No A2/2000/2884/A
A2/2000/2884

Neutral Citation Number: [2001] EWCA Civ 1286
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)   
APPLICATION FOR PERMISSION TO CROSS-APPEAL 
WITH APPEAL TO FOLLOW IF GRANTED
APPLICATION FOR PERMISSION TO APPEAL 
AN EXTENSION OF TIME AND PERMISSION 
TO RELY ON FURTHER EVIDENCE WITH 
APPEAL TO FOLLOW IF GRANTED
Royal Courts of Justice
Strand
London WC2

Wednesday, 11th July 2001
B e f o r e:

LORD JUSTICE MUMMERY

MR JUSTICE WILSON
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CARSON

- v -

MANWEB Plc and Another

CARSON

-v-

MANWEB Plc and Another
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant Mr Carson appeared in person
MR T HOLLOWAY (Instructed by Berrymans Lace Mawer of Liverpool) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE MUMMERY: This is an application for permission toappeal. It is made by Mr Roy Carson acting in person. The decision which he wishes to appeal is that of Mr Justice Alliott on 20th July 2000. He dismissed Mr Carson's claims against the first defendant, Manweb Ltd, having refused Mr Carson permission to amend his case against them to plead trespass and having decided there was no case against Manweb for malicious prosecution. The judge also refused leave to amend to plead trespass against the second defendant, the Chief Constable of Merseyside Police. He either struck out or gave summary judgment in favour of the police in respect of Mr Carson's claim of misfeasance in a public office. He allowed all other claims pleaded by Mr Carson against the police to proceed to trial by jury.
2.	When the paper application for permission came before the single Lord Justice, Lord Justice Potter, he directed that it should be adjourned to be heard in open court at an inter partes hearing with the appeal to follow immediately, if permission is granted.
3.	The background to this case is that Mr Carson owns a club in Liverpool at 28 Exchange Street East. It is called the Crooked Billet. He is also the managing director and majority shareholder in a company called Urban Firm Ltd, the lessee of premises at 16 to 17 Victoria Street, Liverpool under a tenancy agreement with Liverpool Council. The premises at Victoria Street consist of a basement occupied by a bar called Casey's Bar, a club on the ground floor called the She Club and a restaurant on the first floor called La Bodega. Electricity was supplied to the Crooked Billet and Victoria Street premises by Manweb.
4.	On about 5th October 1992 Mr Carson entered into an agreement with Mr Peter Fearon for the hire of the basement premises in Victoria Street for the purpose of holding a function there on 11th October 1992, a Sunday. It is alleged that the police went to those premises and arrested Mr Fearon and another on suspicion of illegal rave. The police called Manweb to the premises on suspected tampering with electricity meters. On 12th October 1992 it is alleged in the statement of claim that agents of Manweb, along with PC Gold and other police officers, went to the Crooked Billet premises intending to cut off the electricity and to remove the meters. Mr Carson's case is that the seals on the meters there were not broken, but Manweb representatives removed meters from the premises and disconnected the electricity supply. Mr Carson claims that between that date in October 1992 and the beginning of December 1992 Manweb were making accusations against him of committing offences and of unlawful interference with Manweb's meters at the She Club. On 15th October 1992 Mr Carson went to St Anne's Street Poplice Station where he was arrested, unlawfully detained and assaulted. He remained there from about 2.30 until 5 pm when he was granted bail.
5.	On 18th November 1992 he was charged with abstracting electricity at the She Club without due authority contrary to Section 13 of the Theft Act 1968. The matter came before the Magistrates' Court and Liverpool Crown Court at the beginning of February 1994. The prosecution terminated the next day in his favour.
6.	On 12th October 1998 a writ was issued. Mr Carson is named as the sole plaintiff. Manweb and the Chief Constable of Merseyside Police are the defendants. The claims are for damages against the first and second defendants in respect of wrongful arrest, false imprisonment, assault, malicious prosecution and misfeasance in public office arising out of the incident on 12th October 1992, the plaintiff's damages exceeding £100,000. The claimant claims interest on the damages award and costs. The writ also includes a claim for personal injuries.
7.	The issue of proceedings was preceded by a letter before action written on 2nd February 1998, in which solicitors acting for Mr Carson - Norman Jones Grayston - wrote to Manweb as follows:
“We have been consulted by the above [that is Mr Roy Carson] to pursue a claim against you for damages in respect of assault, wrongful arrest, false imprisonment and malicious prosecution as well as damages for breach of contract and in negligence.
We enclose a separate letter we have also sent to the Chief Constable of Merseyside.
We note that you were instrumental in bringing about a prosecution against our Client for the alleged abstraction of electricity at the She Club in Liverpool. As a consequence of your actions you brought about the removal of electricity from three premises which our Client was operating from namely The Crooked Billet, Maxims, 42 Street and the La Bodega Restaurant. As you will be aware on 2nd February 1994 the Judge directed that the Jury should find our Client not guilty having regard to the evidence brought. He was very critical of the quality of the evidence and questioned the wisdom of bringing this prosecution in the first place.
Our Client has suffered not only the distress and trauma of the criminal proceedings hanging over him for a period of 18 months but also has lost significant sums of money as a consequence of the actions that you have carried out with regard to his business and loss of revenue as a consequence.”
8.	It will be noted that there was no mention in that letter - and, similarly, no mention in the endorsement on the writ - to any claim for trespass. The first mention of a claim for trespass was in the statement of claim served on 15th March 1999, by which time more than six years had passed since the alleged trespass had been committed. The reference is in paragraph 8 of the statement of claim, which reads:
“In the premises the representatives of the First and Second Defendants gained entry to the Plaintiff's premises unlawfully and/or their entry was a trespass.”
9.	The matter came before Mr Justice Alliott on an application by Manweb to strike out, or for summary judgment in respect of, the claim against them for malicious prosecution. There also came before Mr Justice Alliott, in a rather unsatisfactory and informal manner, an application by counsel then acting for Mr Carson for permission to amend the pleadings in order to allege trespass. It was proposed to add allegations of trespass against the defendants in respect of both the Crooked Billet premises and the She Club premises. The judge dealt with the case by making the following order:
“1. The claimant's application to amend his writ to include a claim in trespass be refused;
2. The claimant's claim against [Manweb] be struck out;
3. The claimant's claim against [police] for misfeasance in public office be struck out.
4. The case management conference ..... be adjourned ..... “
10.	As to the claimant's means by the Legal Services Commission, he made an order that the claimant pay Manweb's costs of the action subject to detailed assessment. The application to pay those personally was adjourned sine die.
11.	On his application to obtain permission to appeal against that order Mr Carson has to establish that he has a real prospect of success. Mr Carson addressed the court at some length in support of his application and in reply to the submissions made by Mr Holloway, on behalf of Manweb, and Mr Waldron, on behalf of the police. It is clear that Mr Carson is very aggrieved about the conduct, which he alleges was committed by both defendants. He alleges that Manweb was the instigating force behind the prosecution. They accused him, he says, of stealing electricity and they were behind the prosecution which failed. As for the police, he believes that - to use his own words - they have “fitted him up” and they have abused their power in their treatment of him in the ways pleaded in the statement of claim. 
12.	Coming to the particular points raised on the appeal, he says, in respect of the refusal of permission to amend to add trespass, that this omission from the writ, like the omission in the earlier letter before action, wa os not his fault. He says, in respect of the misfeasance in public office claim, that that was a matter which had been included by his lawyers. As far as he was concerned, the police have abused their power in the way that falls within the ingredients of that cause of action. He told the court many other things int he course of his submissions: his problems with legal aid, misrepresentations and the serious damage he has suffered to his remuneration and his financial position. What he wants is a fair hearing and an opportunity to clear his name.
13.	I shall consider, in the light of those submissions and those made by counsel for Manweb and the police, the individual points. I deal, first, with the trespass claim against Manweb. In my judgment the judge was entitled to exercise his discretion, insofar as he had one, to refuse to allow this amendment. As already stated, it was not mentioned until the statement of claim was served on 15th March 1999. By that time more than six years had passed since the alleged trespass had been committed. That means that the claim is statute barred, unless it can be brought within the provisions of Rule 17.4 of the Civil Procedure Rules. Rule 17.4 deals with amendments to the statement of case after the end of the relevant limitation period. Rule 17.4.1 provides:
“This rule applies where -
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and 
(b) a period of limitation has expired under -
(i) the Limitation Act 1980;
..... “
14.	The remainder of that paragraph is immaterial.
“(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”
15.	In my judgment, the judge was right to conclude that the trespass claim which Mr Carson sought to add in respect of the Crooked Billet did not arise out of the same facts, or substantially the same facts, as the claim for malicious prosecution in respect of which Mr Carson sues Manweb. It follows that the judge had no discretion to allow an amendment beyond the limitation period. Even if the judge was wrong about that and the trespass claim does arise out of the same facts, then the discretion was one which he was entitled to exercise by refusing the amendment in view not only of the delay that there had been in applying for it in the first place but also in respect of the delay there had been, having regard to earlier directions made in respect of such an  application. The directions had not been complied with.
16.	As to the claim for trespass to the She Club premises the matter can be dealt with quite briefly. Mr Carson is not the owner of the She Club premises or entitled to possession of it so as to entitle him to claim trespass. A shareholder, even a majority shareholder as he is, in a company is not entitled, any more than a director of a company is, to bring a claim for trespass in respect of premises owned by the company, in which he owns the shares or of which he is a director. In those circumstances I would not grant permission to appeal against the judge's decision to refuse permission to amend the claim to include trespass against Manweb.
17.	Coming next to the claim for malicious prosecution, Mr Carson alleges malicious prosecution against Manweb in paragraph 20 of the statement of claim. He makes the general allegation that Manweb -
“maliciously instituted some process without reasonable and probable cause which caused the Plaintiff damage and which terminated in the Plaintiff's favour in that a not guilty verdict was directed and entered in favour of the Plaintiff and the charges were dismissed.”
18.	Under the particulars of malice of Manweb the only significant one is (f) where he alleges as follows:
“The servants and/or agents of the First Defendants falsely and maliciously gave information about an alleged offence to a Police Officer in respect of the electricity supply to the premises and stated their willingness to testify against the Plaintiff.”
19.	It should be noted that he does not allege that Manweb had prosecuted him. What they had done was to give information and to offer to give information. The police were the prosecutors. Nevertheless, there are circumstances in which a person, although not technically a prosecutor, may be liable for the tort of malicious prosecution. Mr Carson seeks to argue that this case comes within that line of authority, of which the most recent and authoritative decision is of the House of Lords in Martin v Watson [1996] 1 AC 74. The House of Lords held that where the defendant to a malicious prosecution claim was not technically the prosecutor, the test of liability is whether the complainant or informant can properly be regarded as responsible for a prosecution by having been actively instrumental in setting it in motion, so that in substance, the informant was a prosecutor. The House of Lords held that such a person can be liable if, first, they gave information to police falsely and were maliciously stating that the person, the claimant in tort, was guilty of an offence and secondly the facts relating to the alleged offence were solely within the knowledge of the complainant, so that the prosecuting officer had not exercised any independent discretion in respect of the substantial decision to prosecute. 
20.	Attempts were made in the course of proceedings to obtain further and better particulars of paragraph 20 (f). The upshot is, as explained by Mr Holloway in the course of his helpful submissions, that Mr Carson was seeking to rely on evidence which simply does not exist. When reference is made to the statements given to police by Manweb's employers - Gauller and Goulding - it appears that they gave information about the interference with the meters, but it was not alleged that Mr Carson had been guilty of abstracting electricity without due authority which was the charge against him in respect of the She Club, let alone that he was the person responsible for interfering with the meters. There was no naming of him as a culprit. The information which led the police to make a decision to prosecute was not solely within the knowledge of Manweb or its employees.
21.	In those circumstances it is not possible, in my view, on the matters as pleaded and on the evidence available, to satisfy the requirements of Martin v Watson. Manweb did not, through their employees, indicate to police that Mr Carson was the person guilty of the offence; the facts relevant to the offence with which he was charged, namely abstracting electricity, was not within solely the knowledge of Manweb and its employees, so there was room for independent discretion in the prosecution. The judge was right to strike out or enter summary judgment in respect of the malicious prosecution claim against Manweb. There is no real prospect of Mr Carson succeeding in appealing that part of the judge's order. The judge was right to dismiss the entirety of the action against Manweb.
22.	I turn to the police. As to the claim against them for trespass, the position is the same. No such claim was included in the writ. On the application to amend, Mr Waldron adopted the submissions made on behalf of Manweb. The position on the trespass claim is therefore the same. No amendment was allowed. As to the claim for misfeasance in a public office, I turn, first, to the way in which that is pleaded in paragraph 17 of the statement of claim:
“Further and/or in the alternative the conduct of the Second Defendant and/or his servants or agents constitutes a misfeasance in a public office in that:
(i) The Defendant was a Public Officer.
(ii) He misconducted himself in his office in that he either knowingly acted, knowing that he had no power to do so, or he maliciously abused his office.
(iii) It was foreseeable that the Plaintiff would be injured by this misconduct
and;
(iv) As a result of it the Plaintiff was caused damage.
Particulars of misfeasance of the second defendant
The Plaintiff relies on the matters hereinbefore set out.”
23.	The “matters hereinbefore set out” dealt with all the facts realted to the more “traditional torts” of false arrest, assault and malicious prosecution.
24.	In respect of the claim of misfeasance in a public office, Mr Carson is not relying on any more or different facts than those pleaded for all the causes of action. The judge struck out the claim. The wording of the claim is redolent of the language of the decision in Three Rivers District Council and Others v Bank of England. The act which constitutes misfeasance in public office is the exercise of power by public officers causing injury to a claimant or the probability of inflicting injury on the claimant. Damages are recoverable if there are foreseeable and probable consequences of the act. The judge struck out this claim in the exercise of his case management powers. He had in mind not only the way in which the case was put, but also the fact that this would be a case where trial was by jury. The judge was entitled, in the exercise of his case management powers, to remove this as a cause of action. The position, in my view, is that, factually, misfeasance in a public office is not Mr Carson's case. He relies on those facts already pleaded in support of other claims against police legality. Misfeasance provides complications for all concerned arising from the all-embracing nature of the claim and its problematical relationship as to traditional torts. Misfeasance in a public office is unnecessary for Mr Carson to obtain what he wants, which is justice at a fair trial. It is alsoundesirable and serves no practical purpose. The removal of the misfeasance in public office claim does not in any way prejudice Mr Carson's case.
25.	For those reasons there is no real prospect of the appeal succeeding. I would refuse permission to appeal to Mr Carson. The overall result is that I would refuse permission to appeal against any part of Mr Justice Alliott's order. The threshold test for obtaining permission has not been satisfied.
26.	MR JUSTICE WILSON: I agree.
Order: Application refused