CXX v DXX

This is an application for permission to appeal against an order of Master Roberts dated 27^th January 2012 striking out parts of the defence and granting summary judgment on the claim. The hearing before me on 11^th May 2012 was listed with the appeal to follow if permission was granted. For convenience, and by agreement of the parties, the hearing proceeded as if it were the full hearing of the appeal, and I reserved judgment.

The appellant is the defendant in a claim for damages for trespass to the person and harassment. The claim arises out of events which have already been the subject of a criminal trial in the Crown Court in which the defendant was convicted of two counts of attempting to administer poison to the claimant with intent to procure a miscarriage. He was sentenced to 6 years imprisonment. His application to the Court of Appeal (Criminal Division) for leave to appeal against conviction was refused by the full court on 14th July 2010. The claimant relies upon those convictions in her claim for damages for psychiatric injury and consequential loss and damage. The defendant pleads in his defence that the convictions were wrong, asserting that the claimant’s evidence in the criminal proceedings was false. He counterclaims damages for malicious prosecution.

The Master struck out as an abuse of process, pursuant to CPR 3.4, the paragraphs of the defence which contested the convictions. He granted the claimant summary judgment, pursuant to CPR 24.2, for damages to be assessed and costs, on the basis that the defendant has no real prospect of successfully defending the claim. He ordered that the defendant make an interim payment in respect of damages in the sum of £17,000, and an interim payment in respect of costs in the sum of £15,000.

At the forefront of the defendant’s case before the Master was the fact that the defendant has applied to the Criminal Cases Review Commission (“CCRC”) to investigate and review his case. The main thrust of his case before the Master, and before me, was that subsequent to the Court of Appeal hearing, further evidence has emerged which casts doubt on the credibility of the claimant. Her credibility was central to the issues the jury had to decide. It is submitted that the defendant should not be shut out from challenging the convictions, and certainly not before the outcome of the application to the CCRC is known.

For completeness I should add that it is part of the claimant’s pleaded case, in support of the claim for harassment, that following the defendant’s conviction and imprisonment he conspired with another prisoner to fabricate a retraction of the claimant’s evidence. This was, apparently, uncovered by a national newspaper. The plan was to steal the claimant’s mobile phone and send a text message to her employer, as if from the claimant herself, saying that she could not live with her lies any more and that she now admitted that it was she who put the drugs in her drinks and had lied to the police and to the court. I was told at the hearing that the defendant has recently been convicted in the Crown Court of conspiracy to pervert the course of justice in relation to this incident, and is presently awaiting sentence. I make it clear, as I did at the hearing, that I have disregarded this conviction in deciding the issues in this appeal.

I remind myself that the test for granting permission is whether the court considers that the appeal has a real prospect of success or that there is some other compelling reason why the appeal should be heard. The test for whether an appeal should be allowed is whether the decision of the Master was wrong, or unjust because of a serious procedural or other irregularity in the proceedings.

I have had the advantage of written and oral submissions from Mr Hunjan QC on behalf of the defendant and from Mr Davison on behalf of the claimant. For reasons which will become clear, the focus of the argument before me was rather different than before the Master because of recently discovered relevant authority.

The Master heard the claimant’s application on 13^th January 2012 and handed down a comprehensive reserved written judgment dated 25^th January 2012. It runs to fifteen pages and carefully recites the materials he considered, the relevant contentions in the pleadings and the relevant evidence, before setting out his findings and conclusions.

The relevant facts may be briefly stated. The claimant was a medical secretary working at a hospital. The defendant was a consultant physician at the same hospital. At around Christmas 2007 they began a sexual relationship. She became pregnant. She informed the defendant of that fact on 22^nd January 2008. He tried to persuade her to have an abortion. She refused. She alleges that on three occasions he administered or attempted to administer drugs to her in order to procure an abortion. She alleges he did so by putting the drugs into a morning cup of tea on the first occasion, into a cup of coffee at Starbucks on the second occasion, and into a bottle of orange juice on the third occasion.

The defendant was convicted in the Crown Court of attempting to administer poison on the second and third occasions. He was acquitted of administering poison on the first occasion. There was also a count of procuring poison to be used with intent to procure an abortion. The jury failed to reach a verdict on that count.

The present argument focuses on count 3, the Starbucks incident. The Court of Appeal gave a very full judgment on 14^th July 2010, refusing leave to appeal. At paragraph 15 of the judgment Thomas LJ sets out the evidence the claimant gave at trial on the Starbucks count. The prosecution case was that he put poison into a small cup of coffee he bought for her and which was awaiting her on her arrival at Starbucks. She noticed the lid was stained and pretended to sip the coffee. Later, when she was alone in a taxi, she poured the contents of the cup into a bottle for safekeeping. The cup and the lid were examined forensically and found to contain Diclofenac, a component of Arthrotec, used to treat pain and inflammation in rheumatic disease. The bottle was found to contain Methotrexate, a drug used for treating tumours and arthritis but which can also be used to procure a miscarriage.

There is no reason to doubt (and it is part of the defendant’s case) that the claimant had been consistent in saying to the police in her witness interviews and/or witness statements, as well as in her evidence at trial, that she had only pretended to sip the coffee on this occasion.

In the Particulars of Claim the Starbucks episode is pleaded, at paragraph 3 as follows (with emphasis added):

“On Thursday 7^th February 2008, the defendant gave the claimant a cup of coffee from Starbucks containing drugs. The claimant drank a small amount of the coffee.”

At paragraph 10 it was pleaded:

“The surreptitious administration of noxious drugs to the claimant on the two occasions she actually drank what she was given (2 February and 7 February)….”

At paragraph 11 it was pleaded:

“Further, the two poisoning instances, the attempted poisoning and the attempted conspiracy……”

Thus the pleading asserted, contrary to her evidence at trial, that she had actually drunk some of the coffee in the Starbucks incident, and had not merely pretended to sip it.

This inconsistency, it is contended, is capable of undermining her credibility in a fundamental way, to the extent that the Court of Appeal Criminal Division might have been - and might still be - prepared to accept it as fresh evidence and treat it as rendering the conviction unsafe. This is because the crucial issue at trial was the claimant’s credibility. As Thomas LJ said, at paragraph 22:

“ It is clear from what we have said that the principal task of the jury was to determine, as between [CXX] and the [defendant], who was telling the truth and whether they could be sure on all the evidence before them that the prosecution case was correct and that therefore the [defendant’s] account must be untruthful.”

The defendant’s pleaded defence effectively repeats the defence he ran unsuccessfully at trial at the Crown Court. I shall refer to it more fully in due course. For present purposes it is sufficient to say that he denied putting any drugs into her drinks with criminal intent. His case was that she was undecided and inconsistent over an abortion. It was she who raised the possibility of administering drugs to herself for that purpose. He obtained Methotrexate tablets and they arranged to meet at Starbucks. His intention was to demonstrate to her that this method was impractical and unpleasant, and he did so.

At paragraph 4 of the defence the defendant expressly denied that the claimant drank a small amount of coffee in the Starbucks incident, as alleged in the particulars of claim:

“The claimant maintained previously, and gave evidence on oath, that she had not drunk any of the coffee and this assertion is untruthful.”

The defence was dated 29^th July 2011. On 4^th November 2011 the particulars of claim were amended to expand upon the particulars of injury and financial loss, and to include a claim for aggravated and exemplary damages. No amendment was made to the paragraph setting out the Starbucks incident.

On 2^ndDecember 2011 the claimant issued the present application to strike out and for summary judgment. On 4^th January 2012 the defendant’s solicitors wrote to the claimant’s solicitors detailing at length this discrepancy between the pleading and the claimant’s evidence at trial and its alleged significance. On 10^th January 2012 the defendant’s solicitor made a witness statement in opposition to the claimant’s application to strike out. She drew attention to this discrepancy in the particulars of claim, and to the fact that it formed part of the application to the CCRC, by way of supplementary grounds. She exhibited witness statements from the solicitor who acted for the defendant at the criminal trial, and from Queen’s Counsel who acted for him on the appeal, both of whom asserted that the claimant’s change of account was potentially very significant.

In the light of this witness statement, on 11^th January 2012 the claimant made a witness statement explaining that what appeared in the particulars of claim was an error and that her evidence remained, as it had been at the Crown Court and to the police all along, that she only pretended to sip the coffee.

The claimant’s solicitor also made a witness statement, dated 12^th January 2012, explaining that the paragraph in question in the particulars of claim was drafted on the basis of his understanding of the claimant’s instructions, but that on revisiting the incident with her she has clarified the matter. She had not accurately proof read the particulars before signing them. The certificate of truth was signed not by the claimant but by her solicitor. Subsequent to the hearing before the Master, permission was sought and granted to re-amend the particulars of claim, “correcting” the pleading of the Starbucks incident. Nothing turns on this procedurally.

The Master set out at paragraphs 31-34 of his judgment his findings and conclusions on the application to strike out and the application for summary judgment. He struck out the relevant paragraphs of the defence which challenged the convictions on the basis that it was an abuse of process for the defendant to seek to relitigate his two convictions in the defence. He accepted the claimant’s submission that an application to the Criminal Cases Review Commission should not be equated with an appeal to the Court of Appeal.

The Master granted summary judgment because the convictions, together with the psychiatric evidence relied upon by the claimant, showed that the defendant had no real prospect of successfully defending the claim for damages for trespass to the person and/or intentional infliction of injury on the two occasions in respect of which convictions had been recorded. The only additional argument advanced by the defendant against summary judgment was that the application to the CCRC was pending.

Since the hearing before the Master, further relevant authority has come to light through the diligent researches of counsel for the claimant, Mr Davison. It turns out that there are two apparently conflicting first instance decisions in the High Court in cases where a victim of crime sought to prevent the defendant from relitigating a criminal conviction for the very same matter. Mr Hunjan QC, for the defendant, submits that I should follow the later of these decisions and decline to uphold the Master’s decision to strike out as an abuse of process the pleading which challenges the convictions. Mr Davison invites me instead to follow the earlier decision and to uphold the striking out. Alternatively, he submits that the Master was in any event correct to grant summary judgment on the basis that the defence had no realistic prospect of success. Mr Hunjan submits that it would be wrong in principle to grant summary judgment when there is a significant factual issue affecting the claimant’s credibility on a central matter, which may yet lead the CCRC to refer the case back to the Court of Appeal.

It is therefore necessary to examine the two authorities with care. First in time is the decision of Jacob J (as he then was) in Brinks Ltd v Abu-Saleh [1995] 1WLR 1478. The point arose on the hearing of the plaintiff’s summons for summary judgment under RSC Order 14 against two defendants who had been prosecuted to conviction in the notorious Brink’s-Mat gold bullion robbery at the plaintiff’s premises. Of fifty-seven such defendants, only two contested claims for summary judgment. The application under RSC Order 14 was made late in the day but the judge held that in principle that made no difference. The judge referred to section 11 of the Civil Evidence Act 1968 which provides:

“(1)

In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom… shall (subject to subsection (3) below), be admissible in evidence for the purpose of proving, where to do so is relevant to an issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings.

(2)

In any civil proceedings in which by virtue of this section a person is proved to have committed an offence by or before any court in the United Kingdom…(a) he shall be taken to have committed that offence unless the contrary is proved….”

Jacob J said, at page 1482 B-F:

“So each of these defendants shall be taken to have committed the offences of which they were convicted unless the contrary is proved. For the defendants to succeed they need more than simply a retrial in the civil action on essentially the same evidence as was called at the criminal trial. A hope that the civil judge will take a different view from a jury who found the case proved beyond a reasonable doubt does not justify a civil trial relitigating the same issues as were tried criminally. A trial on such a basis would be an abuse of process. The defendants have already had one full opportunity of contesting those issues. Moreover they have had such an opportunity when the legal presumptions and rules of evidence were as high as they could be in their favour. To relitigate the matter now they need to show at least that new evidence not called at the criminal trial will be called at the civil trial. Such evidence must not only be new but must “entirely change the aspect of the case.” That this is so is apparent from Hunter v Chief Constable of West Midlands Police [1982] AC 529, where convicted criminals were not permitted to relitigate matters determined against them in criminal proceedings… In the case of Order 14, therefore, a defendant cannot show that there is an issue which ought to be tried if he has lost that issue in a criminal trial and is simply seeking its relitigation on essentially the same evidence. His defence would be an abuse of process.”

Applying that statement of principle to the two defendants before him, Jacob J concluded that each was simply putting forward the same defence as that which had been rejected by the jury. Accordingly the plaintiffs were granted summary judgment under Order 14.

The second and conflicting High Court decision is J v Oyston [1999] 1WLR 694. The defendant had been convicted in the Crown Court of raping and indecently assaulting the plaintiff. His appeal against conviction had been dismissed. She brought an action against him for damages for indecent assault and rape, relying upon the convictions. He served a defence and sought to adduce evidence to discredit the plaintiff, having failed on similar evidence to overturn his conviction on appeal. The plaintiff applied to strike out the relevant part of the defence under RSC Order 18 rule 19, or pursuant to the inherent jurisdiction of the court, on the grounds that to allow the defendant to relitigate the issue of guilt was an abuse of process and that the defence disclosed no reasonable grounds of defence and was vexatious.

Brian Smedley J refused to strike out the defence, and declined to follow the decision of Jacob J in Brinks Ltd. He took issue with the suggestion that the decision of the House of Lords in Hunter provided support for the proposition that it would be an abuse of process to permit a defendant to relitigate his conviction. At page 698 E-G he said:

“As Lord Diplock pointed out, section 11 makes the conviction prime facie evidence that a person convicted did commit the offence of which he was found guilty, but it does not make it conclusive evidence (as does section 13). The defendant is permitted by the statute to prove the contrary if he can. It is that distinction between the position of a plaintiff who wishes to litigate again the issue which has been raised in a criminal trial (as was the case with Hunter and the other Birmingham Six plaintiffs) and the position of a defendant who wishes to have reheard by a judge the issues which have been raised in the criminal trial at the end of which he was convicted and to seek to persuade a judge to take a different view from that of the jury.”

Brian Smedley J went on to consider the decision of Jacob J in Brinks Ltd in the light of other cases including the unreported decision of the Court of Appeal in Nawrot v Chief Constable of Hampshire Police (The Independent, 7^th January 1992). The issue in that case was whether a finding of fact made in criminal proceedings in favour of the plaintiff prevented the defendant from alleging in his defence that the arrest of the plaintiff was lawful. The plaintiff contended that the defendant was seeking relitigate an issue which had been previously decided in the plaintiff’s favour by a court of competent jurisdiction, namely the Portsmouth Magistrates’ Court. In the Court of Appeal Woolf LJ accepted that a conviction recorded against a defendant can be relied upon if that defendant then initiates proceedings on the same facts. The conviction can be relied upon to have the proceedings dismissed as an abuse of process. However, Woolf LJ said that it would be difficult to envisage circumstances where it could be appropriate for a court to come to the same conclusion about a defendant in civil proceedings as was come to in Hunter’s case about the plaintiff’s conduct in initiating civil proceedings. At page 700 H Brian Smedley J said:

“With that comment I entirely agree. It is, of course, the answer to the present summons. Whilst it may be unwise to say that there can never be an abuse where the subsequent civil proceedings are brought against and not by the subject of the criminal proceedings, nonetheless, on the present facts I have no doubt that to use the doctrine of abuse of process so as to prevent the defendant from having reheard, with such new evidence as he seeks to adduce, the issue of his guilt would be to cause manifest unfairness.”

It is important to note that in Oyston there was no application for summary judgment under Order 14, as there had been in Brinks Ltd.

These two conflicting decisions are helpfully analysed in Phipson on Evidence (17^th Edition) at paragraph 43-89. The learned editors submit that, on balance, the view of Brian Smedley J should generally be preferred:

“If a defendant is prepared to testify that he did not commit the offence alleged it should not be an abuse of process for him to assert what he believes to be true in proceedings that he did not initiate. A different view may be taken, however, if there is some basis for concluding that the defendant does not believe in his own innocence and he merely raises the matter in order to prolong proceedings, or to put witnesses through the discomfort of having to repeat their evidence.”

Mr Hunjan QC makes the strong point in the present case that the appellant took his complaint to the CCRC, in the hope of clearing his name, long before the claimant commenced these proceedings. It is not a proper inference, therefore, that the defendant is acting in bad faith in defending the proceedings, either to draw the matter out or simply to put the claimant through the discomfort of having to repeat her evidence. He submits that the discrepancy in the claimant’s pleading of the Starbucks incident requires proper investigation in cross-examination. It makes the claimant’s credibility very much still a live issue.

Mr Davison submitted powerfully that the issue of abuse has to be viewed against the background of the overriding objective in the civil procedure rules. It would not be “just” to subject the claimant to the stress and trauma of a further trial on exactly the same issue as a jury has already decided. It would be wasteful of expense. To give the defendant another trial for the same issue would be to allot to him a disproportionate share of the court’s resources. It would also open up the theoretical possibility of two conflicting decisions on the same issue, one by the jury and one by a judge.

Mr Davison further submitted that some support for the proposition that it may be an abuse of process for the same defence to be relitigated may be found in the decision of the House of Lords in Johnson v Gorewood and Co (No 1) [2002] 2 AC 1. That case concerned the rather different situation of abuse of process by bringing a claim in a second action which could and should have been brought in a previous action. Lord Bingham identified the underlying interest as finality in litigation and that the parties should not be twice vexed in the same matter. He said, at page 31A-B:

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party”.

Although there is an overlap, the House of Lords in that case was considering a very different situation. The issue was whether it was an abuse for a plaintiff to bring a claim which he could have brought in previous civil proceedings. In the event the House of Lords held that it was not an abuse of process case at all. Here the issue is whether it is an abuse for a defendant in civil proceedings to challenge the claimant’s case by contesting his criminal conviction for the same matter. That is significantly different.

There appears to be no Court of Appeal authority, arising from a criminal trial, in which these conflicting first instance decisions have been considered together. However, my own researches have uncovered another case not cited at the hearing, mentioned in Cross and Tapper on Evidence (11^th edition) at page121, McCauley vVine [1999] 1WLR 1977. The Court of Appeal in that case declined to uphold the granting of Order 14 summary judgment in a road traffic damages claim where the defendant had been convicted of careless driving. The defendant’s solicitors had commissioned a report from a consulting engineer and traffic accident investigator which asserted that the accident was not the fault of the defendant and that much of the evidence called by the prosecution in the magistrates’ court could not be sustained. The Court of Appeal distinguished Hunter on the basis that section 11(2) of the Act provided a defendant in a road traffic accident case with the clearest mandate to attack his earlier conviction “provided he has some good cause for doing so”. However, referring to Brinks Limited, Potter LJ said:

“I do not seek to suggest that, upon the state of the issues and evidence (“essentially the same evidence”) which confronted Jacob J in that case, he was other than correct to give summary judgment against the defendants concerned. However, I consider that he went too far in stating that the abuse of process/new evidence tests propounded in Hunter’s case apply equally to a defendant in a case of this kind.”

Oyston was not considered by the Court of Appeal in McCauley. It was reported only after the appeal had been argued (although before judgment was given).

In my judgment the starting point must be that section 11(2) of the Civil Evidence Act 1968 undoubtedly gives a defendant the right to challenge a conviction by showing on the evidence, if he can, that the conviction was wrong. It cannot be the case that it is automatically an abuse of process to seek to do that which the statute permits him to do. As ever, it all depends on the circumstances.

In the present case I am satisfied that it is not a proper inference that the defendant seeks to challenge these convictions only to vex the claimant and put her through the mill again. In principle, it would not be right to strike out as an abuse of process the pleading which challenges the convictions. Had the Master been made aware of the decisions in Brinks Ltd and in Oyston, and the commentary in Phipson, it may well be that he would not have acceded to the application to strike out for abuse. However, that was only one of the applications before the Master. It by no means follows that because a defendant is entitled to try to prove his conviction was wrong, he avoids the ordinary requirement of showing that he has some realistic prospect of doing so, enabling him to resist an application for summary judgment.

I turn, therefore, to the claimant’s application before the Master for summary judgment under CPR 24.2. Mr Davison submits that even if it is not an abuse of process for the defendant to challenge his convictions in these proceedings, the Master was still correct to grant summary judgement on the basis that the convictions, together with the medical evidence, showed that the defendant had no real prospect of successfully defending the claim. Mr Davison submits that the probative force of the convictions is so overwhelming that it is fanciful to suggest that the defendant could discharge the burden upon him, under section 11(2) of the Civil Evidence Act 1968, to prove that he did not commit the offences.

Once again, fresh authority was cited at the hearing of the appeal which was not cited to the Master. In his skeleton argument Mr Davison draws attention to the decision of the Court of Appeal in Stupple v Royal Insurance Co Ltd [1971] 1QB 50, and the difference of opinion there between Lord Denning MR and Buckley LJ as to the practical effect of the presumption in section 11(2) of the Civil Evidence Act 1978. Lord Denning’s view was that the conviction is a “weighty piece of evidence of itself”. Buckley LJ’s view was that section 11(1) was merely a trigger for the presumption without any evidential weight in itself. Again, the learned editors of Phipson (17^th edition) address this conflict (at paragraph 43-88) suggesting that the view of Lord Denning is to be preferred. The learned editors of Cross and Tapper onEvidence express a contrary view. This conflict was considered by Moore-Bick J (as he then was) in Phoenix Marine Inc v China Ocean Shipping Co [1999] 1 All ER 138. At paragraph 143 J he said:

“I prefer Lord Denning MR’s view, essentially for the reasons suggested in Phipson…In particular, once the conviction is rendered admissible as evidence of the commission of the offence, I see no reason why the weight to be attached to it should not be a matter for the trial judge, as with any other piece of evidence.”

A contrary view had been taken by Stirling J in Wright v Wright (1971)115 Sol Jo 173, in the hearing of a divorce suit where the husband had been convicted of rape but was still denying it. He preferred the approach of Buckley LJ.

I too prefer the approach of Lord Denning MR, for the reasons given by Moore-Bick J in Phoenix. These convictions in the present case must be treated as weighty evidence in themselves, and all the weightier in the light of the unsuccessful criminal appeal.

It is common ground that the test to be applied on a summary judgment application is whether the claim or defence, as the case may be, has any realistic prospect of success. The definitive guidance on this was given by the House of Lords in Three Rivers v Bank of England (No. 3) [2001] UKHL 16 [2003] 2 AC 1. In particular, at paragraph 158, Lord Hobhouse said:

“The important words are ‘no real prospect of succeeding’. It requires the judge to undertake an exercise of judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a ‘discretionary’ power, i.e. one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is ‘no real prospect’, he may decide the case accordingly… The judge is making an assessment not conducting a trial or fact-finding exercise. Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.…The criterion which the judge has to apply under CPR Part 24 is not one of probability; it is absence of reality.”

Mr Davison accepted, during the course of argument, that the mere fact of a conviction would not inevitably entitle a claimant to summary judgment in every case where the crime of which the defendant has been convicted is the subject matter of the claim. He accepts that there may be legitimate reasons to challenge the circumstances in which the conviction was recorded; for example a guilty plea under pressure or in order to take responsibility for someone else’s crime. In the present case, however, he submits that these are convictions after a fully contested trial which have been upheld on appeal, based not only on the claimant’s evidence but on other supporting evidence and circumstances, amounting in the judgment of the Court of Appeal to a “formidable” case against him. It is submitted that in reality there are no new grounds and there is no new evidence to undermine the claimant’s credibility when viewed in the round.

Mr Hunjan submits that the change of account in the claimant’s own pleading in relation to the Starbucks incident affords a proper basis for casting doubt upon the claimant’s credibility on a central issue, or at the very least demands further investigation at a trial. He points out that although the claimant’s solicitor in his witness statement suggests that the wording of the relevant pleading reflects a misunderstanding of the claimant’s instructions, the solicitor does not suggest that the claimant never actually gave those instructions. Mr Hunjan comments on the absence of disclosure of a proof or draft proof from the claimant demonstrating that there has been merely a misunderstanding or an error of transcription. Mr Davison made it clear that the claimant does not propose to waive privilege. I note in passing that in the psychiatric report appended to the particulars of claim there is extensive reference to the claimant’s unsigned witness statement and (at paragraph 6.8 of the report) reference specifically to paragraph 54 which deals with the Starbucks incident, albeit not the issue of whether the claimant actually drank or only pretended to drink some of the coffee.

It is clear from the Master’s judgment that he must have made some evaluation of the “new” material arising from the factual discrepancies in the claimant’s account. It is implicit that he attached little or no significance to it, and certainly not as much as the defendant’s counsel and solicitor in the criminal proceedings.

I have already identified the evidence adduced by the defendant in opposition to the claimant's application. It deals almost exclusively with the Starbucks change of account point. I should mention, however, that the defence sets out over several pages, under the heading “defendant's case”, a narrative of the defendant's case at trial, criticisms of the prosecution case and matters said to bear on the claimant’s credibility. For example, reference is made at paragraph 3(xv) and (xvi) to fresh evidence since the trial arising from an interview which the claimant gave to a newspaper. However, this was the very same “fresh evidence” which the Court of Appeal was invited to consider, and which it assessed and rejected as being incapable of undermining the safety of the convictions. Another assertion in the defence is that the convictions on counts 3 and 4 were inconsistent with the acquittal on count 2. That was another ground of appeal which was considered and rejected by the Court of Appeal. The Master was quite entitled to conclude, as I too conclude in reviewing his decision, that matters of that kind could not begin to raise any real prospect of proving that the convictions were wrong. The only question is whether the inconsistency in the claimant’s account over the Starbucks incident gave rise to any real prospect of doing so.

In order to make an informed assessment of the potential significance of this change of account, it is necessary to look in a little more detail at the defendant’s pleaded case and his case at trial in respect of the Starbucks incident.

At paragraph 15-16 of the judgment of the Court of Appeal, Thomas LJ set out the defendant’s case on this point as follows (with emphasis supplied):

“The [defendant’s] evidence in relation to that is that he had met her after his return from the United States and had told her he get Methotrexate. She suggested meeting and he went along to the meeting, putting Methotrexate into the small cup of coffee before she arrived. He told her when she arrived he had put it into the cup and asked her about it. He tasted it andshe tasted it. It tasted terrible. Yellow particles floated to the top. His case was that he did not have an opportunity to finish the conversation in which he would have attempted to tell her that the course of using Methotrexate to bring about a termination of her pregnancy was not practicable and was horrible, but she had to leave and he had to leave because they had prior appointments. He said he had acquired Arthrotec, that is the drug that contains Diclofenac, for his own purposes as he uses this to relieve cramps he obtained when climbing. As he was going to a meeting from Starbucks, he asked her to take the bag back to the office. He denied putting it into the coffee.”

In his pleading, at paragraph 3(x) and (xi) of the defence, his case in relation to the Starbucks incident is as follows (with emphasis supplied):

“On Wednesday night, 6^th February 2008, the defendant visited the claimant at her home and informed her that he had obtained Methotrexate tablets. The claimant suggested that they met up at a Starbucks shop on the following day to see whether or not it was possible to put the Methotrexate into the drink and take it in that way. On Thursday 7^th February 2008 the claimant and the defendant met up as arranged. The defendant had placed Methotrexate in the smaller of two coffee cups and told her that he had done so. He described how the distinctive yellow particles could be seen to float on the top making it unpleasant to drink. In the claimant’s presence he sipped the contents of the cup which obviously tasted terrible. He began to explain to the claimant why the abortion could not be done in such a way but could not finish as both he and the claimant were in a rush. He was going to a meeting so the defendant gave her a bag containing Arthrotec tablets so that she could take it back to the hospital for him. The defendant did not put Arthrotec into the coffee; the claimant must have done so at a later stage.”

It is worth noting, comparing those accounts given by the defendant at trial and in his pleading, that, ironically, there is on the face of it a similar discrepancy to that for which the claimant is so strongly criticised. He does not suggest in his pleaded defence that the claimant drank, sipped or tasted the coffee whilst they were together in Starbucks, whereas (according to the narrative set out at paragraph 15 of the Court of Appeal’s judgment) his evidence at trial was that he tasted it and she tasted it as well. This perhaps illustrates the danger of over reliance on textual comparison. It also raises the question of whether pretending to sip from a cup, so the liquid touches closed lips, can be described as “drinking” the contents of the cup.

The high watermark of the defendant’s case, in opposition to the application for summary judgment, was the assertion that this change of account in the claimant’s pleading is a matter of great significance. Leading counsel who represented the defendant on the appeal suggests in his witness statement (paragraph 20) that the claimant now states in her pleading that “she did drink the coffee which contained the drugs” (in fact the pleading says that she drank only a small amount of it) and that if she had she said this to the police “the defendant would have been facing a far more serious charge” (presumably administering rather than attempting to administer poison). I very much doubt this would be so unless she had drunk and swallowed a significant quantity. The defendant’s solicitor at trial in his witness statement, at paragraph 8, says that he formed the view that “this was a serious discrepancy and that it undermined her reliability as a witness of truth; either she was lying in her civil claim or she had lied in her police statements and her evidence on oath at the criminal trial”. This ignores the possibility of mistake rather than deliberate lying.

In the course of his judgment the Master said that he had read with care the witness statement of leading counsel but had to bear in mind that he is not “an impartial witness”. That may not have been the best way of putting it, but the Master was undoubtedly entitled to form his own view of the potential significance of this new evidence, looking at the matter in the round. The Master was entitled to have regard to the explanation for the change of account, as set out in the witness statement of the claimant herself and the witness statement of her solicitor. The Master was not, however, required to make a finding in relation to that explanation, as Lord Hobhouse made clear in passage already quoted from Three Rivers. Even more pertinent, however, is Lord Hobhouse’s reminder that although the wood is composed of trees, some of which may need to be looked at individually, it is the assessment of the whole that is called for. Whilst a measure of analysis may be necessary, it is the “bottom line” that ultimately matters.

The Master was entitled to look at the “bottom line” in evaluating whether there truly was any real prospect that, at a civil trial, the defendant could ever persuade a judge that the convictions were wrong. Although the claimant’s credibility was undoubtedly critical, as the Court of Appeal was at pains to point out, there was independent evidence from three of the defendants colleagues, all doctors, which must have influenced the jury very heavily: see paragraphs 30-34 of the judgment. The Court of Appeal described it as a “formidable case”.

Had this change of account, in the pleading of the Starbucks incident, featured before the Court of Appeal, I cannot see that it would have been regarded by the Court as capable of undermining the safety of the convictions any more than the other arguments which were rejected. In the end the Master had to make a value judgment. Was there an “absence of realism” in the suggestion that the defendant could ever prove that these convictions were wrong? In my judgement the Master was entitled to conclude that such an outcome was wholly unrealistic. I too would reach the same conclusion. In my view the Master was not only entitled to grant summary judgment but was correct to do so.

Mr Hunjan raised the point that there were issues of credibility of the claimant which went to causation as well as to liability. The claimant has a complex psychiatric history, and it could not safely be inferred that the psychiatric condition relied upon, or the whole of it, was attributable to the matters complained of. The answer to this point is that the Master was entitled to conclude at the very least that some psychiatric injury must have been caused, and that was sufficient to found causation and entitle the claimant to summary judgment.

Mr Hunjan further submitted that by ordering an interim payment in respect of damages the Master effectively made determinations in respect of other issues including causation, the credibility of the claimant in respect of quantification issues and the credit to be given for the payments which the claimant has received arising from media coverage. Mr Davison submits in response, correctly in my judgment, that these are not valid points. On the basis of the psychiatric report appended to the particulars of claim the Master was quite entitled to make an assessment of the likely quantum of the award and to order payment of a reasonable proportion of that sum, in accordance with accepted principles. The question of the extent to which, if at all, the claimant will be required to give credit for any sums she has received from the media is a matter for the court to decide at the assessment hearing. Any interim payment carries with it the proviso that all or part of the amount awarded may have to be repaid if it turns out that the damages assessed are less than the amount of the interim payment ordered: see CPR 25.8.

Finally, I return briefly to the relevance of the outstanding application to the CCRC. Mr Hunjan clarified the defendant’s position. It was not contended that, if this appeal were allowed, the claim should be stayed pending the decision of the CCRC whether to refer the defendant’s case back to the Court of Appeal. Rhetorically, however, Mr Hunjan poses the question: if the CCRC does in due course refer the case back to the Court of Appeal, would it not be unfortunate in the extreme if the defendant were deprived, by dismissal of this appeal, of the opportunity to defend the claim fully on the merits?

It may be that the prospects of success of the CCRC application assumed undue importance at the hearing before the Master. But he was undoubtedly correct to draw the distinction he did, for the reasons he gave in his judgment, between on the one hand the solid fact of a pending appeal definitely to be heard, and on the other the mere prospect of a reference back to the Court of Appeal by the CCRC, as to which there could be no certainty and no proper assessment at this stage. In my judgment the decision in Raphael deceased [1973] 1WLR 998 certainly provides no support for the proposition that an application to the CCRC should be equated with a pending appeal. They are two quite different things.

Should the CCRC refer the case back to the Court of Appeal, and should the Court of Appeal quash the convictions, the defendant would no doubt seek redress in the Court of Appeal Civil Division by way of an application for permission to appeal out of time. It is said that if by then the claimant has spent the money she was awarded pursuant to the Master’s judgment, and which she may be awarded on the assessment of damages, the defendant would be left without any effective remedy. However, the speculative possibility of his convictions being quashed cannot, in my judgment, deter this court from upholding the correct decision of the Master on the evidence as it now stands.

It follows from the conclusions I have expressed in this judgment that the Master was correct to grant summary judgment. Had there been no such application, it would have been wrong to strike out as an abuse of process the relevant paragraphs in the defence. However, because I have concluded (as the Master did) that there is no real prospect of a successful defence, it is appropriate that the Master’s order striking out those paragraphs should stand as well.

Consequently, and despite the interesting arguments which have arisen, the appeal has no real prospect of success. In those circumstances the appropriate order is to refuse permission to appeal, and that is the order I make.

When this judgment was sent to the parties in draft, Mr Hunjan QC made written submissions that permission should be granted in relation to the challenge to the Master’s decision on abuse of process. He also submitted that permission should be granted in respect of the summary judgment ground, in the light of the suggestion in paragraph 57 of my judgment concerning the redress which the defendant would no doubt seek in the Court of Appeal Civil Division in the event that the convictions are ultimately quashed. He submits that it cannot have been my intention to put any hurdle in the defendant’s way in that regard, whereas the refusal of permission would preclude a second appeal, to the Court of Appeal.

Mr Davison, in his written response submitted that it would be wrong in principle to grant permission when there had been no real prospect of the appeal succeeding overall. Should the convictions ever be quashed, there would be the possibility of a fresh application to set aside the Master’s order, or (more pertinently) an appeal to the Court of Appeal, despite the refusal of permission, pursuant to CPR52.17 which gives the Court the power to reopen final appeals in very restricted circumstances (cf. Taylor v Lawrence [2003] QB 528).

I have considered Mr Hunjan’s submissions carefully, but I reject them. I note that the grounds of appeal served with the appellant’s notice did not distinguish clearly between the abuse ground and the summary judgment ground of the Master’s decision. The main thrust of the grounds was that the Master had paid insufficient weight to the claimant’s change of account over the Strabucks episode, and to the fact of, and prospects of success in, the application to the CCRC. The reality is that whilst there was partial success before me, on the abuse point, there was no real prospect of the appeal as a whole being allowed, and (as Mr Hunjan concedes) the relevant paragraphs of the pleading remain properly struck out as a consequence of my decision on the appeal against summary judgment. The refusal of permission does not preclude an appeal to the Court of Appeal, pursuant to CPR 57.17. “Appeal” includes an application for permission to appeal: see CPR 52.17(2). The possibility of an appeal therefore remains open should it be necessary to avoid real injustice, in exceptional circumstances, when the defendant has no alternative remedy.

When this judgment was sent in draft to the parties, I invited written submissions on costs. The parties are content that I determine that issue without a further oral hearing. Mr Hunjan accepts that the defendant must pay the costs of the appeal, but submits that as the defendant succeeded in part, on the abuse point, the claimant should receive only a proportion of her costs. Mr Hunjan suggests 50%. He also submits that the claimant should only receive a proportion of her costs of the application before the Master.

Mr Davison submits that there is no good reason to deprive the claimant of any of her costs. The general rule that the loser pays the costs is not to be displaced simply because the winning party has not succeeded on every issue: see Goodwin v BennettsUK Ltd [2008] EWCA Civ 1658, and commentary at 44.3.14 of the White Book. The abuse application before the Master was not challenged on the basis of the relevant authorities which I have analysed in this judgment. Indeed those authorities were not even relied upon by the defendant in his skeleton argument for the appeal. It was the claimant’s counsel who found them and drew them to the court’s attention. There was still a respectable contrary argument. The defendant made no concession in respect of the summary judgment argument. Before the Master, and before me, the claimant has obtained the entirety of the relief she sought.

I accept Mr Davison’s submissions. The abuse argument and the summary judgment argument were intertwined to the extent that it is unrealistic to separate them as distinct issues for the purpose of costs. For example, they were not the subject of separate and distinct submissions even in Mr Hunjan’s skeleton argument for the appeal. It was Mr Davison’s skeleton which isolated them as separate issues for the hearing before me. The relief sought in the abuse application was the striking out of the relevant paragraphs in the defence. They remain struck out despite my conclusion on the abuse issue. It is not a case where the claimant has taken a thoroughly bad point which could never have succeeded. In any event, as Mr Davison points out, the reality is that, at most, the length of the hearing before me was increased somewhat by the abuse argument, and that can have had no impact on counsel’s brief fee, which must be the most substantial element of the costs.

Accordingly the claimant is entitled to her costs in full, both on the appeal and before the Master. The claimant’s costs of and incidental to the appeal have been agreed in the sum of £14,011.20. There will be an order for costs in that sum.