Hersi & Co Solicitors & Anor v The Lord Chancellor

This is an appeal with permission granted by Walker J on 6 December 2017 to the Appellants, Hersi & Co Solicitors and Ahmed Hersi, against the decision of Master Yoxall dated 25 August 2017 striking out their counterclaim and part of their Defence containing allegations of wrongdoing by Legal Aid Agency (‘LAA’) employees and others in judicial review proceedings brought by the Appellants against the Lord Chancellor. The Master’s decision is reported at [2017] EWHC 2888 (QB).

Mr Hersi is the sole principal of Hersi & Co Solicitors (‘the firm’). The Respondent to the appeal and the Claimant in the action is the Lord Chancellor, in his capacity as the LAA, which is the successor to the Legal Services Commission (‘LSC’). By para 7(1) of Sch 4 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, from 1 April 2013 the property, rights, powers, duties and liabilities of the LSC were transferred to the LAA.

The Respondent has filed and served a Respondent’s Notice, dated 28 December 2017. This includes an application under CPR r 52.18(1)(b) to set aside the grant of permission to appeal. Alternatively, the Notice seeks to uphold the Master’s order on grounds additional to those relied on by the Master. I heard the application to set aside at the same time as the appeal itself since the issues raised substantially overlapped.

Mr Hersi appeared on behalf of himself and Hersi & Co Solicitors. The Lord Chancellor was represented by Ms Rushton QC (as she now is).

Until 2010 Hersi & Co Solicitors had a contract with the LSC to provide legal aid services to clients in immigration matters. The contract came to an end on 14 November 2010.

On 15 February 2016 the LAA demanded repayment by the firm of sums that had been paid on account under its legal aid contract. In summary the LAA’s case is that when the contract came to an end, payments on account became repayable pursuant to the terms of the contract, and/or that they are repayable as a result of other contractual provisions relating to how and when cases must be billed, breach of which requires the return of payments on account. Payment was not forthcoming, and so on 2 June 2016 the claim form was issued. The sum claimed by the Lord Chancellor was £396, 785.57 plus interest, which at that date totalled £109, 809.20, meaning that the sum then sought was £506, 594.77. The claim has been set down for trial later this year.

The firm’s contract with the LSC came to an end in the following circumstances. In 2009/2010, the LSC conducted a public procurement exercise for the award of contracts to provide publicly-funded legal services relating to immigration and asylum and mental health work. There were 10, 000 individual bids, and more than 400 applicants for immigration and asylum work. In the London region, Hersi & Co was one of 218 firms who bid for the work. Of these, 127 firms were successful; however, Hersi & Co was not. On 6 July 2010, it appealed against the decision not to award it a contract. On 5 August 2010, that appeal was refused. On 9 November 2010, Hersi & Co commenced judicial review proceedings in the Administrative Court challenging the LSC’s decision not to award it a contract. Subsequently the claim was transferred to the Technology and Construction Court.

Judgment on the judicial review proceedings was given by Coulson J (as he then was) on 31 October 2017: R (Hersi & Co) v Lord Chancellor (as successor to the Legal Services Commission) [2017] EWHC 2667 (TCC). The claim was dismissed, and Coulson J was extremely critical of the way in which the firm had brought the challenge, describing it as a ‘sorry saga’ and as ‘an example of how not to conduct a public procurement challenge’ (para 3, original emphasis). Mr Hersi told me at the hearing that there is to be an application for permission to appeal against Coulson J’s decision.

Turning back to the Lord Chancellor’s claim, on 1 August 2016 Hersi & Co and Mr Hersi filed a defence to the claim. The pleading was entitled ‘Defence of the First and Second Defendants’ but in substance it actually was a Defence and Counterclaim, and that is what I shall call it. It was settled by Mr Hersi himself.

In order to understand the issues arising on this appeal, it is unfortunately necessary for me to set out verbatim and at some length part of the Defence and Counterclaim. The relevant part begins at para 51 and is headed ‘General Defence which is applicable to all the claims’ (sic):

“51.

In 2009/2010 the Claimant had identified underpayment and caused additional payments to be sent to the 1^st Defendant.

52.

The Defendant was rated Category 1 in audits between 2004 and 2010. After that Claimant had changed policy without any change of the contract and decided to reclassify what was regarded as extremely acceptable to very unacceptable. This was due to change of government policy.

53.

There was agreement for the Defendant to re-enter data into the data base and send files for assessment where exceptional threshold was reached. The First Defendant intended to do this when his other litigation against the Claimant concluded. However, that other litigation was delayed by the Claimant by six years by providing a fraudulent evidence in that other litigation.

54.

Between 2004 and 2010 the 1^st Defendant held a contract with the Claimant (then LSC, Now LAA, SoS, Lord Chancellor and MOJ) to provide publicly funded legal services. This contract was worth up to £430 000.00 a year to the 1^st Defendant. In January 2010 1^st Defendant submitted a tender for a new contract, in essence to renew the existing contract. That tender was worth up to £1.7 million a year and up to £3 million over a three-year period (2010 to 2013). In June 2010 the LAA assessed 1^st Defendant’s tender as being unsuccessful because the bid (tender) was defective/deficient. To be more precise it was alleged that the 1^st Defendant’s tender application form was about 1% incomplete. In November 2010 the 1^st Defendant commenced legal action (Judicial Review) against the Claimant in the Administrative Court (hereinafter the “other litigation”). That other litigation has now been transferred to the Technology and Construction Court. In that “other litigation” the 1^st Defendant is seeking damages. Since that time the Claimant argued that the law did not permit it to allow the 1^st Defendant to correct or cure the defects in his tender. (Further details of that other litigation given in the attached grounds for judicial review).

55.

The 1^st Defendant has spent approximately several thousand hours on that other litigation. This was extremely important for Hersi & Co because that other litigation involves a claim for more than £2 million pounds. That litigation has been ongoing from 2010 to now (nearly 6 years). The 1^st Defendant spent the vast majority of his working time on that litigation. Whether Hersi & Co survives depended on the outcome of that other litigation. As a result of that the 1^st Defendant asked employees of the Claimant (Account managers) that Hersi & Co will complete the billing when the other litigation had concluded. The response from the Claimant’s employees were not unfavourable.

56.

The 1^st Defendant worked on the assumption that Claimant was content to the billing to be completed once the other litigation had concluded. In this respect there was an agreement between the 1^st Defendant and the Claimant that the billing would be completed once the other litigation had concluded. The Claimant failed to honour that understanding and agreement.

57.

Hersi & Co always intended to complete the billing for the remainder work once the other litigation had concluded.

57a. The Claimant’s tortuous conducts had prevented the 1^st Defendant from completing the billing of some files as he planned originally. It knocked the 1^st Defendant off course

58.

The conclusion of the other litigation proved impossible so far due to a fraudulent conduct on the part of employees of the Defendant or its agents. That is 5^th to 16^th Parties.

Particulars

59.

In September of 2013 an employee of the Claimant MOJ Michael Rimer (employed barrister, Head of Litigation) filed a statement in Administrative Court in the High Court of Justice.

60.

In his statement Mr Rimer stated:

In the annex to the Defendant’s Amended Grounds of Resistance dated 6 September 2013 at page 31 relating to Firm No 1, Aman Solicitors, Disclosure Ref 10, states:

“This related to a bid outside the London area (in Birmingham)-it had no affect on others scoring 53 as all which scored 53 received a pro rata allocation of NMS. Organisations in this access point scoring 48 above were also offered contracts subsequently due to the administration of another firm which means that this bid would be successful based upon the original answers given.

The Claimant (in its request for further disclosure relating to this firm), has confused this firm’s tender in Birmingham with its bid in the Luton area (outside London). The firm did not originally receive a contract in Luton and its appeal (see annex A above) did not succeed as it did not score enough points. However, as a result of a firm of the Luton area having its award of a contract withdrawn in August 2010, Aman being the next ranked bidder, obtained a contract for 35 asylum matter starts and 15 immigration matter starts in Luton.”

61.

The 1^st Defendant made a complaint about Mr Rimer to the Bar Standards Board. That complaint is pending.

62.

The 1^st Defendant asked Mr Rimer to correct that statement because it was false and it was a statement that could not have been made in good faith. Mr Rimer failed to correct that statement. Mr Rimer did not assert that statement was true. Instead he had asked the Legal Director to respond to the correspondence alleging falsity of that statement.

63.

In correspondence dated between January 2014 and September 2015 the Claimant’s employee (Ruth Wayte, the Legal Director of the Legal Aid Agency) provided deliberately or recklessly misleading statement to the High Court and to the 1^st Defendant. In the same period Ruth Wayte was engaged in a conduct calculated to harm the Claimant. This conduct was either deliberate or reckless.

64.

In various interactions between 1^st Defendant and Mr Anthony Lawrence of (an employed solicitor of the Claimant) between January 2014 and June 2016, Mr Lawrence provided deliberately or recklessly misleading statements to the High Court in respect of the other litigation. In particular wrote a witness statement in January or February 2016 which stated that a firm called Aman Solicitors was awarded a contract because another firm had its offer of contract withdrawn. He also stated that other firm was later also awarded a contract. This statement was false and could only have been made dishonestly or recklessly. There is objective evidence which demonstrates that. The statement was not written in good faith. It was intended to harm the 1^st Defendant. It provided deliberately misleading statement to the High Court and to the 1^st Defendant. In the same period Anthony Lawrence was engaged in conduct calculated to harm the Claimant. This conduct was either deliberate or reckless. This conduct related to failure to respond to various correspondences from the 1^st Defendant and the positive act of writing witness statements which he knew were untrue. This is in respect of the circumstances which led to the award of contract of the firm called Aman solicitors and Advocates in Luton in 2010.

65.

Between June 2011 and 2016 Mr Jonathan Flewer wrote various letters, emails and witness statements which were designed (either deliberately or recklessly) to mislead the High Court or the claimant; and First Tier Tribunal in respect of Appeals under the Freedom of Information Act 2000. In particular it repeated the false statements which Mr Rimer had made (see above).

66.

Further details of this are provided in the attached letter before claim of 21 January 2014 (Annex A). And Annexes B, C & D.

67.

The various conducts concerned amount to the tort of misfeasance in public office.

68.

The Claimant’s claim is brought in order to distract the 1^st Defendant from completing his other litigation or pursuing other complaints.

69.

The decision of the Claimant to commence the claim for breach of contract was not made good faith. It was made in bad faith. It is unlawful on public law grounds. If such unlawfulness is established then the claim should be dismissed.

70.

The 1^st Defendant was willing and is willing to set a timetable for completing the billing within an agreed time. Other firms were given up to 10 years to file their final bills. The conduct of not giving the 1^st Defendant t similar leeway is discriminatory There were exceptional circumstances which prevented the 1^st Defendant from completing the billing.

71.

The 1^st Defendant cannot conduct both litigations at the same time because he is a sole practitioner. In particular given the protracted nature of the other litigation. Therefore, the Claimant is invited to agree stay of proceedings while the other litigation concludes. Any refusal of such state would breach Article 6 of European Convention on Human Rights. It would be a denial of fair trial.

73.

The 1^st Defendant was the victim of constant and torrent misfeasance and fraud by the additional parties (5^th to 16^th) every number of years (2010 to 2016). That conduct prevented him from concluding his other litigation within a reasonable time. As result prevented it from focusing on submitting bills for aged files

73.a) Between 2010 and 2016 the 5^th to 15^th parties engaged in a conduct designed to harm the 1^st Defendant in that it failed to obtain key evidence which they were under a duty to obtain and disclosed to the 1^st Defendant

73.b) Between 2010 and 2016 the 5^th to 16^th parties committed the tort of misfeasance in public office (or tort of deceit or the tort of intentional infliction of economic loss) through their conduct in various civil actions brought against their employer (or client in the case of 16^th party)

73.c) this was done through

i.

Responses to letters before claim written by those parties in relation to those civil actions brought against the LSC/LAA between 2010 to 2016 or Tribunal proceedings involving MOJ or LAA (hereafter “civil actions”). Those civil actions concerned claims (or threatened or prospective claims) by solicitors or other bidders to the effect they should have been awarded civil contracts. Or the LSC/LAA unreasonably or unfairly failed to award them a civil contract between 2010 to 2016. In particular (but not limited to) bids submitted for the 2010 civil contract round.

ii.

Other correspondence written by those parties or contributed to by those parties in relation to those civil actions.

iii.

Omitting to respond (either deliberately or recklessly) appropriately by those parties in relation to correspondence (and emails) concerning those civil actions.

iv.

Witness statements written by those parties (or contributed to by those parties) in those civil actions.

v.

Pleadings written by those parties or contributed to by those parties in the same selections.

vi.

Oral evidence given by those parties in those civil actions.

vii.

Schedules of evidence drafted by those parties (or contributed to by those parties) in those civil actions

viii.

Instructions provided to counsel by 5^th to 15^th parties or contributed to.

ix.

Cases presented to court by those parties or contributed to.

x.

Omitting to contact the court where necessary in order to correct misleading evidence that was presented to court by those parties or contributed to by those parties.

xi.

Approving skeleton arguments which contained incorrect factual statements which were provided to the courts in those civil actions.

xii.

Suppressing vital evidence, manipulating evidence, falsifying evidence and failing to comply with CPR rules in respect of standard disclosure.

xiii.

Failure to disclose evidence that was adverse to its cases.

xiv.

Failure to adhere to the duty to not mislead the court.

xv.

Failure to comply with duty of candour in respect of judicial review claims.

73.d) The 5^th to 7^th Parties are vicariously liable for the conduct of their employees as well as be liable in their official capacity or institutional capacity.

Particular issue concerning the 15^th Party

73.e) The 15^th Party wrote an email dated 11 November 2010 (at 17:02) (addressed to raheel.latif@amansolicitors.com. This was not written in good faith and it was intended to harm a class of people including the 1^st Defendant. The email contains information which could only have been placed there dishonestly or recklessly. (copy of the email is attached.

Defamation issue

74.

The Claimant wrote to dozens of the 1^st Defendant’s clients and informed them that the 1^st Defendant was “intervened” by the law society and closed down. It advised the clients to seek alternative legal advice from other providers of legal advice.

73.

This took place beween the years 2011 and 2014. This conduct amounts to a defamation and claimant is entitled to damages in respect of this defamation.

74.

The 1^st Defendant also believes this belief caused the Claimant to not seek any repayments for some years. Therefore, the vast majority of the claims of the Claimant are time barred. They are outside the time limit for this kind of action. Despite that the 1^st Defendant may be willing to not raise this issue if he is given an agreed time (which is acceptable to him) for filing the final bills once his other litigation concludes.”

There is then a prayer for relief seeking, inter alia, a number of different declarations; damages; and costs.

Hence, it is the Appellants’ case that they have been the victims of serious wrongdoing on a grand scale at the hands of the individuals and entities referred to in the Defence and Counterclaim, all of whom are public authorities or public officials.

The other ‘parties’ referred to in, for example, para 58 of the Defence and Counterclaim are not, in fact, parties to the claim. They are identified in a Part 20 claim form. However, as the Master noted at para 26 of his judgment, this has not been issued. The ‘parties’ are the Secretary of State and Lord Chancellor (5^th Party); Secretary of State for Justice and Ministry of Justice (6^th Party) (sic); Legal Aid Agency (7^th Party); Ruth Wayte (8^th Party); Michael Rimer (9^th Party); Anthony Lawrence (10^th Party); Malcolm Bryant (11^th Party); Jonathan Flewer (12^th Party); Kerry Wood (13^th Party); Melena Ward (14^th Party); Tim Collieu (15^th Party); Fiona Scolding (16^th Party).

Following the service of the Defence and Counterclaim, the Lord Chancellor served a Reply and Defence to Counterclaim dated 29 September 2016. As a general matter, this denied any wrongdoing or any improper conduct by any person. Complaint was also made that the other ‘parties’ that I have referred to had not been properly joined. The pertinent parts of the pleading for the purposes of this appeal are as follows:

In response to this, on 13 October 2016 the Appellants lodged a short Reply to the Defence to the Counterclaim. Among other things, this denied the Lord Chancellor’s assertions of immunity and denied that the Defence and Counterclaim was insufficiently particularised.

By an application notice dated 13 February 2017 the Lord Chancellor sought an order striking out:

The Lord Chancellor relied on all three of the heads in CPR r 3.4 as justifying strike out. He submitted that:

In the alternative, the LAA applied for summary judgment in respect of the same parts of the Defence and Counterclaim under CPR r 24.2 on the basis that they did not have a realistic prospect of success.

I should make clear that the Lord Chancellor has not sought summary judgement on his own claim.

At the hearing before the Master the Lord Chancellor was represented by Ms Rushton and the Appellants (as they are now) were represented by leading counsel, Richard Wilson QC.

The Master said that on the immunity issue, he had been referred to a number of authorities, four of which he said were of particular significance: Darker v Chief Constable of West Midlands Police [2001] 1 AC 435; Baxendale-Walker v Middleton and others [2011] EWHC 998 (QB); Roy v Prior [1971] AC 470 and Taylor v Director of the Serious Fraud Office [1999] 2 AC 177.

At para 10 the Master said that at the heart of the Lord Chancellor’s application was the question whether witness immunity applied in the circumstances of the case. At para 13 he said that Darker, supra, established that witness immunity does not extend to things done which cannot be fairly said to form part of their participation in the judicial process as a witness. It also established that immunity does not extend to the fabrication of false evidence. It did make clear, however that immunity extends to witness evidence given prior to trial, including proofs of evidence. The Master said at para 14 that Baxendale-Walker, supra, established that immunity extends to the tort of misfeasance in public office but not to malicious prosecution or arrest and he said at para 15 that Roy v Prior, supra, also established that immunity does not extend to malicious prosecution or arrest. He said that Taylor, supra, made clear that witness immunity extends to statements made out of court which can fairly be said to be part of the process of investigating a crime with a view to prosecution.

Against that background, at para 16 the Master said that the evidence criticised by the Appellants ‘is at the very heart of the judicial process, ie, the judicial review proceedings’ and he held that immunity applied in relation to it.

At para 17 he said that the claim for the tort of intentionally inflicting economic loss was shut out by the principle of witness immunity and hence that it had no realistic prospect of success.

At para 18 the Master noted the Appellants’ submission that the matters pleaded at para 73(c)(xii) of the Defence and Counterclaim relating to the alleged suppression, manipulation and falsification of evidence fell outside the scope of witness immunity. However, at para 19 the Master said that these points should be taken in the judicial review proceedings, and he also held that in any event they were unparticularised.

At para 20 the Master considered whether matters could be cured by amendment. He said that there was no draft amended pleading, even though the Appellants had been on notice for some time that striking out was being sought inter alia on the basis of lack of particulars.

At paras 22 onwards the Master went through the Defence and Counterclaim. He said that para 53 apart from the first three sentences (sic; the Master must have meant two, as para 53 only contains three sentences) should be struck out. He said that paras 54 to 74 should be struck out save for that part of the second numbered para 74 which dealt with the issue of limitation.

At para 23 the Master held that the Appellants’ plea of promissory estoppel in paras 55 and 56 had no realistic prospect of success.

At para 24 the Master returned to para 67, which referred to misfeasance in public office, and said that it could not get over the hurdle of witness immunity. He said that, in any event, malice had not been particularised and there was no realistic prospect of the Appellants showing that witnesses had acted beyond their powers.

At para 25 he said the matters contained in the other paragraphs had no realistic prospect of success.

At para 26 the Master noted that although other parties had been referred to, no Part 20 claim form had been issued and so what had been pleaded was ‘hopeless’.

At para 28 he said that it was common ground that the claim in defamation should be struck out.

Accordingly, the Master directed that there be summary judgment for the Lord Chancellor on the Counterclaim; that the various paragraphs be struck out, namely para 53 (save for the first three sentences (sic – see above)) and paras 54 – 74 (save that part of para 74 dealing with limitation); that the prayer for relief be struck out; and the Reply to the Defence to Counterclaim also be struck out.

The Lord Chancellor’s position is that in granting summary judgment against the Counterclaim and in striking out these paragraphs, the Master also struck out the annexes to the Defence and Counterclaim. The Appellants dispute this (Skeleton Argument, para 26). However, the annexes relate solely to the allegations in the Counterclaim, in respect of which summary judgment has been given, and I agree with the Lord Chancellor that they must also therefore have been removed. The annexes cannot have any free-standing existence.

The Appellants’ Notice was issued on 26 September 2017. Walker J granted permission on 7 December 2017. He said:

“A.

Your claim was not pleaded satisfactorily. I reject the notion that you can explain this away because your specialism is in immigration law. Any competent solicitors’ firm ought to be able to explain its own case directly.

B.

Nevertheless, it is often not easy to determine whether a claim, especially where there is a request to be allowed to re-plead the matter, should be barred because it would contravene the principle of witness immunity. In the present case I think the question whether the Master applied the law correctly is not open and shut. For that reason only I have given permission to appeal. You must not assume that your appeal will succeed.”

By the time Walker J granted permission, Coulson J had given judgment on the judicial review claim and had dismissed it. Mr Hersi did not bring the judicial review judgment to Walker J’s attention. He told me that it did not occur to him to do so. This failure forms the basis of the Lord Chancellor’s application to set aside Walker J’s decision. It is said by Ms Rushton that given the overlap of subject matter between the application for leave to appeal against the Master’s decision and the judicial review application, it was incumbent upon Mr Hersi to draw the court’s attention to it before the application for permission was determined. In particular, she says Walker J should have been told that there had not been any application to cross-examine those witnesses (such as Mr Rimer) whom the Appellants were accusing in these proceedings of giving false evidence in the judicial review proceedings.

I deal with the application to set aside below. Before doing so, however, it is convenient at this point to consider Coulson J’s judgment.

As I have explained, the judicial review proceedings brought by Hersi & Co challenged the decision of the LSC in 2010 not to award it a contract to provide publicly funded legal services in immigration law. The reason the firm was not awarded a contract was because it did not score enough points on the tender documents that applicants were required to complete as part of the public procurement process. In simple terms, the reason it did not score enough points was because it left blank a number of the questions which had to be completed, with the result that it scored no points for those questions. As a consequence, it only received 18 points, which were not enough for the award of a contract.

The judicial review proceedings included a claim for damages. Coulson J noted at para 155 of his judgment that, but for the existence of what the firm must have considered to be an arguable claim for damages, there would have been no purpose to the proceedings in the first place. He said that the proceedings had not been conducted with sufficient speed to have had any effect upon the procurement exercise itself, so that the case was always a claim for damages only.

The firm was notified that it had been unsuccessful on 28 June 2010. On 6 July 2010 the firm appealed, saying that it believed that (judgment, para 49):

“… a computer malfunction or technical glitch on the part of the LSC was responsible for the decision not to award at least 33 points and a contract to Hersi & Co solicitors.”

The appeal thus sought to blame the LSC for an unspecified technical error that the firm alleged had occurred when its tender came to be evaluated.

On 6 August 2010 the firm’s appeal was rejected. The appeal decision said that there had been no technical problem which meant that the LSC had incorrectly not read information supplied by the firm, and that its application had properly only been awarded 18 points, which meant that it did not receive a contract. The appeal letter stated (judgment, para 50)

“I regard the ground on which the Applicant's appeal is based as an attempt to amend its tender. I do not believe that it would be appropriate to allow an appeal which could have that effect.

I consider that the tender rules, as set out above, are very clear that it is the Applicant's responsibility to submit an accurate tender. The LSC is entitled to assess tenders on the basis of the information directly provided by the Applicant and rely on it and is under no obligation to seek clarification.”

At para 4 of his judgment Coulson J. summarised the firm’s challenge as follows:

“The substantive issues could not be more straightforward. As part of the tender, there were 7 particular questions, grouped under the heading 'Selection Criteria', which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant's tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant's tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant's treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment.”

At para 51 – 52 Coulson J said:

“51.

In these judicial review proceedings, the claimant was not permitted to pursue the alleged “technical glitch” on the part of the defendant. As far as I have seen, there was never a shred of evidence to support such an allegation. No explanation was ever given for how and why this allegation was advanced in the first place. At the very least, the raising of this unsubstantiated assertion could be seen as an example of the typical knee-jerk response of the failed bidder, blaming the contracting authority, come what may (an approach Mr Westgate [counsel for the firm] was still pursuing in his submissions in reply); at worst, it was an assertion which the claimant knew or ought to have known was untrue.

52.

Now the claimant alleges that the information that was left blank in answer to each of Questions 5-7 of the Selection Criteria was already known to the defendant or was apparent from other parts of its tender. It is said that the defendant should therefore have either asked the claimant to clarify the non-answers, or answered the questions itself. There are also wider complaints made by reference to the defendant's treatment of other parts of other tenders which are not obviously connected to the specific criticisms made in respect of the treatment of the claimant's non-answers to Questions 5-7.”

At para 53, under the heading ‘The Evidence’, Coulson J said:

“53.

There are 4 witness statements from the claimant's principal, Mr Ahmed Hersi. There were also 5 witness statements from the person at the defendant responsible for this procurement, Ms Melena Ward. Whilst useful as background, I did not find any of these statements to be determinative of the issues I have to decide, which may explain why there was no cross-examination upon their contents. However, for completeness, I should add that, contrary to Mr Westgate's submissions, I did not read Ms Ward's evidence as demonstrating a procurement process that was incoherent or haphazard. On the contrary, given the size of the exercise that was being undertaken, I consider that the process was generally handled in a coherent and principled way.”

Therefore, although in the proceedings before me the Appellants have made very grave and wide-ranging allegations, including the suppression, fabrication and manipulation of evidence in the judicial review proceedings, and alleged that there was a widespread conspiracy to give perjured evidence in those proceedings, when it came to it, there was no application to cross-examine any of those whom the Appellants accuse of wrongdoing. I was told at the hearing that there had been an application to cross-examine another witness, which had been refused.

In his judgment Coulson J then went through the firm’s challenges to how the LSC had treated its responses to the questions for which it had not been awarded any marks, and he held that the LSC had been right in its conclusions.

The judge then addressed, and rejected, the firm’s separate and broadly-based attack on how the LSC had dealt with the tenders of numerous other applicants, so as to allege a wider breach of the equality principle.

In Section 10 of his judgment, Coulson J dealt with the issue of damages and noted that the parties had agreed that if necessary the question of damages should be adjourned. He said that the firm had claimed in the region of £2.2 million, but that there was little evidence to support the claim for damages save for a short passage in one of Mr Hersi’s witness statements. He said:

“158.

With considerable understatement, Mr Westgate described the evidence referred to above as “concise”. Given that there was no other evidence on damages, I would describe it in a rather different way: in my view, it was wholly inadequate to support the pleaded damages claim. Thus, there was no evidence before the court at the time of the trial which could have supported any special damages claim whatsoever. There was therefore nothing for the court to adjourn to a later date.

159.

On receipt of the draft judgment, Mr Westgate complained that, if the claimant had known that damages were going to be dealt with, Mr Hersi could have given oral evidence and been cross-examined. That is incorrect for a variety of reasons: not only had the parties agreed well in advance of the trial (and therefore in advance of the conditional agreement) that there would be no oral evidence, but the absence of any detail and any documents to support any of the claimed figures would have been fatal to the damages claim in any event. Mr Hersi could not have given oral evidence in chief on any matter that went beyond his (inadequate) witness statement, so there would have been no need for Mr Taylor to cross-examine him, and nothing to cross-examine him on.”

At para 168 the judge commented on how the judicial review proceedings had been conducted:

“In my view this litigation has been conducted in an abysmally slow and haphazard fashion. No regard has been had to the orders of the court, or to the CPR (which contrary to the belief in some quarters, applies to the Administrative Court just as it applies to all other parts of the High Court). The claimant has been in breach of both court orders and the rules. I very much hope that no case ever comes to trial in the TCC again with a 6 year procedural history.”

Finally, at paras 169 – 173 under the heading ‘Conclusions and Consequential Matters’ the judge said (original emphasis):

“169.

For the reasons set out in Sections 4-8 above, the claimant's claim for judicial review fails at every level.

170.

For the reasons set out in Section 9 above, the claimant's wider case on equality fails in principle; fails because of other decisions which I follow; and fails on an analysis of the specific comparisons drawn.

171.

For the reasons set out in Section 10 above, I consider that the damages claim could never have been made out on the evidence provided by the claimant.

172.

For the reasons set out in Section 11 above, I consider that this claim has been conducted in an abysmally slow and haphazard fashion.

173.

It will be important to have a hearing either at the handing down of this Judgment or, if that is inconvenient to counsel, as soon as possible thereafter, in order to deal with consequential matters, including the question of costs and the basis of their assessment.”

Following the handing down of his judgment, Coulson J ordered the firm to pay the Lord Chancellor’s costs on an indemnity basis from March 2013 onwards. That decision does not appear to have a neutral citation but is available on Westlaw. At para 3 the judge referred to disclosure:

“3 I start at first principles. Costs follow the event. The claimant has lost completely and therefore the ordinary order would be that the claimant should pay the defendant's costs. I am unable to discern any principle in support of the proposition that until disclosure was completed that means in some way that the claimant should have its costs of pursuing an unsuccessful claim against the defendant. That is particularly apposite here where the large amount of documents which were disclosed were almost all entirely irrelevant to the issues between the parties.”

At para 8 the judge said:

“Following disclosure in March 2013, it seems to be clear that the claimant would have known, or should have known, that this was a hopeless case. All of the comparators on Questions 5, 6 and 7 demonstrate that the claimant was treated in precisely the same way as all the others who had failed to answer those questions.”

Later, Coulson J commented on the allegations that had been made in the course of the judicial review proceedings and said that these provided additional grounds for ordering costs on an indemnity basis:

“14 Thirdly, there are other aspects of conduct which, again, I consider justifies the order. The authorities made plain that unjustified personal attacks are something which can trigger indemnity costs. Mr Taylor referred me to evidence in these proceedings in a witness statement of Mr Lawrence of February 2016, in which between Paragraphs 14 and 25 he identifies the conduct of the claimant about which the defendant now complains. It is a pretty extraordinary litany of bad conduct. It appears that the claimant's solicitors lost no opportunity to make formal complaints about the lawyers acting for the defendant.

15 So, there were complaints to the SRA about Mr Lawrence and there were complaints to the Bar Standards Board about Mr Rymer. There were allegations of dishonesty. Mr Westgate said that these matters were simply in written evidence and had not been further addressed, but these matters were not refuted or disowned in any evidence or in any other document. Accordingly, they are matters which I am entitled to take into account. It is also not right to say, as Mr Westgate said, that these matters have nothing to do with costs, because at Paragraph 24 Mr Lawrence made the point that this unjustified conduct in the matter was designed to frustrate and delay the conclusion of the litigation. He also makes the point, at paragraph 25, that these matters have not been raised in the proceedings. That is to say the complaints made by the claimant and raised in these proceedings.

16 So, it does seem to me that those are matters which again warrant an order for indemnity costs. That ties in with the separate point to which I shall return in a moment, namely the application for yet further disclosure made in September 2017. That application was coupled with an application to commit various members of the defendant's legal team for contempt of court. It is claimed that by the time the hearing came before Mrs Justice Jefford wiser counsel had prevailed, but the fact that the claimant was prepared to make extremely serious allegations which were then abandoned, again seems to me to be all of a piece with the conduct complained about in Mr Lawrence's statement.

17 Accordingly, there are a number of conduct matters which I have identified and which, when taken together with the hopeless nature of the case and the hopeless nature of the claim for damages, does seem to me to warrant an order for indemnity costs from March 2013 onwards.”

With that necessarily lengthy introduction, I turn to the issues on the appeal before me.

The Appellants submit in their Skeleton Argument that the appeal raises a number of important points of principle including: the exact scope of the witness immunity principle; whether the witness immunity principle assists a person who is accused of fraud, deceit or misfeasance in public office; and how the policy of ensuring that where there is a wrong there should be a remedy should be reconciled with the immunity principle.

The Appellants’ core ground of appeal is that the Master was wrong to hold that the witnesses whom they criticise in their Counterclaim are covered by witness immunity. They argue that the Master should have ruled that the core immunity of witnesses does not extend to cases concerning: fraud; fabrication of evidence; deception; and misfeasance in public office. They submit that the Master’s decision is at odds with decisions of the House of Lords and the Supreme Court, and they rely in particular to Jones v Kaney[2011] 2 AC 398, para 82, where Lord Collins said:

“82.

In England there has never been complete immunity for expert witness evidence, any more than there has been complete immunity for other witnesses. The general principle does not preclude prosecutions for perjury, or for perverting the course of justice, or for contempt of court, or liability for malicious prosecution, or misfeasance in public office: see, eg Darker v Chief Constable of the West Midlands Police [2001] 1AC435.”

The Appellants also rely on Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783, paras 27 – 28, paras 35 – 38, and  South Wales Police v Daniels and others [2015] EWCA Civ 680, paras 19 - 48. I will consider those cases in more detail later.

Next, the Appellants contend that witness immunity does not apply because they say they are litigating in respect of what the witnesses did not tell the court (ie, what was withheld from the courts) and not what the witnesses told the court. They therefore argue that the Master was wrong to strike out portions of the case that concerned what the witnesses did not tell the court, and they rely on Darker, supra, p449.

Next, the Appellants submit that the Master should not have struck out their Counterclaim because, it is said, summary judgment should not be granted in cases of fraud unless there are exceptional circumstances, and they rely on Alpha Rocks Solicitors v. Alade [2015] 1 WLR 4534.

The Appellants’ Skeleton Argument concedes (at para 39) that their pleadings are defective. They candidly admit that they have not fully particularised many of their allegations and causes of action ‘as required under the rules and practice direction’. The same concessions were made by leading counsel in his Skeleton Argument before the Master. However, the Appellants nonetheless maintain that it was disproportionate for the Master to grant summary judgment against them on their counterclaim. They rely on the fact that although Mr Hersi is a solicitor his field is immigration work and it is said that. ‘He has little, if any, experience in pleading factually complex claims in private law matters’. Walker J made observations about that excuse when granting permission, as I have set out. Moreover, the Appellants were represented by leading counsel at the hearing before the Master.

Paragraph 42 of the Appellants’ Skeleton Argument argues as follows (sic):

“(1)

Appellant accepted that there has been a failure to fully particularise his claim as required pursuant to CPR PD 16 para 8, broadly in the respects identified in C’s Reply and DCC and at §23.1-9 of Mr Duncan’s w/s [5/107-8].

(2)

The reason for non-compliance is the Appellant’s evident lack of knowledge and skill to draft fully compliant pleadings. He is an immigration (public law) solicitor. He appears to lack the necessary proficiency in pleading common law causes of action; and in particular in addressing appropriately, the requirements of pleading matters such as fraud or bad faith. He settled the DCC as a litigant in person, and although he is a qualified solicitor, the court ought to take his lack of proficiency in private law matters and in pleading common law causes of action in to account by way of explanation for the non-compliance with the rules and practice direction.

(3)

D has provided further particulars in his witness statement. That is by way of voluntary Part 18 information and particulars.

(1)

In the circumstances, and taking into account the reasons for noncompliance with PD 16 para 8, and dealing with the matter justly, the approach of the court should be not to strike the counterclaim out for want of particularity, but to provide D with an opportunity to instruct counsel to attend to the pleadings and plead full particulars.”

The Appellants seek a direction from me that they be allowed to file and serve full particulars of their counterclaim within 21 days.

On behalf of the Lord Chancellor, Ms Rushton takes a preliminary point. She submits that I should set aside the grant of permission to appeal pursuant to CPR r 52.18(1)(b). The application is based on the failure by the Appellants to bring Coulson J’s judgments to the attention of Walker J when he was considering whether to grant permission to appeal.

Ms Rushton points out that the firm was represented by leading and junior counsel at the judicial review hearing. None of the LAA’s witnesses was cross-examined. No allegations were put to any witness for the LAA that any part of their evidence was false, dishonest or fabricated or that they had concealed disclosable documents. This was despite the fact that these were the very proceedings in which the statements impugned by the Appellants had been made.

In other words, says Ms Rushton, once represented, Mr Hersi made an immediate decision not to pursue those allegations of fraud and fabrication at the trial of the judicial review claim. She says that the obvious conclusion is that Mr Hersi chose not to put those allegations to those witnesses and/or that his counsel refused to do so as a matter of professional obligation because there was insufficient evidence to justify them.

Thus, Ms Rushton complains that on 17 November 2017 the Appellants filed their appeal bundle and Skeleton Argument in support of their application for permission, however they did not make any reference to these matters.

Ms Rushton submits this amounted to a very significant breach of Mr Hersi’s duty of candour on the application for permission to appeal (see R(Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416) and that in withholding this information, Mr Hersi misled the judge considering his application for permission to appeal. Thus, she submits that permission to appeal should therefore be set aside.

Alternatively, if the appeal proceeds, Ms Rushton submits that the Master’s order should be upheld for any or all of the following reasons:

In addition, Lord Chancellor submits that the Master’s order should be upheld on the additional or alternative grounds that:

The relevant rule allowing for an application to set aside permission to appeal is CPR r 52.18(1)(b). CPR r 52.18(2) provides that the Court will only set aside permission to appeal ‘where there is a compelling reason for doing so.’

This power was considered in Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011] EWCA Civ 1148, paras 27 – 29:

“27.

The need for the applicant to demonstrate a compelling reason for setting aside the grant of permission to appeal reflects the earlier observations of Lord Donaldson of Lymington MR in The Iran Nabuvat [1990] 1 WLR 1115 that the court would require some very cogent reasons for disagreeing with the single Lord Justice's decision to grant permission to appeal. Thus the “cautionary note” in the White Book at 52.9.2:

“Save in exceptional circumstances, it is a misuse of the court's resources and a waste of costs for the court to consider the substance of an appeal on some intermediate date between the permission hearing and the full appeal.”

Approving that observation, Longmore LJ went on to say in Nathan v Smilovitch [2002] EWCA Civ 759 at [9]:

“For my part, unless the nature of the application shows that some decisive authority or decisive statutory provision has been overlooked by the Lord Justice granting permission to appeal, an application would normally have to show that the single Lord Justice had actually been misled in the course of the presentation of an application.”

In Barings Bank Plc (in liquidation) v Coopers & Lybrand [2002] EWCA Civ 1155 Laws LJ added this:

“It seems to me to be of the highest importance that the court should very firmly discourage the bringing of satellite litigation under the guise of an application under CPR r.52.9. The rule is there to cater for the rare case in which the Lord Justice granting permission to appeal has actually been misled. If he has, the court's process has been abused and that is of course a special situation. There may be cases where, as Longmore LJ indicated in Nathan v Smilovitch [2002] EWCA Civ 759, some decisive authority or statute has been overlooked by the Lord Justice granting permission. But where such a state of affairs is asserted, the learning in question must in my view be plainly and unarguably decisive of the issue. If there is anything to argue about, an application to set aside the grant of permission will be misconceived.”

These authorities establish that an applicant has a high hurdle to jump if he is to succeed in knocking out an appeal at this intermediate stage.

28.

At the heart of this jurisprudence lies the notion of abuse of the process of the court. The obligation of full and frank disclosure which falls on any applicant seeking relief without notice to the other side is an obligation to the court itself. To fail to disclose material information is to abuse the due process of the court and as a consequence to run the risk that the court will deprive the applicant of the fruits of the advantage wrongfully obtained. This condign sanction is also exacted in order to act as a deterrent to others. But there is no inexorable rule that the order granted without knowledge of the full facts must be set aside. A sense of proportion must always be observed. Too mechanistic a strike out will be an instrument of injustice.

29.

Thus the court will have to take into account all the circumstances of the case, the gravity of the breach, the explanations for it, the culpability of it, and, above all, how the case can be dealt with justly in accordance with the overriding objective.”

In R (Khan) v. Secretary of State for the Home Department [2016] EWCA Civ 416, paras 35 to 52,the Court of Appeal considered the duty of candour which it recognised was on a party seeking permission to appeal. While the position is not the same as on a without notice application for an injunction, the party will breach that duty if he fails to disclose a material document or provides an incomplete and partial explanation, where the full picture would have affected the judge’s decision on the application. This is so even where the relevant rules permit the respondent to file a notice in opposition to the application for permission to appeal. Beatson LJ said at para 46:

“It is clear from R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 that where counsel knows something and keeps it from the court or makes a positively misleading statement, there will be a breach of the duty of candour which justifies setting aside permission to appeal.”

In Sabir, supra, at para 30 the Court of Appeal referred with approval to what Sedley LJ said in Hertsmere Borough Council v Harty and others [2001] EWCA Civ 1238, para 2:

“2.

The power to set aside a grant of permission to appeal is given by Rule 52.9(2) of the Civil Procedure Rules and requires a compelling reason for so doing. I would remind those thinking of making such applications, as the note in the White Book reminds them, that this is not an opportunity to have an early shot at knocking out a weak appeal or an appeal which is now thought to be weaker than it once was. But it must be the case that if a respondent can show the court that the judge was misled by an appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the rule. It must, however, it seems to me, involve showing (a) that the materials put before the judge were inaccurate or incomplete; (b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and (c) very importantly, that but for them permission to appeal would not have been given”.

Taking Sedley LJ’s three-stage test and applying it to the facts of this case leads me to the following conclusions.

CPR r 52. 6 provides that permission may only be granted where (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason for the appeal to be heard. That is the test Walker J was applying.

First, there can be no argument but that the material before him was incomplete because of the failure by the Appellants to bring to his attention both the judgments of Coulson J, and the fact that at the hearing in those proceedings the pleaded particulars of wrongdoing in the counterclaim had not been pursued, even though those allegations related to how the Appellants said the various people named had behaved in those very proceedings.

As to the second part of the test, both of these things were relevant to the issues arising in these proceedings, and before me Mr Hersi did not seriously argue to the contrary. The reason they were relevant is this. Pursuant to CPR r 24.2(a)(i), before the Master the Lord Chancellor was arguing that judgment should be given against the Appellants on the counterclaim because they had no real prospect of succeeding on it: seeEasyair v Opal Telecom [2009] EWHC 339 (Ch), para 15.

The Master directed himself correctly at para 3 that the Appellants had to show a real prospect of success for their case and that a fanciful prospect would not suffice. For the reasons he gave, the Master held that the counterclaim had no reasonable prospects of success and gave summary judgment for the Lord Chancellor.

Hence, at the heart of the application to Walker J was the argument that the Counterclaim did, in fact, have a real prospect of success. It follows that Walker J should have been told that the firm’s damages claim had completely failed. That is because it was the Appellants’ primary case that the judicial review proceedings had been the vehicle by which the impugned witnesses had caused them recoverable losses by seeking to delay or defeat the firm’s damages claim via the litany of misconduct set out in the Defence and Counterclaim. But when it is appreciated that (a) Coulson J held that the damages claim was fatally flawed (‘hopeless’) in any event, even without reference to any of the evidence, because of the firm’s failure to adduce any evidence in support of it; and (b) the impugned evidence did not feature significantly or at all in Coulson J’s decision rejecting the claim for judicial review, then the argument that the Appellants suffered loss because of the witnesses’ actions in the judicial review proceedings becomes virtually untenable. The tort of misfeasance in public office requires proof of damage: Three Rivers District Council v Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 at 191B – 194C; Watkins v Secretary of State for the Home Department [2006] 2 AC 395; Clerk and Lindsell on Torts at para 14.127. The tort of deceit also requires proof of damage: Smith v Chadwick (1884) 9 App Cas 187 at 190; Diamond v Bank of London & Montreal Ltd [1979] QB 333 at 349, per Stephenson LJ; Clerk and Lindsell, loc cit, at para 18-39. The tort of unlawful interference with economic and other interests only exists where the claimant has suffered damage which the defendant has intentionally brought about by the use of unlawful means: Clerk and Lindsell, loc cit, para 24-72; and see generally, JSC BTA Bank v Ablyazov and another (No 14) [2018] UKSC 19. The judgment of Coulson J demonstrated that the Appellants had not suffered any loss because of the witnesses’ actions, because the claim for damages failed anyway, and so this is something which Walker J should have been told.

Also, in my judgment the Lord Chancellor is right to submit that Walker J should have been told that the judicial review hearing had taken place; that the firm and Mr Hersi had not pursued its allegations of wrongdoing by anyone; and that the firm had lost the claim with indemnity costs being awarded against it. It is worth remembering what counsel’s duty is in relation to allegations of fraud. Paragraph 606 of the former Code of Conduct, now rC9.2(c) in the new Code of Conduct in Part 2 of the Bar Handbook, provides that counsel must not make any allegation of fraud unless he has clear instructions to allege fraud and he has reasonably credible material which establishes an arguable case of fraud. In Medcalf v Mardell [2003] 1 AC 120, para 22, Lord Bingham said:

“The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn.”

Hence, Walker J might have drawn the inference that the reason the allegations were not pursued before Coulson J was because there was insufficient evidence to support them and so, consistently with their professional duty, the Claimant’s counsel had declined to pursue such a case. Or he might have drawn the inference that the reason Mr Hersi has not particularised his allegations is because he cannot do so because there is no material to justify the allegations that he is making. Either inference plainly had a bearing on the question whether to grant permission to appeal.

I turn, then, to the third stage of Sedley LJ’s test, namely the question whether Walker J would have refused permission to appeal had he been presented with the full picture. I emphasise the test is ‘would have’ and not ‘might have’ refused permission. I have found this the most difficult issue on the application to set aside. Three things in particular are clear from the judge’s reasons for granting permission: (a) he regarded the case as being about witness immunity, and whether the Master had applied the law correctly; (b) he thought that there was room for argument that the Master had not done so; (c) there was the possibility that there could be re-pleading. On balance, I consider that although Walker J might not have granted permission had he known of Coulson J’s judgment, I cannot say for certain that he definitely would not have done so.

Although this was serious non-disclosure by the Appellants, I am unable to say that the facts that were not disclosed undermine Walker J’s reasons for granting permission in a sufficiently clear way so that I can be sure that he would not have granted permission had he known them. I think that Coulson J’s judgment is a knock-out blow so far as the claim is that the witnesses’ alleged wrongdoing in seeking to defeat the damages claim caused the Claimants’ loss. However, I recognise that the Appellants’ case (so far as it can be understood from the Defence and Counterclaim) seems to go wider than the attempted dishonest defeat of the damages claim. Their case seems to be that the firm suffered damage more widely between 2010 and 2016 because the witnesses’ conduct in the judicial review proceedings prevented Mr Hersi from conducting and billing other cases efficiently (see the Defence and Counterclaim at para 73).

Walker J’s final sentence in his reasons recognised that the Appellants’ appeal might not succeed. He therefore did not give permission because he thought the Appellants were definitely going to prevail My impression reading his reasons for granting permission is that he thought the legal issues were sufficiently complex and/or significant to require consideration by the High Court, and I cannot be certain that he would not have been of this mind if he had known of Coulson J’s judgment and the related matters.

I bear in mind that in Sabir, supra, at para 30 the Court of Appeal said that it would be appropriate to set aside the grant of permission to appeal only in ‘exceptional’ cases. I am not persuaded that this is one of those exceptional cases which clearly satisfies Sedley LJ’s three-stage test. It follows that I decline to set aside the grant of permission to appeal. I turn, then, to the issues arising on the appeal.

Witness immunity

When a non-expert witness comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all non-expert witnesses regarding the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause. In Roy v Prior [1971] AC 470, 477, Lord Morris said:

“It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v. Lord Rokeby (1873) LR 8 QB255, Watson v. M'Ewan [1905] AC480). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v. Bretherton [1959] 1QB45). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v. Vibart [1963] 1QB528).”

In Jones v Kaney, supra, paras 16 – 17, Lord Phillips summarised the justifications for witness immunity given by the House of Lords in Darker, supra:

As Lord Hoffmann put it in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208, the absolute immunity rule:

The immunity rule does not merely cover what the witness says or does in the witness box. As Lord Hope pointed out in Darker¸ supra, p447, if the objective of encouraging freedom of speech and communication in judicial proceedings is to be achieved, it would not be sufficient to confine the immunity to evidence given by witnesses while they are actually in the witness box. That is because witnesses seldom enter the witness box without having been interviewed beforehand by a solicitor or (in a criminal case) a police officer. As the Earl of Halsbury LC said in Watson v M'Ewan; Watson v Jones [1905] AC 480, 487, the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation but had not yet commenced. The same view was taken in the case of an expert's report prepared in the knowledge that, if there was evidence to bring proceedings for child abuse, proceedings would be brought and the report would form part of the evidence in those proceedings: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755, per Lord Browne-Wilkinson.

In Taylor, supra, it was held that the immunity extended also to statements made out of court which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution. Lord Hoffmann justified this extension in the following passage at pp214-215:

“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators could be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the enquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192: 'the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution or a possible prosecution in respect of the matter being investigated'. This formulation excludes statements which are wholly extraneous to the investigation – irrelevant and gratuitous libels – but applies equally to statements made by persons assisting the enquiry to investigators and by investigators to those persons or to each other.”

In Darker, supra, at pp449 – 450, Lord Hope approved what Sir Richard Scott V-C said in Bennett v Commissioner of Police of the Metropolis (1997) 10 Admin LR 245, 252, that the immunity extends to statements made or agreed to be made out of court:

“… if these were clearly and directly made in relation to the proceedings in court, for example, witnesses’ proofs of evidence.”

In Darker, supra, the House of Lords considered the limits of witness immunity. The plaintiffs had been defendants in criminal proceedings which had been stayed as an abuse of process. They brought an action against the defendant Chief Constable claiming damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that police officers had fabricated evidence against them. The defendant applied for the statement of claim to be struck out, claiming that the acts alleged were covered by witness immunity. Their Lordships held that the immunity did not extend to things allegedly done by police officers during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses. In particular, it did not extend to the fabrication of false evidence. As to this, as the Court of Appeal observed in Chief Constable of South Wales v Daniels [2015] EWCA Civ 680, although all of the members of the House of Lords were agreed that the immunity did not extend to the fabrication of false evidence, they did not come to that conclusion for precisely the same reasons: see Lord Hope at p 449; Lord Mackay at p 451; Lord Cooke at p 454; Lord Clyde at p 460; and Lord Hutton at p 469.

The limits of immunity were also considered by the Supreme Court in Jones v Kaney, supra. In that case the claimant brought proceedings against the defendant, who was a clinical psychologist. She had acted as the claimant’s expert witness in a personal injury claim. He later sued her for negligence, saying he had been forced by the negligent way she had agreed a joint expert report to settle the case for less than he was properly entitled to. The defendant claimed she enjoyed immunity from suit as an expert witness. A majority of the Supreme Court held that that any exception to the general rule that every wrong should have a remedy had to be justified as being necessary in the public interest and should be kept under review; that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence which they gave in court or for the views which they expressed in anticipation of court proceedings; and that, accordingly, the immunity from suit for breach of duty which expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished.

Although the Appellants place reliance on Jones v Kaney, supra, I do not consider that it provides much assistance to their case. That is because, as Lord Collins was at pains to point out at para 71, the appeal only concerned the liability of what he called the ‘friendly expert’ who is sued by the client on whose behalf she was retained. Also, at para 64 Lord Brown referred to the ‘profound differences’ between expert witnesses and witnesses of fact. I will return to what Lord Collins said in this case at para 82 about misfeasance in public office.

The general rule is that where the immunity applies in civil proceedings, it applies no matter what the pleaded cause of action. In Darker, supra, Lord Clyde said at p456:

“So far as concerns the principles regarding the immunity of witnesses in connection with judicial proceedings, those principles should be of general application regardless of the particular form of the action. Thus, for example, whether the action is one of defamation or of negligence or, as in the present case, of conspiracy to injure and misfeasance in a public office, the same principles should apply. In Marrinan v Vibart [1963] 1 QB 528 Sellers LJ stated, at p535:

‘Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.’”

To this general rule, there are, however, exceptions. As well committal for contempt of court and prosecutions for perjury, proceedings for malicious prosecution, malicious arrest and the malicious procuring of a search warrant will lie in respect of evidence given in court: Gibbs v Rea [1998] AC 786; Roy v Prior[1971] AC 470. In the latter case, Lord Morris said at pp477-478 that the courts have distinguished between actions brought in respect of malicious process and those brought in respect of evidence given in proceedings:

“My Lords, the judgments in the Court of Appeal were based upon the ground that the arrest of the plaintiff was caused by the evidence which the defendant gave in court and that as a witness may not be sued for what he says in the witness box it followed that the action was not maintainable: if a civil action may not be brought in respect of what a witness says on oath in court neither, it was held, should an action lie in respect of instructions to apply for an arrest.

With every respect, I consider that this reasoning fails to give due regard to the nature of an action for malicious arrest. What the plaintiff alleges is that the defendant, acting both maliciously and without reasonable cause, procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. The fact that in order to procure the arrest someone (who might or might not be the defendant himself) would have to give evidence on oath (see section 4 of the Criminal Procedure (Attendance of Witnesses) Act, 1965) does not have the result that an action, if otherwise sustainable, could not be brought. The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (though if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.”

In Chief Constable of South Wales Police, supra, para 33, Lloyd Jones LJ said:

“It is well-established that the immunity or privilege, where it applies, bars a claim whatever the cause of action with the exception of suits for malicious prosecution (and analogous claims involving malicious initiation of criminal proceedings) and prosecution for perjury and proceedings for contempt of court.”

Of relevance in the present appeal is the question whether the immunity applies where the pleaded cause of action is misfeasance in public office. That is one of the causes of action which the Appellants have pleaded in this case. In Baxendale-Walker, supra, Supperstone J held that witness immunity applied to defeat this cause of action. He said:

“92.

In Darker v Chief Constable of West Midlands Police Lord Clyde at 456 said that the principles governing the immunity of witnesses in connection with judicial proceedings “should be of general application regardless of the particular form of the action”. The only exception to this principle of absolute immunity for participants in investigations or proceedings is the tort of malicious prosecution or malicious arrest. However the Claimant does not allege that the Defendants have committed this tort. I reject Mr Susman's submission that the immunity does not apply in the case of an action for misfeasance in public office. The single passage in Three Rivers DC v Bank of England (No 3) at 191E on which he relies does not, in my view, support his submission. Lord Steyn was not there dealing with immunity as such; he was discussing the ingredients of the tort of misfeasance in public office and looking at the state of mind of the Defendant. I also reject Mr Susman's submission that the immunity does not extend to inferior tribunals; it is clear from the authorities that I have referred to that it does.”

The passage from Three Rivers, supra, p191, that is referred to in this paragraph is where Lord Steyn said:

“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”

Paragraph 92 of Baxendale-Walker, supra, was guardedly followed by Underhill J in Iqbal v Solicitors Regulatory Authority[2012] EWHC 4097 (QB), para 49. I say ‘guardedly’ because the judge also referred to the tentative contrary view expressed by Foskett J in Adams v Law Society of England and Wales [2012] EWHC 980 (QB), para 155. In that case Mr Adams sought to sue the Law Society and named individuals for (inter alia) misfeasance in public office following the Law Society’s intervention in his practice. His claim was struck out for reasons other than immunity. However at para 155 Foskett J said:

“155.

Because the issue is academic in the present case given my conclusions on the substantive merits, I propose to say nothing further on this issue save to observe, with respect, that there may not be that much distinction in substance between the essentials of the tort of (certainly “targeted”) misfeasance in public office in the context of possible disciplinary proceedings and malicious prosecution or malicious arrest. Supperstone J does not refer to Autofocus in his judgment and I venture to think that it may be an issue that may need to be canvassed as to whether the immunity can truly arise when a preliminary report (such as the FIR [Forensic Investigation Report] or the Case Note) is prepared with the kind of malevolence necessary to sustain the tort of targeted misfeasance in public office.”

The reference to Autofocus was to Autofocus Limited v Accident Exchange Limited [2010] EWCA Civ 788, which considered Darker, supra.

Even leaving aside that this was an obiter observation by Foskett J I do not, with respect, read this passage as being a statement that in all cases a plea of misfeasance in public office will defeat witness immunity. It seems to me that what the judge was saying was that in a case where the misfeasance alleged is the malicious bringing of disciplinary proceedings, then the immunity might not apply.

However, I do accept that on its face para 92 of Baxendale-Walker, supra, is inconsistent with what Lord Collins said in Jones v Kaney, supra, at para 82, where he said that the general principle does not preclude prosecutions for perjury, or for perverting the course of justice, or for contempt of court, or liability for malicious prosecution, or misfeasance in public office, and he cited Darker, supra, as authority. However, with respect, I do not think it right to regard para 82 as authority for the proposition that a witness who is a public official can be sued for misfeasance in public office in respect of their evidence, in other words, that the core immunity does not apply where the pleaded cause of action is misfeasance in public office in circumstances where it would apply if the cause of action were different. Certainly, Darker, supra, did not establish any such proposition. The pleaded causes of action in that case were conspiracy to injure and misfeasance in public office. As I have said, the House of Lords held that immunity did not apply in relation to the pleaded allegations of wrongdoing against the police relating to the fabrication of evidence. The House did not say that immunity would have applied but for the fact that the cause of action was misfeasance in public office. Hence, Darker, supra, did not establish that the core immunity is displaced where the pleaded cause of action is misfeasance in public office. In fact, Lord Hope said to the contrary at p446:

“The plaintiffs claim damages against the police for conspiracy to injure and misfeasance in a public office. If their claims related only to things said or done by the police officers whilst they were in the witness box they would be excluded by the core immunity.”

Hence, Lord Hope was of the view that a plea of witness immunity is not defeated where the cause of action is misfeasance in public office.

I need to deal in more detail with Chief Constable of South Wales Police¸ supra, because it is a case on which the Appellants place particular reliance. The decision was an appeal by the Chief Constable against the decision of Gilbart J permitting amendments to the Respondents’ pleadings. The Respondents (Mr Daniels, Mr Gillard and Mr Murray) had brought claims against the Chief Constable inter alia for malicious prosecution, unlawful detention, and misfeasance in public office. The proceedings arose out of the murder of Lynette White in Cardiff in 1988. The Respondents were former police officers who investigated the murder. Three men were arrested and, in November 1990, convicted of Ms White’s murder. In December 1992, however, their convictions were quashed on appeal by the Court of Appeal in a judgment which severely criticised the police investigation (R v Paris, Miller and Abdullah (1993) 97 Cr App 99). Following further enquiries, in 2003 another man was convicted of the murder. Thereafter three witnesses who had given evidence in the trial of the original defendants pleaded guilty to perjury in 2008. In addition, criminal proceedings were commenced against 15 people, including the Respondents, who were arrested and charged with various offences in connection with the original police investigation, including conspiracy to pervert the course of justice. A trial, in which Mr Daniels was one of the seven defendants, took place at Swansea Crown Court between July and December 2011 but culminated abruptly, following issues over disclosure, when the Crown offered no evidence. Mr Gillard and Mr Murray were to be defendants in a second trial which, in the event, did not take place. The three men then brought proceedings against the Chief Constable.

The amendments to the pleadings which Gilbart J permitted, and against which the Chief Constable appealed, are set out in paras 14, 15 and 23 of the judgment of Lloyd Jones LJ (as he then was). They included allegations that the Chief Constable had conducted the criminal investigation into the Respondents in an improper manner, including by manipulating evidence, failing properly to disclose material advantageous to their case and maintaining inappropriate and improper relationships with the original defendants in the Lynette White murder trial. It was alleged that this arose out of bad faith on the part of the Chief Constable, in the sense that he knew that the contact was unlawful or was reckless as to its unlawfulness. Further, it was said that the conduct was such that the Chief Constable foresaw that the Respondents would suffer loss from such conduct. It was averred that the Chief Constable thereby committed the tort of misfeasance in public office.

The Chief Constable submitted that immunity applies to participants in criminal proceedings whose function is intimately associated with the judicial phase of such proceedings. He submitted that it extends to statements made out of court which could fairly be said to be a part of the investigation of crime with a view to prosecution, and therefore extends to written statements in schedules of unused material served in criminal proceedings in compliance with Criminal Procedure and Investigations Act 1996. On behalf of the Respondents it was submitted that the absolute immunity is limited to the giving of evidence and that there was therefore no justification for granting it to police officers who deliberately or recklessly fail to make proper disclosure or provide misleading disclosure.

The Chief Constable’s appeal was dismissed. At para 42 Lloyd Jones LJ said:

“… I consider that the immunity applies essentially to statements made by witnesses in the course of giving evidence and to certain limited but necessary extensions of that principle. The fact that an activity may be intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory function, does not, in itself, necessarily give rise to immunity. Neither the decisions in previous authorities nor the identified objectives of the immunity justifies a rule of the breadth which he identified.”

At para 47 he said:

“To my mind, the rationale which denies immunity to the fabrication or destruction of evidence applies equally to its concealment or withholding.”

Accordingly, at para 48 he concluded that the Chief Constable had failed to establish that the conduct alleged in the proposed amended pleadings would clearly fall within the scope of the absolute immunity. He therefore upheld Gilbart J’s order which gave leave to make the contested amendments, whilst leaving the issue of immunity to be revisited by the trial judge on the basis of his findings of fact.

At para 41 of his judgment Lloyd Jones LJ referred with approval to Smart v Forensic Science Ltd [2013] PNLR 32, which is another case relied on by Mr Hersi. Mr Smart was arrested on suspicion of possession of a live bullet. His account was that he believed that it was ornamental not live. The police obtained a forensic analysis from the Defendant company. R, a forensic scientist employed by the Defendant, reported that the bullet was live. Mr Smart then pleaded guilty and was sentenced. Some months later the Crown Prosecution Service informed Mr Smart's solicitors that a review had identified that the bullet was not live. The conviction and sentence were set aside. Mr Smart then brought a civil claim for damages against the Defendant. The Defendant denied that it owed any duty of care to Mr Smart and asserted that R was immune from suit as a witness. The judge struck out Mr Smart's claim on the grounds of immunity. Mr Smart appealed. During the course of the appeal he sought and was granted permission to add a claim against the Defendant for deceit. He alleged that changes to a draft forensic report had been made falsely or recklessly and with the intention that he would act upon the false report to his detriment. The Court of Appeal allowed the appeal. It considered that witness immunity covers the giving of evidence in court and the preparation of evidence with a view to giving it in court, but that it does not cover the fabrication or creation of evidence where that fabrication was never intended to appear in any statement. The Court considered that the inclusion of the allegations of deceit removed the rationale for witness immunity applying to R. Furthermore, as the boundaries between those circumstances in which an immunity exists and those where it will depend on the facts, the court declined to strike out the allegations of negligence or to uphold the conclusion that no duty of care was owed: see Moses LJ at para 28, Aikens LJ at para 36.

I do not read this case as being authority for the proposition, relied on by the Appellants, that where the pleaded cause of action is deceit then witness immunity does not apply whereas it would apply if the cause of action were different (see their Skeleton Argument at para 16). It was a case where the Court of Appeal held that the claims of deceit and negligence should be allowed to go to trial because the nature of the allegations of wrongdoing (the mislabelling of exhibits to the prejudice of Mr Smart) were such that whether or not immunity applied would depend on a close examination of the facts at trial (see Moses LJ at para 38; Aikens LJ at para 36).

Witness immunity: discussion

It is now time to apply these principles to the paragraphs of the Defence and Counterclaim which were struck out by the Master and which are the subject of this appeal.

To begin with, I do not accept that the Appellants are able to avoid the plea of witness immunity, if it is otherwise applicable, on the basis that (so they say) their case is about what the witnesses in the judicial proceedings did not say, rather than what they did say (see their Skeleton Argument at para 18). True, their allegations are that Mr Rimer, Ms Wayte, Mr Lawrence and Mr Flewer did not tell the truth in their evidence. But to say that someone has not told the truth is just another way of saying that they have given false evidence. However, witness immunity bars suit for false evidence as Lord Morris expressly said in Roy v Prior, supra, p477.

Turning to the Defence and Counterclaim, the third sentence of para 53 alleges that the Claimant delayed the judicial review by six years ‘by providing a fraudulent evidence in that other litigation’ (sic). This allegation falls squarely within witness immunity because it relates to the giving of evidence. The fact that the pleaded cause of action in relation to this conduct seems to be misfeasance in public office (see at para 67) does not defeat that immunity, for the reasons I have explained.

Paragraphs 54 – 57 lead to the allegation in para 57a of ‘tortuous conduct’ (which I assume should read ‘tortious conduct’) and the allegation in para 58 that ‘the conclusion of the other litigation proved impossible so far due a fraudulent conduct on the part of the employees of the Defendant or its agents’ (sic). The Master rejected the plea of promissory estoppel in paras 54 and 55, and there is no appeal against that decision. In any event, the Master was plainly right for the reasons he gave to strike out this aspect of the Defence as having no reasonable prospects of success. In relation to the particulars which follow in paras 59 - 62 concerning Mr Rimer, these allege that he gave false evidence in the judicial review proceedings about a firm called Aman Solicitors. As such, this is an allegation which falls squarely within witness immunity.

Similarly, para 63 was properly struck out. First, in that paragraph Mr Hersi alleged that Ruth Wayte, the Legal Director of the LAA ‘provided deliberately or recklessly misleading statement to the High Court and to the 1^st Defendant’, and this plainly infringes witness immunity. The next sentence accuses Ms Wayte of (unparticularised) conduct calculated to harm the Appellants. I will assume this is not covered by witness immunity. However, it falls to be struck out because of a failure to give proper particulars and because it is an abuse of process, as I will explain later in this judgment.

Paragraph 64 alleges that Anthony Lawrence, a solicitor employed by the LAA, ‘provided deliberately or recklessly misleading statements to the High Court’ in respect of the judicial review litigation. This paragraph was correctly struck out on the grounds of witness immunity.

Paragraph 65 alleges that Jonathan Flewer (who I assume is another employee of the LAA) ‘wrote various letters, email and witness statements’ which it is alleged ‘were designed (either intentionally or recklessly) to mislead the High Court or the Claimant; and First Tier Tribunal’ (Mr Hersi having made a number of Freedom of Information Act 2000 requests which led to proceedings before the Tribunal). To the extent that this paragraph alleges that Mr Flewer submitted false evidence or made false statements for the purposes of litigation in the High Court and the Tribunal, then the allegations are covered by witness immunity. To the extent that they allege other conduct not covered by witness immunity then, again, they fall to be struck out for lack of particularisation and as an abuse of process.

Paragraphs 68 and 69 allege that the Lord Chancellor’s claim against Hersi & Co has been brought in order to ‘distract the 1^st Defendant from completing his other litigation or pursuing other complaints’ and that the decision to commence the claim was not made in good faith and was unlawful. This, it seems to me, is in substance an allegation of maliciously bringing civil proceedings, a tort which was recognised by the Supreme Court in Willers v Joyce [2016] 3 WLR 477 as a species of malicious prosecution. As I have explained, proceedings for malicious prosecution of criminal proceedings can be brought in respect of evidence given by a witness in court and the same must be true of maliciously bringing civil proceedings. However, for the reasons which I will set out later in this judgment, these paragraphs fall to be struck out because of the lack of proper particularisation and because they are an abuse of process.

Paragraphs 70 and 71 seek to stay the civil proceedings and to agree a timetable by which the firm can complete its billing. These are not proper matters to be put in a pleading and were properly struck out.

Paragraphs 73, 73a, and 73b allege, variously, ‘constant and torrent misfeasance and fraud by the additional parties (5^th to 16^th) over a number of years (2010 to 2016)’ (sic), and allege that that the same persons committed ‘misfeasance in public office (or tort of deceit or the tort of intentional infliction of economic loss) through their conduct in various civil actions that were brought against their employer (or client in the case of the 16^th Party)’. Some particulars of conduct are then given in para 73(c).

Of these particulars, witness immunity plainly applies in respect of some of them ((i) (responses to letters before claims), (iv)(witness statements), (v) pleadings, (vi) oral evidence, (vii) schedules of evidence, (viii) instructions to counsel, (ix) (‘cases presented to court’), (x) (failing to correct misleading evidence, (xi) (skeleton arguments)).

So far as (viii) is concerned, I am not clear how the Appellants can have knowledge of what is contained in documents that are covered by legal professional privilege, which has not been waived so far as I am aware.

One obvious difficulty standing in the way of the Appellants in relation to these paragraphs is that the ‘parties’ are not, in fact, parties, as I have explained. The Master also noted this at para 26 of his judgment. They therefore fall to be struck out for that reason. However, if that were the only basis for objecting to them then the matter might be capable of cure by allowing the Appellants to issue the Part 20 claim form.

I accept that some of the averments in (xii) and (xiii) relating to (for example) the alleged manipulation of evidence and falsifying evidence are not covered by the principle of witness immunity, for the reasons that I have given. However, they are liable to be struck out for the reasons set out in the next sections of this judgment, namely lack of particulars and abuse of process.

Lack of particulars of fraud, bad faith, etc

I turn to the Lord Chancellor’s complaint about what is said to be the lack of particularity in the Defence and Counterclaim.

As I said in the preceding paragraphs, some of the misconduct alleged in the Defence and Counterclaim is not, for the reasons given in Darker, supra, covered by witness immunity. In addition, para 32 of the Appellants’ Skeleton Argument argues that ‘the vast majority of the Appellant’s complaints’ (sic) relate to what was said outside witness statements, and there is reference to over 200 items of correspondence. I will assume for the purposes of this judgment that at least some of these communications (emanating I assume from the individuals named in the pleading) do properly fall outside the scope of witness immunity in that they are not within Sir Richard Scott V-C’s category of immune statements in Bennett, supra, p252, namely those which are ‘clearly and directly made in relation to the proceedings in court’.

The Lord Chancellor responds by arguing that to the extent that the allegations in the Defence and Counterclaim are not subject to witness immunity then they fall to be struck out because of the Appellants’ failure to give proper particulars of the allegations of fraud, bad faith, dishonesty and recklessness and other wrongdoing which are contained within them.

I have set out CPR Practice Direction 16, para 8.2, earlier in this judgment. It codifies principles about pleading fraud which have been long been recognised. Allegations of fraud must always be properly particularised: in Three Rivers District Council v Governor and Company of the Bank of England (No 3), supra, Lord Hope observed (at para 51) that, ‘The more serious the allegation of misconduct, the greater is the need for particulars to be given which explain the basis for the allegation’. More specifically, an allegation of fraud is not supported by an allegation that the defendant made a representation that he knew or ought to have known to be untrue. As May LJ put it in Lipkin Gorman v Karpnale Ltd, [1989] 1 WLR 1340, pp1351-1352:

“… where fraud or dishonesty is material this must be clearly pleaded, if not explicitly, then in such terms that the reader of the pleading can be left in no reasonable doubt that this is being alleged. … where an element in the alleged fraud or dishonesty relied on is the other party's knowledge of a given fact or state of affairs, this must be explicitly pleaded. It is ambiguous and thus demurrable, if fraud is relied on, to use the common “rolled up plea” that a defendant knew or ought to have known a given fact. If it is desired to allege and plead fraud and, in the alternative, negligence based on similar contentions, then the former must be pleaded first and clearly and the relevant part of the plea confined to fraud. The allegation in negligence and then be pleaded separately and as a true alternative contention”.

In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd. [1979] Ch. 250, 268 Buckley LJ said:

“An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.”

Bad faith is an essential element of the tort of misfeasance in public office. The requirements of this tort were authoritatively set out by the House of Lords and in particular by Lord Steyn in Three Rivers DC v. Bank of England (No. 3), supra, pp191 – 192, part of which I have already quoted. As with fraud, the cases make clear that an allegation of bad faith must be properly particularised. As Megaw LJ said in Cannock Chase District Council v Kelly [1978] 1 WLR 1, at p6:

“. . . bad faith, or, as it is sometimes put, 'lack of good faith', means dishonesty: not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant. If a charge of bad faith is made against a local authority, they are entitled, just as is an individual against whom such a charge is made, to have it properly particularized. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularized, the pleading may be struck out.”

I have no hesitation in concluding that proper particulars have not been given of the numerous allegations of very serious wrong doing including dishonesty and bad faith that the Appellants make against the persons named in the Defence and Counterclaim. The deficiencies are many, various and acute. Taking the allegations against Mr Flewer as an example (para 65 of the Defence and Counterclaim), there is afailure specify the documents said to have been false or misleading; no particulars of the alleged falsity or inaccuracy are given; and there are no particulars of Mr Flewer’s state of mind. The same criticism can be made of para 63 in relation to Ms Wayte. The same can also be said of the effective plea of the malicious prosecution of civil proceedings contained in paragraphs 68 and 69. No particulars of malice are given. In short, there is a total absence of primary pleaded facts from which an inference of dishonesty or bad faith could properly be drawn.

Supperstone J said in Baxendale-Walker, supra, para 70, that where the court is being asked by the Claimant to allow allegations of serious wrongdoing against reputable professionals to go to trial, the Claimant has the burden at trial of persuading the court to the standard of proof required to prove the most serious of allegations (see Secretary of State for the Home Department v Rehman [2003] 1 AC 153 at para 55). That is why an allegation of fraud must be supported by cogent evidence and why the court usually begins with the assumption that an innocent explanation will be preferred (ibid. at paras 54-55; and Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at para 49).

I agree with the Lord Chancellor’s submission that the Appellants have done little more than make bare assertions of dishonesty by the LAA’s employees. They have provided no particulars of any malice or dishonesty, and no explanation whatsoever as to why the conduct complained of is only consistent with dishonesty and not with any innocent explanation. This is not conduct which intrinsically suggests fraud or deceit in any way. As such, they have failed to plead properly essential particulars of his claim.

Should I allow the appeal on terms that the Appellants file a re-pleaded Defence and Counterclaim for those parts of the pleading which are not subject to witness immunity? I do not consider that I should. Like Walker J, I do not accept the excuse that Mr Hersi is an immigration solicitor with little experience of pleading. He has seriously impugned the behaviour of a number of named individuals. The rules about pleading fraud properly apply to him as they do to any pleader. In any event, he was represented before the Master by leading counsel and even then there was no properly pleaded document. These proceedings have been on foot since June 2016. They were put on notice of this issue since at least the service of the Lord Chancellor’s Reply and Defence to Counterclaim in September 2016. In short, there has been ample opportunity for the Appellants to properly plead their case and they have failed to do so.

Paragraph 23 of the Appellants’ Skeleton Argument argues that Master should not have granted summary judgment because there is a principle that ‘for cases concerning fraud it is inappropriate to grant summary judgment unless there are exceptional circumstances’. It goes on to argue that it is ‘impermissible on a Part 24 application for summary judgment for the court to conduct a mini (fraud) trial without hearing witnesses and without disclosure and cross-examination’, and the case of Alpha Rocks Solicitors v Alade [2015] 1 WLR 4534 is cited in support.

In my judgment these arguments miss the point. The Master gave summary judgment on the Counterclaim because once the offending paragraphs had been struck out, there was nothing left of it. For the reasons I have given the Master was right to strike out these paragraphs and so right to give summary judgment. Nor does Alpha Rocks, supra, assist the Appellants. In that case the judge struck out a statement of case on the basis that the claim was improperly or fraudulently exaggerated. In doing so he decided that a solicitor was lying and that other witnesses had been untruthful without their being cross-examined. In effect, he had conducted a fraud trial on the papers. The Court of Appeal held that he was wrong to have done so because ‘he should … have realised that striking out was too blunt an instrument to deal with the heavily conflicting evidential accounts of the parties’ (para 29). At para 22 the Court had reminded itself that caution should be exercised in striking out the entirety of a claim on the grounds that part has been exaggerated because of the draconian effect of so doing and because at trial events might appear less clear cut than at an interlocutory stage. It is therefore clear that the Court of Appeal was addressing a wholly different scenario than the one before me, where the parties alleging fraud have abjectly failed to plead their case properly.

Abuse of process

As I have explained, in his Respondent’s Notice the Lord Chancellor highlights the failure by Mr Hersi and his counsel to challenge the LAA’s witnesses in the judicial review. He submits that to permit the Counterclaim to proceed would be to permit an improper collateral attack on the outcome of the judicial review and would be an abuse of process. He submits that preventing such collateral attacks is one of the reasons for the principle of witness immunity.

In his judgment the Master referred to the fact that some of the points being pursued by the Appellants should be taken in the judicial review proceedings (see eg at paras 18 and 19 of his judgment where, having referred to the claim of suppression of evidence in the judicial review proceedings, the Master said, ‘… the difficulty with those pleadings is that they relate to points which should have been taken in the judicial review proceedings, or indeed could still be taken in those judicial review proceedings …’). Whilst not explicitly framing his conclusions in terms of abuse of process, it seems clear to me, with respect, that that was what the Master had in mind.

It appears to me that the Lord Chancellor’s submission is, in substance, an argument that the allegations of wrongdoing in the Counterclaim are an abuse of process within the principle in Henderson v Henderson (1843) 3 Hare 100. That is because they were not pursued in the judicial review when they could and should have been because they were directly relevant to the issues in that litigation. I therefore need to begin with a discussion of abuse of process in this context. What follows is a grateful adaptation of the judgment of Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160, paras 17 – 26, with which the other members of the Supreme Court expressly agreed. Fortunately, the complicated factual background to that decision, concerning as it did the infringement of a European patent for an aircraft seating system, does not matter for the purposes of this judgment.

Lord Sumption said that there is a principle, first formulated by Wigram V-C in Henderson v Henderson, supra, p115, which precludes a party from raising in subsequent proceedings matters which were not but could and should have been raised in earlier proceedings. There is also the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying this principle (along with other manifestations of the doctrine of re judicata which Lord Sumption identified).

The Henderson case was an action by the former business partner of a deceased for an account of sums due to him by the estate. There had previously been similar proceedings between the same parties in Newfoundland in which an account had been ordered and taken, and judgment given for sums found due to the estate. The personal representative and the next of kin applied for an injunction to restrain the proceedings, raising what would now be called cause of action estoppel. The issue was whether the partner could reopen the matter in England by proving transactions not before the Newfoundland court when it took its own account. Wigram V-C said, at pp114–116:

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points on which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time … Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is, whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule.”

At para 19 of his judgment in Virgin Atlantic Airways Ltd, supra, Lord Sumption said that although Wigram V-C’s statement of the law is now ‘justly celebrated’, for many years it was rarely invoked. He said that the modern law on the subject really begins with the adoption of Wigram V-C’s statement of principle by the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC581. The case was an appeal from Hong Kong, in which the appellant sought to unsuccessfully avoid the exercise by a mortgagee of a power of sale in two successive actions, contending on the first occasion that the sale was a sham and that there was no real sale, and on the second that the sale was fraudulent. Lord Kilbrandon, giving the advice of the Board, distinguished at pp 589–590 between res judicata and abuse of process:

“The second question depends on the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with the view expressed by McMullin J that the true doctrine in its narrower sense cannot be discerned in the present series of actions, since there has not been, in the decision in no 969, any formal repudiation of the pleas raised by the appellant in no 534. Nor was Choi Kee, a party to no 534, a party to no 969. But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”

Lord Kilbrandon referred to the statement of Wigram V-C in Henderson v Henderson as the authority for the ‘wider sense’ of res judicata, classifying it as part of the law relating to abuse of process.

The implications of the principle stated in Henderson v Henderson were more fully examined by the House of Lords in Arnold v National Westminster Bank plc [1991] 2AC93. The question at issue in that case was whether in operating a rent review clause under a lease, the tenants were bound by the construction given to the very same clause by Walton J in earlier litigation between the same parties over the previous rent review. The Court of Appeal had subsequently, in other cases, cast doubt on Walton J’s construction, and the House approached the matter on the footing that the law had changed since the earlier litigation. Lord Keith of Kinkel began his analysis by restating the classic distinction between cause of action estoppel (p104), and issue estoppel (p105):

“Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened …

Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.”

At para 22 of Virgin Atlantic Airways Ltd, supra, Lord Sumption said that Arnold v National Westminster Bank plc, supra, is authority for the following propositions:

At para 24 Lord Sumption said that the principle in Henderson v Henderson, supra, has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. He said that he point has been taken up in a large number of subsequent decisions, including Johnson v Gore-Wood & Co [2002] AC 1. This appeal arose out of an application to strike out proceedings on the ground that the plaintiff’s claim should have been made in an earlier action on the same subject matter brought by a company under his control. Lord Bingham took up the earlier suggestion of Lord Hailsham in Vervaeke (formerly Messina) v Smith [1983] 1 AC 145, 157 that the principle in Henderson v Henderson, supra, was ‘both a rule of public policy and an application of the law of res judicata’. He expressed his own view of the relationship between the two at p31 as follows:

“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. 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. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

The rest of the Committee, apart from Lord Millett, agreed in terms with Lord Bingham’s speech on this issue.

I turn to a consideration of these principles in light of the facts of the present appeal.

I have no hesitation that it would an abuse of process within the principle in Henderson v Henderson to allow the Appellants’ Defence or their Counterclaim to go forward on the basis of allegations of wrongdoing said to have taken place in connection with the judicial review proceedings when those allegations were not pursued in those proceedings. The Counterclaim pleads that the Lord Chancellor rendered it impossible for the firm to conclude the judicial review in a timely fashion, and/or sought to defeat it, through conduct said to have been dishonest and fraudulent and to have amounted to the various pleaded torts. The proper forum in which those allegations should have been litigated and determined was obviously the judicial review. In the words of Wigram V-C, these issues ‘properly belonged to the subject of litigation.’

For example, one of Mr Hersi’s complaints is that Mr Rimer put forward a false explanation as to why another firm, Aman Solicitors, was granted a contract (see the Defence and Counterclaim at para 60). He also says that Ms Wayte continued to make false statements about Aman Solicitors in connection with the judicial review proceedings (see para 62 and 63). Aman was one of the relevant comparators in the judicial review. Hence, if false evidence been given about it, then this was of the plainest relevance to the issues before Coulson J. But no application was made to cross-examine Mr Rimer or Ms Wayte to the effect that they had given and maintained dishonest explanations for why Aman was granted a contract, nor as I have said did counsel pursue any of this aspect of the case. It would be unjustified, vexatious and abusive to allow these matters to be pursued in a second round of litigation and especially so because they involve serious allegations of deliberate and dishonest wrongdoing by named the LAA employees.

Part of the Appellants’ case is that to uphold witness immunity, or otherwise not to let the Counterclaim go forward, would mean that a wrong would go without a remedy (see Appellants’ Skeleton Argument at para 27). But the answer to this is that the Appellants had a remedy for the wrongs they claim have been done to them. That remedy lay in the judicial review proceedings, however they chose not to pursue it.

Conclusion

For these reasons, the Appellants’ appeal against the Master’s decision is dismissed.