IN THE HIGH COURT OF JUSTICE BETWEEN AND. THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN KADIR MOHAMMED Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honorable Mr. Justice V. Kokaram Date of Delivery: 10 th June 2014 Appearances: Ms. Nyala Badal instructed by Mr. Ramesh Lawrence Maharaj S.C. and Mr. Vijaya Maharaj for the Claimant Mr. Lee Merry instructed by Ms. Avaria Niles for the Defendant DECISION 1. Before this Court is the Defendant s application to strike out the Claimant s claim for damages for false imprisonment and malicious prosecution on the ground that it discloses no ground for bringing those claims and is an abuse of process. 2. Kadir Mohammed, the Claimant, was charged and prosecuted for the criminal offence of causing the death by dangerous driving of a pedestrian known as Ramnauth. The prosecution was conducted subsequent to two inquests which were held into the death of Ramnauth. The second, and more relevant inquest, was held between the period 2005 and At the conclusion of that inquest, the Coroner, Magistrate Margaret Alert, was satisfied that sufficient grounds were disclosed for charging the Claimant with causing death by dangerous driving and gave instructions for a warrant to be issued for his arrest. Page 1 of 14

2 3. At that inquest the evidence revealed that whilst the Claimant was driving in a southerly direction along the Southern Main Road, Chase Village he tried to swerve away from a pothole without success and when his vehicle entered into the pothole he lost control of the vehicle, it mounted the pavement and struck the pedestrian. 4. The Claimant was subsequently arrested on the warrant issued by the Coroner and prosecuted for the offence in the Chaguanas Magistrates Court. However on 9 th May 2012, after several hearings and submissions made on preliminary matters, the prosecution eventually indicated that it will not lead any evidence and the matter was dismissed. Incidentally, the prosecution elected not to pursue the matter after a no case submission was made by the Claimant s attorney at law. 5. The Claimant contends that there was no legal nor factual basis on which he could have been arrested or prosecuted and that is the basis of his claim against the Defendant for damages for false imprisonment and malicious prosecution. 6. The Defendant has not yet filed its defence. At the very first CMC it filed its application to strike out the claim and it has not filed any affidavit evidence but relies on the documents annexed to the Claimant s Statement of Case. 7. The Defendant contends that the claim for false imprisonment cannot be sustained as the Claimant was arrested pursuant to a warrant and that it is therefore afforded an absolute defence pursuant to section 49 of the Police Service Act Chapter 15:01. With respect to the claim for malicious prosecution the Defendant contends that based on the evidence available before the Coroner and in the possession of the police (which was exhibited to the Claimant s Statement of Case) the prosecution had reasonable cause to arrest and prosecute the Claimant for the offence and it cannot be demonstrated that the prosecution was conducted maliciously. The Defendant also contends that the main ingredients of the charge were made out on the evidence and relies upon key ingredients of the Claimant s driving at an excessive speed and the Claimant s inability to control the vehicle as elements which could have led a reasonable prosecutor to have charged and prosecuted the Claimant for the offence of dangerous driving. The Defendant argued that the fact that the prosecution was discontinued is not a concession that there was no evidence against the Page 2 of 14

3 Claimant as indeed prosecutions can be discontinued for a variety of reasons as set out in the Prosecutors Code and in any event based on the evidence available and disclosed it cannot be said that the prosecution was malicious. The Defendant characterizes these proceedings in tort as an abuse of process being a veiled attempt to circumvent what really should have been a claim for judicial review of the Coroner s decision long after the requisite time period to do so. 8. The Claimant contended that the Claim ought not to be struck out at this stage. It is contended that on the claim for false imprisonment it is for the Defendant to justify the arrest. The warrant must be adduced into evidence for the Defendant to avail itself of the statutory defence. Further that on its face the arrest was bad in law being executed 17 months after the issue of the warrant. On the claim for malicious prosecution it is submitted that the issues of reasonable and probable cause for the arrest and malice are triable issues and a claim ought not to be struck out at this stage without hearing the evidence. The main triable issue as submitted by the Claimant is that there is no basis in law and fact to charge and prosecute the Claimant. It also contends that evidence of the absence of reasonable and probable cause can also be evidence of malice. 9. The Claimant has exhibited all the available evidence which was before the Coroner when she made her decision that there was sufficient cause to prosecute the Claimant for the crime. Further he has exhibited the statements which were subsequently disclosed to him in the ensuing prosecution. In examining this evidence and the pleadings, accepting the main allegations as being true for the purpose of this application, I am of the view for the reasons set out in this judgment that the claim for false imprisonment cannot be sustained. However it cannot be successfully argued at this stage that there is no ground for bringing his claim for malicious prosecution. 10. It is an accepted fact in these proceedings that the Claimant was arrested pursuant to a warrant issued by the Coroner. In those circumstances the Defendant has an absolute defence to the claim for false imprisonment and it will not be permissible to examine the acts that lead to the issue of that warrant. Page 3 of 14

4 11. I am not however of the view that the claim for malicious prosecution is an abuse of process. It is open to the Claimant to contend that the prosecution was continued without any reasonable and probable cause and done maliciously to satisfy the elements of the tort of malicious prosecution. 12. The question of whether the Claimant can demonstrate that the police and prosecution had no reasonable and probable cause or acted maliciously raises triable issues which must be further investigated. In light of the available evidence disclosed by the Claimant there is some basis for making this claim of malicious prosecution. Whether he has a realistic prospect of success in sustaining the claim at trial is an entirely different enquiry and does not fall for determination on this application. The Court is not at this stage entrusted with the task of weighing the prospects of success of that claim although it may be invited to do so at a later stage. At this stage all that is necessary is to demonstrate that the claim is not plainly and obviously unsustainable or groundless. Although no specific averment has been made to indicate that the prosecution acted maliciously the absence of reasonable and probable cause can in some cases be evidence of malice. However such a determination must be made on the assessment of evidence and in particular assessing the motives of the prosecutor. Such an assessment cannot be made by a cold examination of sterile facts as are presented here but from a thorough enquiry into the reasons given by the prosecutor. It is not appropriate then on this application to sift and to weigh the relative strengths of this proposition on the facts as pleaded by the Claimant; all that I can say is that it is not demonstrated that this claim is wholly unwinnable. Striking out a statement of case 13. The application to strike out the claim is made on two limbs. First that there is no ground for bringing the claim and second that it is an abuse of process. In CPR rule 26.2 (c) if there is a ground for making the claim then the claim ought not to be struck out. Where therefore the factual allegations are accepted the Defendant must demonstrate that the Claimant cannot succeed either on those facts or as a matter of law. The Court is not assessing the merits or strengths of the Claimant s case as it would in a summary judgment application. The exercise is confined at looking at the Claimant s case as presented and asking the simple question is this doomed to fail without any further investigation of the facts. Page 4 of 14

5 14. The Court in exercising its discretion to strike out a claim must give effect to the overriding objective. In UTT v Ken Julien and others CV I examined the principles in play in striking out applications: A striking out application is a draconian remedy only to be employed in clear and obvious cases where it is possible to demonstrate at an early stage before further management of the claim for trial that the allegations are incapable of being proved or the Claimant is advancing a hopeless case, either accepting the facts as pleaded as proven or as a matter of law. See Caribbean Court Civil Practice 2011, Mc Donald Corporation v Steel [1995] 3 AER 615. Zuckerman on Civil Procedure, A. Zuckerman p I do not think that the ethos of the CPR is to lightly knock out litigants on preparatory strikes without the opportunity of examining the strengths and weaknesses of their case. For this reason our rule 26 (2) (c) has abandoned the word reasonable and has now made the test quite a simple exercise of determining whether there are any grounds for bringing the claim. To this extent our rule is different from its UK counterpart CPR r3.4 (2) (a) 1. The claims that will be filtered out of the system by striking out under this rule will be the hopeless and unwinnable cases and those cases where there are no triable issues. Weak cases do not justify the use of the Court s draconian measure of shutting the litigant out of Court. The Court must be astute in exercising this power to bear in mind the intrinsic justice of the case and to give effect to the overriding objective and principles espoused therein of equality, proportionality and economy. 16. In Belize Telemedia v Magistrate 75 WIR 143 Conteh CJ observed: [15] An objective of litigation is the resolution of disputes by the courts through trial and admissible evidence. Rules of court control the process. These provide for pre-trial and the trial itself. The rules therefore provide that where a party advances a groundless claim or defence, or no defence, it would be pointless and 1 See a discussion in Blackstone s Civil Practice paragraph 33.7 on applications to strike in that jurisdiction morphing into applications for summary judgment. That practice is understandable where the rule requires the Court to assess the reasonableness of the grounds of a claim and the two applications to strike and summary judgment may become shades of one another. Page 5 of 14

6 wasteful to put the particular case through such processes, since the outcome is a foregone conclusion. [16] An appropriate response in such a case is to move to strike out the groundless claim or defence at the outset. [17] Part 26 on the powers of the court at case management contains provisions for just such an eventuality. The case management powers conferred upon the court are meant to ensure the orderly and proper disposal of cases. These in my view, are central to the efficient administration of civil justice in consonance with the overriding objective of the Supreme Court Rules to deal with cases justly as provided in r 1.1 and Pt 25 on the objective of case management. [20] It is important to bear in mind always in considering and exercising the power to strike out, the court should have regard to the overriding objective of the rules and its power of case management. It is therefore necessary to focus on the intrinsic justice of the case from both sides: why put the defendant through the travail of full blown trial when at the end, because of some inherent defect in the claim, it is bound to fail, or why should a claimant be cut short without the benefit of trial if he has a viable case? 17. The Court must be careful therefore to only resort to striking out a claim if it is satisfied that such a response is economical, fair and proportionate. Would it be a more economical use of the Court s and parties resources and time? Would it be fair to the Defendant if it is called upon to answer the claim balanced against the right of the Claimant to pursue his claim? Would it be proportionate to the nature of the allegations made and the nature of the matter, in this case essentially one of calling on the prosecutor in the criminal justice system to account for the use of prosecutorial powers. Such a decision calls for a broad judgment after considering the available possibilities and concentrating on the intrinsic justice of the case in light of the overriding objective and against the backdrop that this is a draconian remedy to be used sparingly. Page 6 of 14

7 18. In the circumstances I must therefore be convinced that it is just to stop the proceedings now. That the claim is unwinnable. That to do so is a more economical use of the parties and Court s resources, and it is a proportionate response based on the available evidence. 19. On the issue of abuse of process, the Court must also tread carefully and similarly not easily strike to weak cases. See Blackstone s Civil Practice 2014 para 3312: The court has the power to strike out even a valid claim where there has been an abuse of process, but it is not always correct to do so. Striking out should be the last option. If the abuse can be addressed in some less draconian way, it should be (Reckitt Benckiser (UK) Ltd v Home Pairfum Ltd [2004] EWHC 302 (Pat), [2004] FSR 37). Some striking out applications are brought on the basis that it is an abuse of process to litigate a very weak claim. It is submitted that this is a misuse of the term abuse of process, and that weak claims should be dealt with either as disclosing no reasonable grounds for bringing or defending the claim (see 33.7 to 33.10) or on an application for summary judgment (chapter 34). In so far as there is any validity in striking out on this basis, it was held in Barrett v Universal- Island Records Ltd [2003] EWHC 625 (Ch), The Times, 24 April 2003, that the court needed to have a high degree of confidence that the claim or defence would not succeed before striking it out as an abuse of process. False Imprisonment 20. The tort of false imprisonment is made out where there was no reasonable and probable cause for the arrest. Mozley & Whitely s 10 th edition Law Dictionary defines False imprisonment as: A trespass committed against a person by imprisoning him without lawful cause. Every confinement of a person is an imprisonment, whether it is in a prison, or in stocks, or even by forcibly detaining him in the street. False imprisonment is usually made the subject of a civil action, but is also indictable at the suit of the Crown. Page 7 of 14

8 21. In order to be an actionable false imprisonment, the restriction of the Claimant s liberty must have been unlawful The burden lies on the arresting officer to justify the arrest. There are two traditional defences to the claim for false imprisonment. First that the arrest without a warrant was effected with reasonable cause to suspect that the arrested person committed the arrestable offence. Second that the arrest was effected on the authority of a warrant. 23. In this case upon examining the statement of case and the submissions made to the Magistrate at the inquest, there is no dispute of fact and it is accepted that the Claimant was arrested pursuant to a warrant issued by the Magistrate. In my view whether the warrant exists, or whether the Magistrate signed it or whether his arrest was done in obedience to the warrant are not live issues for determination. It is an accepted factual backdrop to the Claimant s case which is that the police have no reasonable and probable cause to arrest him. His case on false imprisonment is simply that the prosecution knew that there was no legal or factual basis to arrest him. 24. Section 49 of the Police Service Act provides: (1) When an action is brought against a police officer for an act done in obedience to a warrant or order of a Magistrate or Justice, the officer shall not be responsible for any irregularity in the issuing of the warrant or order or for any want of jurisdiction in the Magistrate or Justice issuing it. (2) In any action brought under subsection (1), the Court shall give judgment for the officer if he fulfills the following conditions: (a) he gives the warrant or order in evidence; (b) he proves that the Magistrate or Justice signed the warrant or order; and (c) he proves that the act complained of was done in obedience to the warrant or order. 25. The contention therefore that the Claimant was falsely imprisoned cannot succeed where there is no dispute that he has been arrested by warrant duly issued by the Magistrate. The 2 Weldon v Home Office [1990] 3 WLR 465 Page 8 of 14

9 Honourable Justice M. Dean-Armorer in Jeffrey John v AG CV2009/1536 referred to the judgment of Justice Edoo in Ramkisson v Ramdath and AG HCS1146 of 1976: The question of whether Ramdath had reasonable and probable cause of the arrest of the plaintiff, does not in my opinion arise in a case where a warrant has been issued. This question is relevant where arrest has been made without a warrant. 26. In Russell on Crime (12 th Ed) at p.669 it is stated: Where the warrant is good on the face of it and for an offence within the jurisdiction of the issuing Magistrate, the office executing it is protected irrespective of the truth or falsity of the charge upon which the warrant was granted. 27. In Shergold v Halloway 93 E.R. p.156, the Lord Chief Justice stated: if the justice has a jurisdiction of the subject matter, though he may mistake in his execution of that jurisdiction, yet it shall excuse the constable or tithingman, unless something is discovered in the warrant, which from some express law shews the justice had not a jurisdiction. 28. The Claimant in his submissions in reply contended that the ingredient of the statutory defence in section 49 of the Police Service Act must be proven by the Defendant. That may be so in a traditional sense but the purpose of case management is to determine which are the live issues for determination on the pleadings. The issues now being asserted by the Claimant simply do not arise from his statement of case. In his statement of case the arrest has been pleaded as having been effected as a result of the warrant issued by the Magistrate. Even if this matter proceeds to trial I cannot see how any intelligible cross examination on the circumstances surrounding the issue of the execution of the warrant can be sustained in light of this pleading. 29. Further there is no contention being made on the pleaded case for the Claimant that the warrant is bad or defective or ineffectual in law due to the length of time in which the officers took to execute the warrant. Such an issue is simply not relevant to this case nor is the issue of the malicious procurement of a warrant. Page 9 of 14

10 30. The claim simply based on the particulars set out at paragraph 11 of the statement of case is that the police knew that there was no basis in law and in fact for the arrest. This is an enquiry which is simply unsustainable in law in light of the arrest being executed pursuant to the warrant. Malicious Prosecution 31. As I have determined that there must be a trial of the claim for malicious prosecution I do not propose to delve deeply into the factual issues nor make any pre determination on the facts as presented. 32. The Defendant relies on the fact that the Coroner and not the prosecution weighed the evidence and decided that the charge be laid. The Defendant however has missed the mark. The claim for malicious prosecution is simply based on the contention that the prosecution knew that there was no evidence to support a charge of dangerous driving yet pursued and continued the prosecution. To do so where there were no reasonable grounds of suspicion was, it is alleged, malicious. The claim of malicious prosecution raises triable issues concerning the honest belief of the prosecutor in the guilt of the Claimant. Such an honest belief must be adjudged to have existed both subjectively and objectively. It would be wrong to give the benefit of the doubt to the police or prosecution at this stage and to assume without seeing their defence or their evidence as to what facts dominated their mind in pursuing the prosecution and assessing such evidence of their state of mind and honest belief. I agree that the discontinuance of a prosecution is no indicator that the prosecutor did not have an honest belief in the guilt of the accused. But similarly the Court must be provided with such evidence to satisfy it that the prosecutor acted lawfully in pursuing the prosecution. 33. The Claimant s contention was there was no evidence to convict on the criminal charge of causing death by dangerous driving. He claims the evidence shows that he lost control and was driving at an average speed and exercised reasonable care. So convinced was he that there was no case to answer a no case submission was made. Page 10 of 14

11 34. The absence of reasonable and probable cause is a question to be determined by the judge upon an assessment of the evidence. The burden of proving it lies on the plaintiff. Halsbury s Laws Vol.45(2) states: Reasonable and probable cause for a prosecution has been said to be an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed. 35. The following passage from Halsbury s Laws is instructive in this regard: The presence of reasonable and probable cause for a prosecution does not depend upon the actual existence, but upon a reasonable belief held in good faith in the existence of such facts as would justify a prosecution. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action; his duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. The belief in the existence of such facts as would justify a prosecution, or the belief in the accused s guilt, may arise out of the recollection of the prosecutor, if he has always found his memory trustworthy, or out of information furnished to him by others and accepted by him as true. 36. In my view it is still open to the Claimant in this case to make a claim for malicious prosecution. It is not an unwinnable case. It is not wholly without merit. There is some ground for making this claim which is based on the fact that the prosecution had no evidence or legal or factual basis for the prosecution. I cannot assume on the basis of a submission made by Counsel for the Defendant that it is obvious that the prosecutor had in mind the speed or the way in which the Claimant handled the vehicle as dominating their mind in pursuing the prosecution. There is no evidence that this is the case. 37. Examples of cases of dangerous driving were referred to by the Defendant from the Blackstone s Criminal Practice 2013 para C3.12. There appears an instructive passage at para C3.12 which deserves repeating: Page 11 of 14

12 The CPS Policy for prosecuting cases of bad driving gives the following examples of driving that may support an allegation of dangerous driving: racing or competitive driving; speed which is highly inappropriate for the prevailing road or traffic conditions; aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving much too close to the vehicle in front; disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate; disregard of warnings from fellow passengers; overtaking that could not have been carried out safely; driving a vehicle with a load that presents a danger to other road users; where the driver is suffering from impaired ability such as having an arm or leg in plaster, or impaired eyesight; driving when too tired to stay awake; driving a vehicle knowing it has a dangerous defect; using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably and dangerously distracted by that use; reading a newspaper/ map; talking to and looking at a passenger where the driver was avoidably and dangerously distracted by that; selecting and lighting a cigarette, or similar, in circumstances where the driver was avoidably and dangerously distracted by that. In A-G s Ref (No. 17 of 2009) [2010] RTR1, the Court of Appeal confirmed that there is never any excuse for texting or using a hand-held mobile phone while driving. In addition, by reference to the guidance in Cooksley [2003] 3 All ER 40, further factors might be callous behavior at the time, e.g., throwing a victim off the vehicle or failing to stop, or causing death (and presumably serious injury) in the course of an escape or an attempt to avoid detection. These are indicative only and not conclusive as to the type of behavior which might constitute dangerous driving. 38. It is accepted that speed alone is not sufficient but it must be assessed against the prevailing conditions. This is a matter which the Defendant must answer. The extent to which the police and prosecution believed that the Claimant was guilty upon assessing all the circumstances of this case and the extent to which they took into account the loss of control of the vehicle as a result of driving into a pothole. It would be disproportionate at this stage Page 12 of 14

13 to strike out this claim as disclosing no ground for a claim of malicious prosecution on the assumption that this was in the mind of the prosecutor. 39. Malice I agree is perhaps a challenge for the Claimant however at this stage it is sufficient to say that malice can be inferred from lack of reasonable and probable cause. In Glinski v McIver [1962] AC 726, 766, where malicious prosecution was alleged, Lord Devlin noted, as a matter of agreement, that malice covered any motive other than a desire to bring a criminal to justice. In the context of the present case that could be reformulated as any motive other than a desire to prosecute the Claimant. 40. I am also satisfied that there is no abuse of process. The prosecution elected not to lead any evidence in the Magistrates Court after a Coroner decided that there was sufficient ground for charging the Claimant with the offence. The Claimant does not seek to challenge the Coroner s decision to charge him nor the decision to issue a warrant for his arrest. There is no complaint against the Coroner about her decision to issue a warrant. There is no complaint of unlawful exercise of judicial power. No issue of judicial review arises. 41. What the Claimant is attempting to do in these proceedings is to demonstrate that the police and prosecution abused the criminal prosecution by pursuing it without reasonable and probable cause and did so maliciously. The simple case is that they knew or ought to have known that there was no legal of factual basis to continue the prosecution of the Claimant. 42. There is however an important contention by the Defendant that to permit this claim to continue would open the floodgates for malicious prosecution cases whereby any time that a DPP enters a nolle prosequi or that it elects not to call evidence it will be exposed to a claim for damages for malicious prosecution. That is not so. The law as it stands already requires that the requisite elements of proving malicious prosecution must exist to ground such a claim. The fact that proceedings are determined in an accused s favour, which may happen on a number of occasions, does not on its face mean that those prosecutions were instituted or continued without reasonable or probable cause or made maliciously. To succeed he must prove that the criminal justice system was abused, that he had no factual or legal basis to lay the charge and knew it to be so. That he had no honest belief and acted maliciously. Page 13 of 14

14 43. Finally I note that the Defendant contends, as one of the grounds in its application that the Claimant has failed to set out in the Statement of Case the name or other particulars of any servant or agent of the State who maliciously instituted or continued criminal proceedings against him. This is not a matter to give rise to the Court s discretionary power to strike out but rather an application for further information. See Real Time Systems Limited v Renraw Investments Ltd C.A. Civ 238/2011. Conclusion 44. The Claim for false imprisonment is struck out. The claim for malicious prosecution will be further managed by the Defendant first filing and serving its Defence on or before 30 th July 2014 the Claimant to file a reply if any on or before 18 th August The first CMC will be held on 25 th September 2014 at 9:30a.m. in court room POS22. Vasheist Kokaram Judge Page 14 of 14