mr Butler said the Courts have repeatedly recognised the need for precise pleading in relation to allegations of unlawful conspiracy. He relied upon the summary of the principles provided by Nicklin J in MBR Acres Ltd v Free the MBR Beagles [2022] EWHC 1677 (KB) (“MBR Beagles”). He also stressed that amendments to statements of case must contain sufficient detail to enable the other parties and the Court to understand the case that is being advanced and they must disclose reasonable grounds for bringing the amended claim. The threshold test for permission to amend is the same as that applied to a summary judgment application.

Mr Butler submitted that the APC did not satisfy the requirements of accessory liability for false imprisonment. There was no pleading that D2 or D3 had directed, procured, requested or encouraged the arrest of the Claimant. At its highest, the plea was that D2 and D3 had provided false information. This was insufficient to satisfy the Davidson principle. The allegations of dishonesty were not properly pleaded. Further, the evidence provided by the Claimant fell well short of establishing a real prospect that D2 and D3 made false claims; and the complaints made by D2 and D3 to Kent Police did not play a role in Surrey Police’s decision to arrest the Claimant and the contrary is not pleaded. As regards the unlawful means conspiracy, no proper particulars are given as to the conspiracy, the role played by D2 and D3 or the specifics of the alleged agreement. Furthermore, the Claimant’s evidence did not establish any basis for the conspiracy allegation.

Mr Butler also argued that if the claim was struck out against D1, there was no existing claim that D2 and D3 could be joined to.

D4 also opposed the Amendment Application. She denied that D1 was the source of the information she had received about the Claimant’s arrest and bail conditions. She emphasised that she had nothing to do with the Claimant’s arrest and detention; she had had no contact with Surrey, Kent or North Wales Police prior to the Claimant’s arrest and the APC did not plead any act by D4 that procured or contributed to his arrest or detention. She also denied that she was a member, co-owner, operator or administrator of the Truth Finders. The fact that several women had raised concerns about the same individual (the Claimant) did not mean they were acting in concert with each other and the Claimant’s assertions of conspiracy were speculative and unsupported.

After initially submitting to the contrary, Dr Joseph accepted that D4 had processed the Claimant’s personal data in relation to the England Athletics emails. However, she emphasised that D4 denied that her actions were unlawful or in breach of UK GDPR or DPA 2018. D4 had observed disturbing behaviour on the part of the Claimant and had received corroborating reports from others. She acted in good faith and the England Athletics emails stemmed from her safeguarding concerns in relation to the Claimant. In her witness statement filed in response to the Amendment Application, D4 said she had a lawful basis for processing the Claimant’s personal data, that the processing was necessary to protect the vital interests of others, namely safeguarding children and vulnerable persons (Article 6(1)(d) UK GDPR) and/or necessary for the purposes of her legitimate interests in reporting alleged criminal conduct and safeguarding concerns (Article 6(1)(f) UK GDPR). Further or alternatively, she relied upon Article 10 UK GDPR and Schedule 1, Part 2 of the DPA 2018, which permits the processing of criminal offence data where necessary for the prevention or detection of unlawful acts and for protecting the public against dishonesty, malpractice or other seriously improper conduct.

Like D1, Dr Joseph also relied upon Jameel abuse, contending that on any view the data protection claim raised minor and insignificant matters.

CPR 3.4(2) provides (as relevant) that the Court may strike out a statement of case if it appears that: (a) “the statement of case discloses no reasonable grounds for bringing or defending the claim” or (b) “the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”. Where the Court strikes out a statement of case it may make any consequential orders it considers appropriate (CPR 3.4(3)).

CPR 17.1(2) provides that if a statement of case has been served, a party may amend it only with the written consent of all the other parties or with the permission of the court. CPR 17.3(2) states that the power of the Court to give permission to amend a statement of case is subject to CPR 19.2 concerning changes of parties. CPR 17.4 addresses amendment of a statement of case after the end of the relevant limitation period. It is accepted that all claims in these proceedings, including the proposed new conspiracy claim, are still within the primary limitation period.

CPR 19.2 is headed change of parties and provides (as relevant):

“(1)

This rule applies where a party is to be added or substituted...

(2)

The court may order a person to be added as a new party if –

(a)

it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b)

there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

...

(4)

The court may order a new party to be substituted for an existing one if –

(a)

the existing party’s interest or liability has passed to the new party;

(b)

it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.”

The Court’s approach to striking out a claim pursuant to CPR 3.4(2)(a) was summarised by Roger Ter Haar QC (as he then was) sitting as a Deputy High Court Judge in Benyatov v Credit Suisse Securities (Europe) Ltd [2020] EWHC 85 (QB) (para 60) as follows:

“(1)

In Biguzzi v Rank Leicester Plc [1999] 1 WLR 1926 at 1932-1933 per Lord Woolf MR, the Court of Appeal referred to strike out as a ‘draconian’ step: the striking out of a valid claim should only be taken as a last resort.

(2)

In a strike out application the proportionality of the sanction is very much in issue: see Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 at [44].

(3)

If the Court is able to say that a case is ‘unwinnable’ such that the continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides it may be struck out: see Harris v Bolt Burdon [2000] C.P. Rep 70, [2000] C.P.L.R. at [27].

(4)

An application to strike out the claim should not be granted where there are significant disputes of fact between the parties going to the existence and scope of an alleged duty of care unless the court is ‘certain’ (emphasis in original) that the claim is bound to fail: see Hughes v Colin Richards & Co [2004] EWCA 266; [2004] P.N.L.R. 35 at [22].

(5)

Where ‘the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or is in any way sensitive to the facts, an order to strike out should not be made’: per Sir Thomas Bingham in E (A Minor) v Dorset CC [1995] 2 AC 633 at 694B.

(6)

It is not appropriate to strike out a claim in an area of developing jurisprudence since, in such areas, decisions as to novel points of law should be based on actual findings of fact: see Farah v British Airways, The Times, 26 January 2000, CA at [42] referring to Barrett v Enfield BC [2001] AC 550 (see 557) and X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at page 741.

(7)

A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence: see Bridgeman v McAlpine-Brown 19 January 2000, unrep. (CA) at [24].”

The onus lies on the party applying to strike out to establish that the CPR 3.4(2)(a) test is made out. By contrast to an application for summary judgment, the Court generally proceeds on the basis of the facts as set out in the pleading under challenge, rather than seeking to assess the evidence at this stage: Price Meats Ltd v Barclays Bank Plc [2000] 2 All ER (Comm) 346 at para 1.

Where a statement of case is found to be defective, the Court should consider whether the defect might be cured by amendment and, if it might be, the Court should give the party concerned an opportunity to amend: White Book, para 3.4.2 citing In Soo Kim v Young [2011] EWHC 1781 (QB). When the Court strikes out a Particulars of Claim, it will often be appropriate to make an order dismissing the claim or giving judgment upon it, but the Court may instead give further directions. For example, in Brown v AB [2018] EWHC 623 (QB) Pepperall J struck out an unwieldy and unnecessarily complex defence, but directed the defendant to file a fresh pleading complying with limitations as to its length, as he considered that the defence was arguable.

The Court’s approach to an application to amend a statement of case pursuant to CPR 17.3 was summarised by Nicklin J in Amersi v Leslie and CMEC UK & MENA Ltd [2023] EWHC 1368 (KB) (“Amersi”) as follows:

“140.

Permission to amend a Statement of Case can be granted by the Court pursuant to CPR 17.3. The key principles guiding the exercise of this power are:

(1)

The threshold test for permission to amend is the same as that applied in summary judgment applications: Elite Property Holdings Ltd -v- Barclays Bank plc [2019] EWCA Civ 204 [40]-[42] per Asplin LJ (“the merits test”).

(2)

Amendments sought to be made to a statement of case must contain sufficient detail to enable the other party and the Court to understand the case that is being advanced, and they must disclose reasonable grounds upon which to bring or defend the claim: Habibsons Bank Ltd -v- Standard Chartered Bank (HK) Ltd [2011] QB 943 [12] per Moore-Bick LJ.

(3)

The court is entitled to reject a version of the facts which is implausible, self-contradictory, or not supported by the contemporaneous documents. It is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action or defence relied upon: Elite Property Holdings Ltd [42] per Asplin LJ.

(4)

In addition to being coherent and properly particularised, the pleading must be supported by evidence which establishes a proper factual basis which meets the merits test: Zu Sayn-Wittgenstein -v- Borbón y Borbón [2023] 1 WLR 1162 [65] per Simler LJ.

(5)

In an area of law which is developing, and where its boundaries are drawn incrementally based on decided cases, it is not normally appropriate summarily to dispose of the claim or defence. In such areas, development of the law should proceed on the basis of actual facts found at trial and not on the basis of hypothetical facts assumed to be true on an application to strike out: Farah -v- British Airways plc [1999] EWCA Civ 3052 [42]-[43] per Chadwick LJ.

141.

As the merits test for granting amendments is the same as that for summary judgment, it is necessary to identify some of the key principles that apply in that area.

142.

The, now familiar, principles governing summary judgment were summarised in Easyair Ltd -v- Opal Telecom Ltd [2009] EWHC 339 (Ch) [15] per Lewison J (and approved by the Court of Appeal in AC Ward & Sons Ltd -v- Catlin (Five) Ltd [2009] EWCA Civ 1098). Drawing upon other relevant authorities the following can be stated:

(1)

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. The criterion is not one of probability; it is absence of reality: Three Rivers DC -v- Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse.

(2)

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 [8]

(3)

In reaching its conclusion the court must not conduct a “mini-trial”: Swain -v- Hillman. 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 [10]; Optaglio -v- Tethal [2015] EWCA Civ 1002 [31] per Floyd LJ.

(4)

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; Doncaster Pharmaceuticals Group Ltd -v- Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.

(5)

Nevertheless, to satisfy the requirement that further evidence ‘can reasonably be expected’ to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may ‘turn up’. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd -v- TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation -v- Allianz Global Corporate & Speciality AG [2008] Lloyd’s Rep IR 413 [14] per Moore-Bick LJ; and Ashraf -v- Lester Dominic Solicitors & Ors [2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen.

(6)

Lord Briggs explained the nature of the dilemma in Lungowe -v- Vedanta Resources plc [2020] AC 1045 [45]:

‘… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…”

(7)

The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King -v- Stiefel [2021] EWHC 1045 (Comm) [21] per Cockerill J.”

Having refused permission to amend, with the result that the claim was potentially at an end, Nicklin J proceeded to consider whether the claimant should be given a further opportunity to amend his pleading to remedy the identified difficulties. Nicklin J said this turned on “whether there is any realistic prospect that s/he would be able to remedy the problem if given a chance” (para 236). If there was no such prospect, providing such an opportunity would be likely to waste further costs and the Court’s resources. Even if there was such a prospect, the Court’s discretion had to be exercised with regard to the overriding objective. Nicklin J emphasised that the latter included dealing with cases justly and at proportionate cost (para 238).

Nicklin J addressed the requirements of pleading a conspiracy in MBR Beagles as follows:

“30.

I take the following principles from Ivy Technology -v- Martin [2019] EWHC 2510 (Comm) per Andrew Henshaw QC:

‘[12] Conspiracy to injure must be pleaded to a high standard, particularly where the allegations include dishonesty:

(i)

Allegations of conspiracy to injure “must be clearly pleaded and clearly proved by convincing evidence” (Jarman & Platt Ltd -v- I Barget Ltd [1977] FSR 260, 267).

(ii)

The more serious the allegations made, the more important it is for the case to be set out clearly and with adequate particularity: Secretary of State for Trade and Industry -v- Swan [2003] EWHC 1780 (Ch) [22]-[24]; CPR PD 16 §8.2 in respect of the obligations on a party pleading dishonesty; Mullarkey -v- Broad [2007] EWHC 3400 (Ch); [2008] 1 BCLC 638 [40]-[47] on the burden and standard of proof for such claims and reiterating the well-established principle that an allegation of dishonesty must be pleaded clearly and with particularity (citing Belmont Finance Corp -v- Williams Furniture [1979] Ch 250, 268).

(iii)

Unlawful means conspiracy is a grave allegation, which ought not to be lightly made, and like fraud must be clearly pleaded and requires a high standard of proof: CEF Holdings -v- Mundey [2012] EWHC 1534 (QB); [2012] IRLR 912 [74].

(iv)

Where a conspiracy claim alleges dishonesty, then “all the strictures that apply to pleading fraud” are directly engaged, i.e. it is necessary to plead all the specific facts and circumstances supporting the inference of dishonesty by the defendants: ED&F Man Sugar -v- T&L Sugars [2016] EWHC 272 (Comm).

(v)

As to the substantive elements of the tort:

‘To establish liability for assisting another person in the commission of a tort [common design], it is necessary to show that the defendant (i) acted in a way which furthered the commission of the tort by the other person and (ii) did so in pursuance of a common design to do, or secure the doing of, the acts which constituted the tort…

The elements of this tort [conspiracy] are a combination or agreement between the defendant and another person pursuant to which unlawful action is taken which causes loss or damage to the claimant and is intended or expected by the defendant to do so (whether or not this was the defendant’s predominant purpose).” (Marathon Asset Management LLP -v- Seddon [2017] IRLR503 [132] and [135]).’

31.

As to the requirements of pleading fraud or other discreditable conduct, the approach was set out in Portland Stone Firms Limited -v- Barclays Bank [2018] EWHC 2341 (QB) per Stuart-Smith J:

‘[25] Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & Holding Corp v Privalov [2010] EWHC 3199 (Comm) [1438]-[1439] per Andrew Smith J:

‘It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini -v- Skillglass Ltd [2007] EWCA Civ 261 [73]. This principle reflects the court’s conventional perception that it is generally not likely that people will engage in such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel -v- Higgins [2009] EWCA 790 [50]. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts [1964] 1 WLR 415, 455 (cited by Lord Nicholls in In re H [1996] AC 563, 586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”…

…Thus in the Jafari-Fini [49], Carnwath LJ recognised an obvious qualification to the application of the principle, and said, “Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.”’

[26] This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar -v- Saleem [2018] EWHC 1729 (QB); Elite Property Holdings Ltd -v- Barclays Bank [2017] EWHC 2030 (QB); Three Rivers DC -v- The Governor and Company of Barclays of England (No.3) [2003] 2 AC 1 [186] per Lord Millett...

[27] One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr -v- British Polythene Industries Plc [2012] EWHC 3346 (Comm) [29]ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation -v- AU Optronics Corporation [2012] EWHC 731 (Ch) [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant.”

Unlawful Means Conspiracy

32.

Leaving aside vicarious liability, the general position in tort is that an individual is only liable for the acts that s/he does. Liability can also be established if the Defendant aids, abets, procures and/or incites the relevant act. As to responsibility for damage caused by a tort, the position is as follows, taken from Clerk & Lindsell, paragraph 4-02:

“Where damage is caused as a result of torts committed by two or more tortfeasors, the tortfeasors may be: (1) joint tortfeasors, for example where D1 and D2 are each responsible for a joint tortious venture which injures C; (2) several tortfeasors causing the same damage; or (3) several tortfeasors causing different damage. If one of a number of joint tortfeasors or several tortfeasors causing the same damage is sued alone, he is liable for the whole damage though he did but a small part of it. In the case of several tortfeasors causing different damage, on the other hand, each is liable only for the damage which he has caused”.

33.

A conspiracy to injure by unlawful means is actionable where a claimant proves that s/he has suffered loss or damage as a result of unlawful action taken pursuant to a combination, or agreement, between the defendant and another person or persons, to injure him or her by unlawful means whether or not it is the predominant purpose of the defendant to do so: Kuwait Oil Tanker Co. -v- Al Bedar [2000] 2 All ER (Comm) 271 [108].

34.

The elements that a claimant must prove for unlawful means conspiracy can be broken down as follows:

i)

concerted actions between two or more persons (the “combination”);

ii)

use of unlawful means;

iii)

knowledge of the unlawfulness;

iv)

intention to injure the claimant, whether or not it is the predominant purpose of the defendant to do so;

v)

overt act in pursuance of the agreement or undertaking;

vi)

loss or damage as a result.

Some controversy has attended the third of those, knowledge of unlawfulness, and there remain arguments as to how that particular element is to be interpreted in the context of the tort, but that does not matter for today’s purposes.”

The power to add a new party to existing proceedings confers a discretion on the Court to do so if the conditions in CPR 19.2(a) or (b) are satisfied: In re Pablo Star [2017] EWCA Civ 1768; [2018] 1 WLR 738 (“Pablo Star”) (para 47, per Sir Terence Etherton MR), this was emphasised by John Kimbell QC (as he then was) sitting as a Deputy High Court Judge in Molavi v Hibbert [2020] EWHC 121 (Ch) (“Molavi”). He went on to note that the two CPR 19.2 limbs are different and independent; and if one (or both) of them are satisfied, the addition of a party does not follow automatically, rather the use of the word “may” shows the Court must stand back and exercise an overall discretion (para 49). The Judge observed that this was essentially a case management decision. He referred to para 60 of Pablo Star, where it was said that whether it was desirable to add a party would be guided by two lodestars, the policy objective of enabling parties to be heard if their rights may be affected by a decision in the case and the overriding objective.

In Pablo Star, the Court of Appeal held that limb (a) of CPR 19.2 should be interpreted as containing two conditions: (i) that the new party can assist the court to resolve all the matters in dispute in the proceedings; and (ii) it is desirable to add the new party to achieve that end (para 48). The Court also indicated that “in dispute” ought to be read as “in issue”.

In Molavi, John Kimbell QC held that three conditions must be met for an application to succeed under limb (b) of CPR 19.2: (i) an issue must be identified between the proposed new party and an existing party; (ii) the issue must be connected to the matters already in dispute in the proceedings; and (iii) it is desirable to add the new party so that the Court can resolve the issue identified in condition (i) (para 64). For the purposes of condition (ii), whilst the proposed new party must be connected to the matters already in issue in the proceedings, the nature of that connection was not prescribed and might, for example, be an overlap of factual evidence or that the new party is concerned with the outcome (paras 66 – 67). He emphasised that condition (iii) involved the Court considering whether it was desirable for the proposed new party to be joined to resolve the issue in question or whether it was better to let it be resolved in separate proceedings (para 70).

The Claimant does not challenge the lawfulness of the conduct of the Surrey Police officers who arrested and detained him. The arrest was presumably made pursuant to section 24 of PACE, which confers a power upon a constable to arrest without warrant where (amongst other circumstances) the officer has reasonable grounds for suspecting the person in question has committed an offence and the officer has reasonable grounds for believing that it is necessary to arrest the person for any of the reasons specified in subsection (5). For a constable to lawfully exercise a power of arrest without warrant: (i) the officer must suspect the person who was arrested was guilty of the offence; (ii) this suspicion must be based on reasonable grounds; and (iii) the discretion to arrest must have been exercised lawfully: Castorina v Chief Constable of Surrey (1988) 138 NLJ Rep 180 CA.

In the claim as originally pleaded, the Claimant alleged that D1 was liable for his arrest and detention because she procured his arrest by giving false information to Surrey Police, thereby imposing a duty upon them to arrest him. The APC alleges that D1 – D4 were involved in the invention and provision of the false information.

The Court of Appeal in Davidson addressed the circumstances in which a person who makes a complaint to police about a potential crime can be liable in false imprisonment if police officers proceed to arrest and detain the subject of the complaint. In that case, police arrested and detained the claimant after a store detective reported seeing her and a friend leaving the store with a cassette they had not paid for. The claimant was subsequently released by police without charge after the store confirmed the cassette had been paid for. At trial, the police officers gave evidence that they had exercised their own judgement in arresting the claimant. The claimant accepted that her claim against the Chief Constable could not succeed because the arresting officer had reasonable grounds to make the arrest pursuant to section 24 of PACE in light of the store detective’s complaint. As regards her claim against the store detective’s employers, the Court of Appeal upheld the trial judge’s decision to withdraw it from the jury.

Having reviewed the authorities, Sir Thomas Bingham MR (as he then was) identified the applicable principle (at 603j – 605b) as follows:

“...the essential test that is applied is the same, namely whether the defendant gave the information to a prosecuting authority so that what followed was the result of that prosecuting authority or whether the defendants themselves were responsible for the acts that followed.

....

Accordingly, as it would seem to me, the question which arose for the decision of the learned judge in this case was whether there was information properly to be considered by the jury as to whether what [the store detective] did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request or direct encouragement that they should act by way of arresting these defendants. He decided that there was no evidence which went beyond the giving of information. Certainly there was no express request. Certainly there was no encouragement. Certainly there was no discussion of any kind as to what action the police officers should take.

...

The fact remains that the learned judge to my mind quite correctly held that what [the store detective] did and said no way went beyond the mere giving of information, leaving it to the officers to exercise a discretion which on their unchallenged evidence they did as to whether they should take any action or not.” (Emphasis added.)

The principle identified by Sir Thomas Bingham MR in Davidson has been applied in subsequent decisions. Two examples were cited by counsel: Barkhuysen and Ali v Heart of England NHS Foundation Trust & Anor. [2018] EWHC 591 (Ch) (“Ali”). Whilst I will refer to the judgments in these two cases, it is important to keep in mind that both were applications of the unchallenged principle identified in Davidson and that the two cases concerned widely differing factual circumstances.

In Barkhuysen, the claimant had been arrested and detained by police after his neighbour (the defendant) reported to police that she had seen him having sexual intercourse with a pig. Some weeks later the claimant was told he would not be charged. The parties had been involved in a long-running neighbour dispute by this stage. The trial judge, Warby J (as he then was) found that the defendant had deliberately invented the pig allegation that she made to police (paras 89 and 94). Her report to police was made at 10.40 hours and by 11.40 hours the same day a decision to arrest the claimant had been made. Warby J observed that there was no indication of any investigation or evidence independent of the defendant’s complaint (para 89(1)). The claimant was duly arrested at 17.50 hours (para 89(2)). Warby J found as a fact that the claimant’s arrest and detention was caused by the defendant’s report to the police (paras 92, 93 and 138)

Upholding the claim in false imprisonment, Warby J held that the claimant’s arrest and detention were “in practice, inevitable consequences of the defendant’s report” and they were brought about by “a demand or request that was implicit in her report” concerning a serious sexual crime to which the claimant and the defendant were the only possible witnesses, so the police were given no real discretion in the matter (para 138). After citing earlier authorities including the passage from Sir Thomas Bingham MR’s judgment in Davidson that I emphasised earlier, Warby J said:

“141.

The passages I have cited above might be taken to suggest that there must be some act or some words amounting to a demand, a request, or an urging of the police to take action...But that is not how I read these decisions. The law is put in this way in Clerk & Lindsell on Torts, 21 ed (2014), para 15-43 ‘It is not necessary that he should have in terms have made a request or demand it is enough if he makes a charge on which it becomes the duty of the constable to act’. That addresses the issue as one of substance not just form and, in my judgment it is the better view. And on that view the defendant is clearly responsible; she placed the police in a position where it was their duty to act as they did.

142.

But even on the narrower view the defendant would in my judgment be liable. It cannot be necessary for this purpose that the defendant should use words such as ‘please arrest him, officer’. That would be too formalistic. But in substance, that is in my judgment the request made by the defendant...Her report went well beyond merely laying information before the police, for them to do as they saw fit. Looked at realistically, in its context and against the background of previous complaints by the defendant, the report must be viewed as urging the police to arrest the claimant; it amounted to an emotionally charged and, on its face, compelling plea for action to be taken. It was in substance a direct act of encouragement and procurement of the arrest and of what followed.”

Aliconcerned an unsuccessful appeal from the trial judge’s decision to dismiss the claim in false imprisonment against the second defendant, G4S. The claimant had taken his 3-year old daughter to hospital but decided after a period of time that he wanted to take her back home. A nurse advised against this but Mr Ali persisted. In consequence, the nurse called the security staff who were also unsuccessful in persuading Mr Ali to let his daughter to remain in the hospital. When he started to leave with her, a member of the hospital staff (Mr Akram) called the police and mistakenly informed them that there was a child protection order on the daughter. This was not in fact correct. The police attended shortly after this and arrested Mr Ali on suspicion of kidnapping (and subsequently, neglect) and detained him. Some hours later he was released without charge.

Birss J (as he then was) accepted that the applicable principles were to be found in the judgment of Sir Thomas Bingham MR in Davidson (paras 24 – 26). He pointed out that the store detective in Davidson no doubt intended and expected that an arrest would follow, but that was in itself insufficient and no liability followed because her actions did not go beyond the giving of information to the police (para 28). He rejected a submission that it was necessary to consider whether the arresting officer thought they had a discretion to decide whether to arrest; the crux was whether the defendant merely gave the police information or went further and procured the arrest (paras 29 - 30). He continued:

“32.

...The point is that while malice is not a necessary element of the tort of false imprisonment, if a person deliberately invents a very serious false allegation to which they say they are a witness and which the police would be in no position to check and puts that allegation to the police so that the police officer’s discretion is effectively removed, therefore procuring the claimant’s arrest, that person commits the tort because in those circumstances they are responsible for the arrest. Such a person has gone beyond laying information before police officers for them to act as they saw fit. On the other hand a person who merely gives information in good faith albeit mistakenly does not commit the tort. To be liable they have to go beyond that by directing, requesting or directly encouraging the officers to arrest the claimant...”

Birss J went on to discuss Barkhuysen. He noted that Warby J’s narrow view was sufficient to find against the defendant in that case and that it was a long way from the facts of the case before him (para 34). He discussed Warby J’s alternative basis for finding against the defendant, observing:

“35.

The submission on the appeal before me is that this wider principle means that if a defendant acting without bad faith merely gives information to the police which is in fact mistaken, one cannot say whether or not the defendant is liable without deciding whether the police felt compelled to act as a result of what they were told or whether the police took responsibility for their decision to arrest the claimant, as the police officers did in Davidson. I do not believe that is the law nor do I believe such a principle can be derived from Barkhuysen given its very different facts...

36.

In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did. A defendant who merely provides information to the police in good faith is not procuring the claimant’s arrest even it if is practically inevitable that an arrest will follow. If the passage cited from Clerk & Lindsell which is referred to in paragraph 141 of Barkhuysen means something different then I disagree with it but I do not believe that is what the authors were saying...The sentence is followed by the words:

‘But it is a quite different thing is a party simply gives information, and the constable thereupon acts according to his own judgment. In such a case the informer incurs no responsibility for the tort of false imprisonment. The critical test is whether the defendant was responsible for the claimant’s arrest by directing or requesting or directly encouraging the officers to arrest the claimant; and in that respect did they go beyond laying information before police officers for them to take such as they saw fit.’”

Applying the test he had identified to the facts, Birss J noted that Mr Akram had not asked the police to arrest Mr Ali and, unlike in Barkhuysen, his words did not in substance or implicitly amount to such a request. The information was not presented to police in a manner which could be said to have directly encouraged an arrest (para 40).

As I indicated earlier when summarising the parties’ positions, Mr Hughes submitted that the pleaded claim in false imprisonment was in any event precluded by the principle of witness immunity, primarily relying upon the Court of Appeal’s decision in Crawford. The claimant and defendant in that case had been involved in acrimonious litigation following the breakdown of their marriage. A contact order was made in the family proceedings stipulating the extent to which the claimant was permitted contact with his children. The claimant was subsequently convicted of an offence contrary to the Protection from Harassment Act 1997 and a restraining order was made against him prohibiting him from contacting the defendant and attending certain locations. When the claimant attended his daughter’s school open day, the defendant complained to police that he had thereby breached both these court orders and he was arrested and detained. The Court of Appeal dismissed the claimant’s appeal from the striking out of his claim in false imprisonment on the basis that the defendant was immune from suit in respect of her complaint to the police.

The leading judgment in Crawford was given by Sir Timothy Lloyd (with whom Beatson LJ and Sharp LJ (as she then was) agreed). He observed that whilst the claim was brought in false imprisonment, the defendant had not herself detained the claimant and the allegation was that she had maliciously procured his imprisonment (para 19).

After a detailed review of cases concerning the witness immunity rule (paras 28 – 50), Sir Timothy Lloyd held that the defendant’s complaint to the police was within the scope of the witness immunity rule because it was the first step in a process that might involve the criminal justice system (para 51). He distinguished the circumstances from the tort of malicious prosecution, which is a recognised exception to the witness immunity rule, as the essence of that tort is the abuse of the Court’s processes (paras 54 – 56). Sir Timothy Lloyd explained his conclusion as follows:

“57.

I bear well in mind the comments of judges, some of which I have already quoted, that the scope of the immunity rule must be limited to that which is necessary in the interests of the administration of justice...However, it does seem to me that....both principle and policy support the distinction I have drawn, between, on the one had, a case where what is complained of is or involves the invocation of the process of the court, where a claim for, or akin to, malicious prosecution may be brought against the person who invoked the court process, and where the witness immunity rule does not prevent the claim being brought...and, on the other hand, a claim in circumstances where no court proceedings have taken place, so that no issue arises of a claim based on the malicious abuse of the process of the court. In such a case I see no reason to make an exception from the normal scope of the witness immunity rule. It would preclude a claim in defamation; it should also, in my judgment, preclude a claim of the kind brought by the claimant in the present case. The policy behind the witness immunity rule is the same in relation to the present claim as it would be as regards a defamation claim, and the case does not have the feature of abuse of the process of the court, which because no claim can be made against the court, justifies the possibility of a separate claim for the malicious abuse of the court’s process, which should be possible despite the witness immunity rule.”

Although I note that Davidson was cited in Crawford, it is not referred to in Sir Timothy Lloyd’s judgment and it is not immediately clear how the two can be reconciled, given there was no indication in Davidson that the claim against the store detective’s employers would be caught by the witness immunity rule. As I have already discussed, Davidson was subsequently applied in Barkhuysen and in Ali amongst other cases. Both of those cases post-dated Crawford and whilst in Barkhuysen consideration was given to whether the claim in harassment was precluded by witness immunity, this was not referred to at all in relation to the false imprisonment claim. The QB report of Crawford indicates that on 30 October 2014 the Supreme Court dismissed the claimant’s application for permission to appeal because, whilst it was acknowledged that the reasoning of the Court of Appeal was arguably erroneous, it was unlikely that his case would succeed. When I put the point to them, counsel in the present case were unable to offer any suggestions as how Davidson and Crawford could be reconciled.

In light of the course that I will take, this will be an issue to be grappled with in another case on another day. It is clear to me that this is not a clear-cut “bound to fail” type of issue appropriate for resolution on a CPR 3.4(2)(a) strike out and on the basis of assumed, rather than actual, facts. On the face of it, both Davidson and Crawford are binding on me. In the circumstances, and as he is facing a strike out application, I will take the course most favourable to the Claimant, namely I will proceed on the basis that his pleaded claim is to be evaluated on the assumed basis that the Davidson principle applies and that his claim in false imprisonment is not precluded by the witness immunity rule.

Article 4 of the UK GDPR contains a number of relevant definitions:

Article 5 UK GDPR sets out the principles relating to the processing of personal data, including at Article 5.1(a) that it be processed “lawfully, fairly and in a transparent manner in relation to the data subject”.

Article 6.1 UK GDPR provides that processing shall be lawful only if and to the extent that at least one of the circumstances in the list that follows applies. The list includes: at (d) that the processing “is necessary in order to protect the vital interests of the data subject or of another person”; and at (f) that processing “is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data...”

Article 10.1 UK GDPR (as relevant) states that processing of personal data in relation to criminal convictions and offences shall be carried out “only under the control of official authority or when the processing is authorised by domestic law...providing for appropriate safeguards for the rights and freedoms of data subjects”. Article 10.2 notes that section 10 of the DPA 2018 makes provision about when the requirement for authorisation in domestic law is met.

Section 11(2) DPA 2018 states (as relevant) that references in Article 10.1 UK GDPR to “criminal convictions and offences” include personal data relating to “the alleged commission of offences” by the data subject. Section 10(5) DPA 2018 provides that processing meets the requirement in Article 10.1 UK GDPR for authorisation by domestic law only if it meets a condition in Part 1, 2 or 3 of Schedule 1 of the Act. These include, preventing or detecting unlawful acts (para 10) and protecting the public against dishonesty, malpractice or other seriously improper conduct (para 11).

In Jameel, the Court of Appeal struck out the claimant’s defamation claim as an abuse of process. The Court held that the overriding objective and the duty under section 6 of the Human Rights Act 1988 (“HRA”) for it (as a public authority) to administer the law in a manner compatible with Convention rights, keeping a proper balance between the right to freedom of expression and the protection of individual rights, meant the Court was required to stop as an abuse of process, defamation proceedings that were not serving the legitimate purpose of protecting the claimant’s reputation, including compensating them only if their reputation had been damaged (para 55). The test of whether there was a “real and substantial tort” (applicable to service out of the jurisdiction) was equally applicable when deciding whether a defamation claim was an abuse of process (paras 70 – 71). In Jameel, publication within the jurisdiction was minimal and damage to the claimant’s reputation was insignificant, such that it was disproportionate and an abuse of process for him to proceed with the claim (paras 69 and 71). During the course of explaining this reasoning, Lord Phillps of Worth Matravers MR said that if the claim did succeed, the small amount of damages awarded would mean that the “cost of the exercise will have been out of all proportion to what has been achieved” and “The game will not merely not have been worth the candle, it will not have been worth the wick” (para 69).

The Courts have recognised that Jameel abuse can apply to data protection claims, as well as to defamation actions: Pacini & Geyer v Dow Jones & Company Incorporated [2024] EWHC 1709 (KB) at paras 61 and 110 (“Pacini”), the latter passage citing Vidal Hall v Google Inc [2016] QB 1003 at paras 134 – 136 and Harlow Higinbotham v Teekhungam [2018] EWHC 1880 (QB) at para 45. It was also acknowledged in Pacini that a claim may be small in value but of great importance to the claimant (para 61); and the jurisdiction to strike out a claim as an abuse is exceptional and will only be an appropriate course to take in the most clear and obvious cases (para 62).

The Jameel form of abuse was considered by the Supreme Court in Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21; [2025] AC 945 (“Mueen-Uddin”). The Court of Appeal had dismissed the claimant’s appeal from the striking out of his claim in defamation on the basis that it contravened the rule against collateral challenge and was an instance of Jameel abuse. The Supreme Court disagreed and allowed the appeal. Lord Reed PSC (with whom the other Justices agreed) stressed that Jameel abuse was made out where allowing the claim to continue in the absence of more than minimal damage would be incompatible with the defendant’s right to freedom of expression under Article 10 ECHR and thus contrary to the Court’s duty under section 6 HRA (para 81). Lord Reed explained that the reference in Jameel to “the game was not worth the candle” had given rise to a misapprehension. The test for Jameel abuse was not based upon weighing the value of the claimant’s claim against the costs of the proceedings, rather it was focused upon whether the damage to the claimant’s reputation was so trivial that the proceedings could not be regarded as serving the legitimate purpose of protecting the claimant’s reputation, so that the interference with the defendant’s right to freedom of expression was not shown to be necessary (para 81).

As I explained at para 66 above, I will proceed on the view of the law most favourable to the Claimant, namely that the Davidson principle applies and that the false imprisonment claim based on what D1 told Surrey Police is not precluded by witness immunity. As indicated at para 43 above, as this is a strike out application, I will focus on the Claimant’s pleaded claim. I do not seek to resolve any evidential disputes at this stage. However, for CPR 3.4(2)(a) purposes there is a distinction between a pleaded set of facts (which the Court generally treats as true for these purposes) and a bald assertion in a pleading that lacks any or any proper pleaded factual underpinning capable of establishing that assertion.

Applying the Davidson test, the crucial question for me is whether the Claimant’s pleaded case discloses no reasonable grounds for establishing that D1’s actions “went beyond laying information before police for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request or direct encouragement that they should act by way of arresting” the Claimant (para 54 above).

The Claimant has not made a claim against the Chief Constable of Surrey Police in respect of his 8 March 2024 arrest. It is not disputed that his arrest and consequent detention were lawful in terms of the actions of the arresting officer (para 51 above).

Taken at its highest, the pleaded claim against D1 is that she procured the Claimant’s arrest because she made deliberately false allegations about his conduct to Surrey Police officers and this “thereby” imposed a duty on the officers to arrest him. Importantly, there is no pleaded assertion that D1 explicitly or implicitly directed, requested or encouraged the Claimant’s arrest nor that she did anything beyond leaving the matter to the police to investigate and act as they saw fit.

The contention that D1’s report to Surrey police placed a duty on officers to arrest the Claimant, appears to be based on Warby J’s alternative, wider view expressed at para 141 of Barkhuysen (para 57 above). The “duty” argument was also lay at the heart of Mr Ridding’s oral submissions; he argued that D1’s complaint to Surrey police “impelled” the Claimant’s arrest.

Insofar as the wider view adopted in Barkhuysen represents an extension of the Davison principle, I respectfully agree with the reservations indicated by Birss J at paras 35 – 36 in Ali (para 60 above).

However, even if a complaint to police that rendered officers duty bound to arrest a claimant could satisfy the Davidson test in certain circumstances, the Claimant’s pleading does not provide a proper basis or foundation for showing that such circumstances arose, or arguably arose, in this instance. The APC identifies no proper basis for the assertion that D1’s report to police placed them under a duty to arrest him. As Mr Hughes submitted, a report to police of an alleged crime imposes a duty on the police to investigate and then take appropriate action, it does not in itself, as a matter of law, impose a duty on the police to arrest the subject of the complaint. An officer’s arrest without warrant will be lawful in the circumstances I have summarised briefly at para 51 above. Equally, I do not consider it arguable that a report to police of the kind pleaded in this case in practice gave rise to a duty on police to arrest the Claimant, as opposed to a duty to investigate and take appropriate action. The only supporting factor identified in the APC is that the report concerned serious criminal conduct. This can be said of very many complaints made to police, including (without wishing to diminish the seriousness of what was alleged in this case) matters involving markedly more serious violence and/or sexual offending. I do not accept that the nature of the reported crime is arguably sufficient for a Court to conclude that the police’s usual discretion over whether to make an arrest was removed in this case.

Furthermore, it is clear from the authorities I discussed earlier that the Davidson principle does not apply simply because the complainant’s report to police triggered the arrest in the sense that the arrest would not have occurred without that report. The arrest in Davidson would not have been made but for the store detective’s report to police and the arrest in Ali would not have been made absent the telephone call from the hospital to police, but this did not lead to a finding of liability in either case.

I have also considered the impact of the pleaded allegation that D1’s complaint to police was deliberately false (which I recognise was not the position in either Davidson or Ali). As Birss J said at para 36 in Ali, the essential test is whether the defendant’s actions had the effect of turning the police into their agent, so that they procured the arrest. In this instance, even if the plea of deliberate falsity is taken at face value, the nature of the conduct reported to Surrey police permitted independent investigation by these officers. At the least, the police could check the Claimant’s emails and blog articles to see if D1’s allegations about their content were well-founded. The police could also check whether a cease and desist letter had been sent and the contents of the same. The pleaded complaint to police is very different from the circumstances in Barkhuysen, where the allegation was serious and emotionally charged, involved an alleged act which only the defendant could have witnessed and was made in the context of multiple earlier reports to police, so that Warby J concluded the defendant’s report was in substance a direct act of encouragement and procurement of the arrest (paras 56 - 57 above).

A further difficulty from the Claimant’s point of view is that the APC’s assertion of deliberate invention is wholly unparticularised. Allegations of dishonesty must be pleaded clearly and with particularity (para 47 above). First, the pleading does not indicate the respects in which D1’s police report is said to have been knowingly false. Insofar as para 17.1 of the APC might be read as alleging that the entirety of this report was a fabrication, Mr Ridding accepted this is not a sustainable proposition as it is agreed, for example, that D1 had emailed a cease and desist letter to the Claimant. Secondly, the pleading does not identify any factual basis for the assertion that D1’s report to police was knowingly false. By way of non-exhaustive illustrative examples: the Claimant does not identify what he says did happen on 27 January 2024 (such as, that he was at another location entirely or that he did meet D1 but the encounter was friendly); and nor does he address the contents of his emails and Blog articles or explain why D1 could not have genuinely believed that they involved a hate element. The sheer fact it was subsequently decided that there was insufficient evidence to prosecute him, does not go any significant way to showing that the report made to police was false.

Furthermore, as Birss J explained at paras 29 – 30 of Ali (para 59 above), application of the Davidson test does not depend upon whether the officers involved subjectively appreciated they had a discretion to decide whether to arrest. Accordingly, whilst the extent to which additional investigations were actually undertaken by police before the arrest was made may be of some relevance, they are unlikely to be critical. In any event, the “inescapable inference” pleaded at para 17.3(c) of the APC simply does not follow, or arguably follow, from the facts that are pleaded before this; what is put to a suspect in a police interview is evidently not a comprehensive indication of the investigations that have been undertaken to date.

I have dealt with each of the specific points relied upon by the Claimant. For the reasons I have explained, none of them avail him. Ultimately, the position is as I have already indicated, there is no pleaded assertion that D1 explicitly or implicitly directed, requested or encouraged the Claimant’s arrest or that she did anything other than leave the matter up to the police to investigate and act as they saw fit.

If the pleaded case in this instance were sufficient to support a case in false imprisonment, the potential for pursuing such claims would be surprisingly wide. Those arrested for non-minor offences or (on Mr Ridding’s argument) for some form of sexual misconduct and/or violence but not subsequently prosecuted, would be able to sue their accusers for damages and litigate their false imprisonment claims to trial on the asserted basis that the complainant’s report to police was false. As I have explained, I do not understand this to represent the current legal position and there are evident, strong public policy reasons why this is not the case.

Accordingly, I conclude that the pleaded claim in false imprisonment against D1 discloses no reasonable grounds for bringing the claim within the meaning of CPR 3.4(2)(a).

Although Mr Ridding did not argue for this in the alternative, in fairness to the Claimant I have gone on to consider whether, in the exercise of my discretion, I should give him an opportunity to amend his pleading rather than striking out the false imprisonment claim at this stage (see para 44 above).

However, I decline to afford that opportunity for the following reasons. First, and most importantly, there was nothing in Mr Ridding’s oral or written submissions that leads me to believe that the claim could be re-formulated in a way that would overcome the difficulties I have highlighted. As I have already indicated, Mr Ridding’s submissions were based on the proposition that D1’s report to police meant that the officers were under a duty to arrest him. I have addressed and rejected that contention. Secondly, I bear in mind that the Claimant has already had a lengthy opportunity to produce an amended pleading, aware that he was facing the strike out application, but the APC fails to meet these difficulties. In this regard, I note that the original Particulars of Claim were drafted by (other) counsel and, as I understand it, the Claimant had the assistance of Mr Ridding in relation to the APC. Thirdly, although I have focused on the pleaded case for the purposes of the strike out application (as my above reasoning indicates), when it comes to considering whether a further opportunity should be given to amend, it is relevant to note that the known facts underscore the proposition that police did conduct their own evaluation of the circumstances before deciding whether to make an arrest (see para 14 above).

As I have indicated, Mr Ridding accepted that the Claimant was bound by the findings I made in the Libel Judgment (para 7(iv) above). This concession was correctly made. Plainly, it would be an abuse of the Court’s process to pursue a claim on the basis that D1 was involved in the publication of the England Athletics emails (as Mr Ness sought to argue in his “Reply to Submissions” document). However, having made that concession, there was little that Mr Ridding could advance in terms of avoiding a strike out of the data protection claim against D1.

The pleaded data protection claim relates to “the Publications” (the England Athletics emails) and the conduct relied upon as regards D1 is that recording, storing, publishing and disseminating these emails amounted to processing of the Claimant’s personal data in a manner that was not permitted under UK GDPR: see paras 13 – 15 APC (para 20 above). In other words, the only claim pleaded against D1 is based on factual allegations that I have already rejected in the Libel Judgment (para 13 above).

As I have summarised at para 27 above, Mr Ridding argued that D1 was the custodian of the information she knew about the Claimant’s arrest and bail conditions and that she breached her duty as its custodian in passing this on.

There are multiple difficulties with this contention. First, this allegation is not reflected anywhere in the pleading. The Claimant’s personal data that is relied upon for these purposes is that contained in the England Athletics emails (para 13, APC); and the conduct relied upon is the dissemination of this personal data by those England Athletics emails (paras 14 – 15 APC). Neither the original Particulars of Claim nor the APC contain any reference to personal data aside from that contained in the England Athletics emails or to any conduct of D1 other than in relation to those emails. Secondly, the factual basis for this claim is entirely unparticularised both in terms of the personal data in question and in terms of what D1 is said to have done with it. No indication is given as to who she is said to have passed it on to or in what circumstances. Accordingly, no proper factual basis (even on the basis of facts assumed in the Claimant’s favour) has been identified in relation to this. Thirdly, the legal basis of the claim has not been identified in terms of which UK GDPR and/or DPA 2018 duties are said to have been breached. This re-formulation of the Claimant’s case was not in Mr Ridding’s skeleton argument nor in Mr Ness’ earlier documents. It was only mentioned briefly by Mr Ridding during his oral submissions when I asked him how the data protection claim was now put and it was not developed by him in any detail.

In the circumstances, the current data protection claim must be struck out on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim and/or that it is an abuse of the Court’s process, as it is contrary to the findings I made in the Libel Judgment.

Mr Ridding did not seek a further opportunity to amend the pleading and in any event I decline to provide it. The Claimant has already had from 15 July to 9 December 2025 to re-work his data protection claim against D1 in light of the Libel Judgment and he has not taken that opportunity. The alternative way of putting the claim on the custodian basis was described in only the vaguest of terms and I was given no reason to believe it would be articulated with sufficient precision or in a legally arguable way if there was a further opportunity to amend.

Accordingly, I conclude that the data protection claim against D1 should be struck out. In the circumstances, it is unnecessary for me to address Ms Meadows’ alternative argument that the claim constitutes an abuse in the Jameel sense.

As is apparent from the terms of the APC, the proposed false imprisonment claim against D2 – D4 is parasitic on the false imprisonment claim against D1. No additional independent acts of D2, D3 or D4 are pleaded. Accordingly, as I have concluded that the pleaded false imprisonment claim against D1 must be struck out as there are no reasonable grounds for bringing the same, it follows that there is no viable basis in law for this proposed claim against the new Defendants.

I also note that the allegations in the APC concerning D2 – D4 are pleaded in the most general of terms, namely that they “unlawfully conspired and/or caused and/or procured the Claimant’s arrest” on 8 March 2024, with no specifics identified. There is simply the generalised assertion that the Defendants in the plural were somehow involved in the invention of false allegations made to Surrey Police regarding the Claimant’s conduct towards D1.

Accordingly, I refuse the Claimant’s applications to amend in relation to the false imprisonment claim and to join D2 – D4 for the purpose of pursuing this claim.

The elements that a claimant must prove for an unlawful means conspiracy were identified by Nicklin J at para 34 of MBR Beagles (para 47 above). I have also explained that the allegation of conspiracy must be clearly pleaded, with appropriate particularity, including setting out all the specific facts and circumstances that are relied upon as supporting the inference of dishonesty on the part of the defendants: MBR Beagles at para 30 (para 47 above).

The APC wholly fails to meet these requirements. The pleading is deficient in, at least, the following respects:

Mr Ridding’s submissions did not address these deficiencies. He accepted that the APC contained very serious allegations in this regard. However, he argued that the APC was sufficient “as it doesn’t need a complete exposition of the entire facts”. This contention failed to grapple with the well-established pleading requirements that I have identified. Mr Ridding did not suggest, in the alternative, that there was scope for substantially improving the way the APC is pleaded (to the contrary, he indicated “that’s all I can say”).

In addition to the failings in the pleading (which are reason enough to refuse the application to amend), the Claimant has failed to show that the alleged conspiracy is supported by evidence which establishes that this claim has a realistic prospect of success: see the principles identified in Amersi (para 45 above).

A substantial part of the Claimant’s witness statement dated 13 August 2025 and his Reply to Submissions document (which Mr Ness apparently prepared himself) sought to re-argue contentions that I rejected in the Libel Judgment; a position which Mr Ridding accepted was unsustainable, as I have indicated. During his oral submissions I asked Mr Ridding to take me to the best evidence he had of the pleaded conspiracy. He took me to some Facebook messages from May 2024. The messages are a series of communications between D1, D2, D3 and a further party (not said to be D4). A message of 18 May 2024 referred to working together with “Freddy” (who is said by the Claimant to be D4) and to “searches last night” - presumably internet searches, given the context. A further message that also appears to have been sent on 18 May 2024, said “Freddy has messaged DC Kitto”. Then on 31 May 2024, a message referred to “Freddy” having commented that “nessys” (presumably the Claimant) had gone quiet.

In this regard, the Claimant also relies on two emails sent by D4 to DC Kitto of Surrey Police on 9 April 2024, which assert that the Claimant is in breach of his bail conditions in respect of D1 – D3 if he is behind a “sock account” (an account with a fake online identity) that she refers to.

Mr Ridding said these materials showed that D4 was in contact with D1 – D3 and that she was providing information to Surrey Police that was demonstrably false and which was aimed at worsening the Claimant’s situation. Even if I were to make a number of assumptions in the Claimant’s favour for these purposes, namely, that these messages are genuine, that D4 is “Freddy” and that D4 had some contact with D1 – D3 in the period April – May 2024 (propositions that in some respects at least D1 – D4 do not accept), this material does not significantly assist in making out the case which the Claimant wishes to pursue. It is also quite telling that this limited material is said to be the high point of the evidence that he has to show the alleged conspiracy. First, these messages and the conduct they refer to, all come from a period of at least a month after the Claimant’s arrest and thus they could not have played any part in bringing it about or conspiring to do so. Secondly, D4’s emails to DC Kitto are at least equally consistent with an expression of genuine concern for the welfare of D1 – D3 in light of the contents of the account she highlights. These emails do not begin to show that several weeks earlier she was involved in making deliberately false allegations to Surrey Police in order to have Mr Ness arrested. Further, Mr Ridding did not explain the basis for his assertion that the contact D4 had with DC Kitto at this stage involved her making allegations that were “demonstrably false”. In short, the highest Mr Ridding could put this material was (he said) that it showed D4 was trying to make things worse for the Claimant during this period after his arrest; he did not suggest it afforded direct evidence of a conspiracy that had brought about his arrest.

The weakness of the Claimant’s evidential position was further underscored by the overstated and plainly unmeritorious points that Mr Ness identified in his documentation. I will simply give a flavour of these (since Mr Ridding did not suggest they carried the probative force of the material I have just discussed):

A further reason to refuse the amendment application so far as D2, D3 and D4 are concerned is that the CPR 19.2 criteria for adding a party are not established (paras 48 – 50 above). So far as limb (a) is concerned, the addition of these parties would not assist the Court to resolve all matters in dispute in the proceedings as there will be no live claims against D1 for the reasons I have addressed earlier. Furthermore, it is not “desirable” to add these parties in light of the pleading and evidential deficiencies I have identified, meaning that no proper basis to add claims against D2 – D4 has been shown. So far as limb (b) is concerned, even if there is an issue between the Claimant and each of D2 – D4 (in terms of whether they were parties to the alleged unlawful means conspiracy), that issue is not connected to matters already in dispute in the proceedings, given that there will be no live claim against D1. Furthermore, it is not “desirable” to add these parties for the reasons I have identified in relation to limb (a).

For all these reasons, I refuse the Claimant’s applications to amend the claim to add the conspiracy claim and to join D2 – D4 to the proceedings for the purposes of this claim.

As I have indicated, D4 accepts that she processed the Claimant’s personal data in relation to the England Athletics emails (para 37 above) (and even if she did not do so, these contentions would plainly be arguable). Whether the Claimant can establish his data protection claim on the basis of a breach of Article 5(1)(a), 5(1)(d), 5(1)(e) and/or Article 10 UKGDPR, including whether D4 can show one or more of the lawful bases for processing his data that I have summarised at para 37 turns on questions of disputed fact that it is not possible for the Court to form a firm view on at this stage, other than I accept that the Claimant’s allegations are not so evidently weak that I would refuse permission to amend on that basis.

I mention for completeness that Dr Joseph advanced an argument which D4 had also put forward in her earlier documentation, that the England Athletics emails had a special status in data protection terms because they each amounted to a “protected disclosure” within the meaning of Part IVA of the Employment Rights Act 1996 (“ERA”). I do not see how the definition of a “protected disclosure” in this statute assists D4. Under the ERA, a worker has the right not to be subjected to any detriment on the ground they have made a protected disclosure (section 47B) and an employee is treated as unfairly dismissed if the reason or principal reason for their dismissal is that they made a protected disclosure (section 103A). By contrast, D4 is not relying on her position as a worker or an employee or bringing such claims; rather, she is seeking to defend a data protection claim brought against her. So far as I am aware (and I have been shown nothing to the contrary), the ERA definition of “protected disclosure” does not have an application outside of its employment related context.

In light of the clarification as to the nature of the Jameel form of abuse that was provided by Lord Reed in Mueen-Uddin (para 74 above), I prefer to take account of the absence of any pleaded loss or damage in respect of the data protection claim when considering the CPR 19.2 criteria, which I now turn to.

As regards limb (a) of CPR 19.2 (para 49 above) the addition of D4 to the proceedings will not assist the Court to resolve any matter that is currently in dispute, as the data protection claim against D1 is to be struck out. However, I accept that CPR 19.2 can be used to substitute one defendant for another where, for example, it emerges that a claimant sued the incorrect defendant in respect of the wrongs relied upon. Thus, on the view most favourable to the Claimant it might be said there is a dispute in the proceedings as to whether the sending of the England Athletics emails involved a breach of his data protection rights and adding D4 to the proceedings would enable the Court to resolve that issue.

However, in any event, I am firmly of the view that it is not “desirable” to add D4 to achieve that end. First, in light of the conclusions I have reached above, all existing claims are to be struck out and absent amending the proceedings to add D4, the proceedings will be at an end. Secondly, the proceedings were commenced in the High Court because this was required for the defamation claim, which was subsequently dismissed on 15 July 2025 in the circumstances I have explained. The data protection claim as currently pleaded is on any view a very modest one: the APC contains no Particulars of Damage in relation to this claim (para 24 above) and Mr Ridding did not suggest how this would be amended, what loss or damage would be relied upon if this claim proceeded or why this has not been pleaded so far if it is relied upon. In short, there is no good reason or basis for a free-standing data protection claim against D4 to be pursued in the High Court. Thirdly, I bear in mind that the proceedings are at an early stage so far as a data protection claim against D4 is concerned. An amended Claim Form would need to be prepared and served. The APC requires significant further amendment before it is ready to be served and, accordingly, matters are still some way from the stage at which a Defence would be filed. By way of examples, a further opportunity for amendment would be required to enable the Claimant to delete all the other pleaded claims; and in relation to the data protection claim: to remove the references to D1, to remove the remaining reference to defamation (para 21 above) and to plead loss, damage and/or distress if relied upon.

I have also considered whether the CPR 19.2 application should be granted on the basis that D4 is added to the claim and it is then transferred to the County Court. However, given the very early stage that matters are at in terms of this claim (an amended Claim Form required and no finalised amended Particulars of Claim ready for service, as I have explained above) and its very modest nature (no pleaded particulars of loss, damage or distress), I do not consider that the overriding objective supports this course. It will be a matter for the Claimant whether he decides to bring separate proceedings by way of a properly formulated data protection claim against D4 in the County Court.

As I have explained, even if the CPR 19.2(a) criteria were satisfied, I would have a case management discretion as to whether to add D4 to the claim (para 48 above). For the reasons I have identified in the previous two paragraphs, I would in any event determine that it is not in the interests of justice or in accordance with the overriding objective to do so.

As regards the CPR 19.2(b) criteria (para 50 above), an issue has been identified between the Claimant and D4 in terms of his data protection claim. However, as the claims against D1 are to be struck out, that issue will not be connected to matters that are already in dispute in the proceedings. Further or alternatively, it is not desirable to add D4 for the reasons I have already identified in respect of limb (a). In the yet further alternative, and for essentially the same reasons, I would not in any event exercise my discretion to permit the Claimant to add D4 to the proceedings.

Accordingly, I refuse the Claimant’s applications to amend his claim and to add D4 to the proceedings for the purposes of pursuing a data protection claim against her.

For the reasons set out at paras 75 – 90 above, there are no reasonable grounds for bringing the false imprisonment claim against D1 and I strike out this claim pursuant to CPR 3.4(2)(a).

For the reasons set out at paras 91 – 97 above, there are no reasonable grounds for bringing the data protection claim against D1 and its pursuit would be an abuse of process. Accordingly, I strike out this claim pursuant to CPR 3.4(2)(a) and/or (2)(b).

For the reasons set out at paras 98 – 100, I refuse the applications to amend the claim to add a claim in false imprisonment against D2 – D4 and for them to be added to the proceedings for this purpose.

For the reasons set out at paras 101 – 110, I refuse the applications to amend the claim to add a new claim of conspiracy against D1 – D4 and for D2 – D4 to be added to the proceedings for this purpose.

For the reasons identified at paras 111 – 119, I refuse the applications to amend the claim to add a data protection claim against D4 and to add her to the proceedings for this purpose.

Accordingly, it follows that the proceedings will be struck out.

I will give the parties an opportunity to make concise written submissions on any consequential matters, including costs. I invited counsel to agree a timetable in relation to the provision of these submissions. However, I only received responses from the Claimant and D1, both of whom proposed four weeks from when judgment is handed down for the filing of submissions. I have not adopted this proposal. Four weeks is excessive, not least as counsel have already had the draft judgment for several days. Furthermore, I consider it will be beneficial to provide sequential submissions in relation to any applications for costs.