3PLR – MCILKENNY V. CHIEF CONSTABLE OF WEST MIDLANDS POLICE FORCE AND ANOTHER AND RELATED APPEALS MIDLANDS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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MCILKENNY
V.
CHIEF CONSTABLE OF WEST MIDLANDS POLICE FORCE AND ANOTHER AND RELATED APPEALS MIDLANDS
COURT OF APPEAL
CIVIL DIVISION
12, 13, 14, 15, 16, 22, 26, 27, 28, 29, 30 November 1979; 17 January 1980
3PLR/1980/24 (CA-E)
OTHER CITATIONS
(1980) 2 All E.R. 227
BEFORE THEIR LORDSHIPS
LORD DENNING MR,
GOFF LJ AND SIR GEORGE BAKER
REPRESENTATION
Solicitors: Barlow, Lyde & Gilbert (for the Chief Constable of the West Midland Police); Brian Hill, Preston (for the Chief Constable of the Lancashire Police); Treasury Solicitor; Saunders & Co (for the plaintiffs Power, Callaghan and Hill); Barrington Black & Co, Leeds (for the plaintiff Walker); Geffens, Walsall (for the plaintiffs Hunter and McIlkenny).
Sumra Green Barrister.
MAIN ISSUES
PRACTICE AND PROCEDURE – ACTION:- Civil Procedure – Estoppel – Issue estoppel – Criminal proceedings followed by civil proceedings – Accused alleging in criminal proceedings that he was assaulted by police officers to procure confession whilst in custody – No such assault proved and accused convicted – Civil proceedings by accused against police claiming damages for assault by police officers – Whether issue estopped – Whether civil action abuse of process of court – When pleas of issue estoppel can be dislodged
CRIMINAL LAW AND PROCEDURE:- Criminal Procedure – allegation of Police brutality of person being prosecuted of crime – Where not proved – Whether can be reopened in civil proceedings – Whether abuse of court processes
Cases referred to in judgments
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Eagle, Star and British Dominoions Insurance Co v Heller (1927) 140 SE 314.
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Phosphate Sewage Co v Molleson (1879) 4 App Cas 801, HL, 21 Digest (Repl) 286, 558.
R v Beresford (1971) 56 Cr App R 143, CA.
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Cases also cited
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Barclays Bank Ltd v Cole [1966] 3 All ER 948,[1967] 2 QB 738, CA.
Barrs v Jackson (1842) 1 Y & C Ch Cas 585, 62 ER 1028; on appeal (1845) 1 Ph 582, LC.
Basébé v Matthews (1867) LR 2 Cp 684, 16 LT 417.
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Connelly v Director of Public Prosecutions [1964] 2 All ER 401,[1964] AC 1254, HL.
Coomber v Justices of Berkshire (1883) 9 App Cas 61, 53 LJQB 239, HL.
Czarnikow (C) Ltd v Koufos, The Heron II [1967] 3 All ER 686,[1969] 1 AC 350, HL.
Davis v Johnson [1978] 1 All ER 1132,[1979] AC 264 HL; affg [1978] 1 All ER 814,[1979] AC 264, CA.
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Hinds v Sparks [1964] Crim LR 717.
James v Landon (1585) Cro Eliz 36, 78 ER 302.
Justice v Gosling (1852) 12 CB 39, 21 LJCP 94.
Leyman v Latunei (1878) 3 Ex D 352,[1874–80] All ER Rep 1264, CA.
Marginson v Blackburn Borough Council [1939] 1 All ER 273,[1939] 2 KB 426, CA.
Maybee v Avery (1820) 18 Johns (NY) 352.
Metroplitan Bank Ltd v Pooley (1885) 10 App Cas 210,[1881–5] All ER Rep 949, HL.
Morrison Rose & Partners (a firm) v Hillman [1961] 2 All ER 891,[1961] 2 QB 266, CA.
New Brunswick Railway Co v British & French Trust Corpn Ltd [1938] 4 All ER 747,[1939] AC 1, HL.
Nouvion v Freeman (1889) 15 App Cas 1, 59 LJ Ch 337, HL.
O’Connor v Isaacs [1950] 2 All ER 417,[1956] 2 QB 288, CA; affg [1956] 1 All ER 513,[1956] 2 QB 288.
Ormond Investment Co v Betts [1928] AC 143,[1928] All ER Rep 709, HL.
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd, The Wagon Mound (No 2)[1966] 2 All ER 709,[1967] 1 AC 617, PC.
R v Hearn [1970] Crim LR 175, CA.
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R v Hutchings (1881) 6 QBD 300, 44 LT 364, CA.
R v Sang [1979] 2 All ER 1222,[1979] 3 WLR 263, HL.
Rondel v Worsley [1966] 1 All ER 467,[1967] 1 QB 443; affd [1966] 3 All ER 657,[1967] 1 QB 443, CA; affd [1967] 3 All ER 993,[1969] 1 AC 191, HL.
Selby v Director of Public Prosecutions (1971) 56 Cr App R 72, HL.
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Wong Kam-ming v The Queen [1979] 1 All ER 939,[1980] AC 247, PC.
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581,[1975] 2 WLR 690, PC.
Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293,[1944] KB 718, CA; affd [1946] 1 All ER 98,[1946] AC 163, HL.
HISTORY AND SUMMARY OF FACTS OF THE CASE
The police arrested the plaintiffs on 21 November 1974 following the death of 21 people in bomb explosions in two Birmingham public houses. On 23 November the plaintiffs confessed to the bombings and were charged with murder. On 25 November they were brought before a magistrate who ordered them to be remanded in custody. They were admitted to prison and three hours later were medically examined by Dr H, the prison doctor. When the plaintiffs were again brought before a magistrate, on 28 November, their faces were badly bruised and they complained that they had been beaten up by the police. A Home Office inquiry was held into their allegations. At the murder trial the plaintiffs repeated their allegations with a view to having their confessions of 23 November, on which the Crown was heavily reliant, declared inadmissible. At a lengthy trial within a trial the judge heard evidence from the plaintiffs, the police officers concerned (who denied that there had been any threats or violence), and Dr H (who said that the plaintiffs’ injuries had been inflicted before they were admitted to prison). However no prison officers were called despite the fact that statements taken from prison officers at the Home Office inquiry had been made available to the plaintiffs’ counsel. The judge disbelieved Dr H, accepted the evidence of the police officers, and ruled that the confessions were admissible. The plaintiffs were found guilty. Subsequently the prison officers were charged with assaulting the plaintiffs but were acquitted. The plaintiffs then brought an action under s 48 of the Police Act 1964 against the chief constable in charge of the police officers claiming damages for assault by the police. The chief constable applied to have the action struck out on the ground that it raised an issue identical to that which had been finally determined at the plaintiffs’ murder trial (ie by the trial within a trial). At the hearing of the chief constable’s application the plaintiffs adduced new evidence consisting of (i) statements by the prison officers, and (ii) expert evidence from a forensic specialist, Dr P, who considered that at least some of the plaintiffs’ injuries had been inflicted before they left police custody. The judge held that the new evidence prevented him from striking out the plaintiffs’ action, because it was reasonably conceivable that another tribunal acting judicially might now accept at least part of the plaintiffs’ case. The chief constable appealed.
Held – The appeal would be allowed and the action struck out for the following reasons
(1) per Lord Denning MR and Sir George Baker, Goff LJ dissenting). The plaintiffs were estopped from raising in their action against the chief constable the issue whether they had been assaulted by his police officers because (a) that issue had already been finally determined against them by a court of competent jurisdiction in the criminal proceedings to which they were parties, and in those proceedings they had had a full and fair opportunity of presenting their case, and (b) in all the circumstances it would not be just to allow them to reopen the issue (see p 235 j to p 236 b, p 237 j to p 238 a and j, p 239 g h, p 240 e, p 256 c to f, p 257 e f and p 258 a b, post); Duchess of Kingston’s Case [1775–1802] All ER Rep 623 and dicta of Lord Reid, Lord Upjohn and Lord Wilberforce in Carl-Zeiss Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER at 550, 573 and 586, applied; Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35 distinguished; Hill v Clifford [1907] 2 Ch 236, Harvey v R [1901] AC 601, Eagle Star and British Dominions Assurance Co v Heller (1927) 140 SE 314, Mills v Cooper [1967] 2 All ER 100 and Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 considered.
(2) In any event it would be an abuse of process to allow the plaintiffs to litigate again the identical issue to that which had already been decided against them in the criminal proceedings, and they would not be permitted to call the further evidence on which they sought to rely because (a) their counsel had had the prison officers’ statements at the time of the trial and had chosen not to call them,(ii) the evidence of a specialist in forensic medicine, such as Dr P, could with reasonable diligence have been obtained at the time of the trial, and (iii) there were no grounds for thinking that the evidence of either the prison officers or Dr P would materially change the aspect of the case (see p 240 b c, p 245 h j, p 249 c to g and j, p 250 b c, p 251 g to j, p 258 g h and p 259 c to e, post); Phosphate Sewage Co v Molleson (1879) 4 App Cas 801, dicta of Lord Loreburn LC in Brown v Dean [1908–10] All ER Rep at 662, of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas at 668, and of A L Smith LJ in Stephenson v Garnett [1898] 1 QB at 680, applied; Flower v Lloyd (1879) 10 Ch D 327, Birch v Birch [1902] P 130 and Boswell v Coaks (No 2)(1894) 6 R 167 considered.
Notes
For issue estoppel generally, see 11 Halsbury’s Laws (4th Edn) para 245, 16 ibid, paras 1530–1534.
For striking out proceedings for abuse of process, see 30 Halsbury’s Laws (3rd Edn) 407–409, paras 766–768; and for cases on the subject, see 51 Digest (Repl) 741–743, 3278–3300.
For the Police Act 1964, s 48, see 25 Halsbury’s Statutes (3rd Edn) 363.
Interlocutory appeals
By a writ issued on 17 November 1977 the plaintiffs William Power, Hugh Daniel Callaghan and Patrick Joseph Hill, brought an action against (i) the Chief Constable of the Lancashire Police Force,(ii) the Chief Constable of the West Midlands Police Force and (iii) the Home Office. The plaintiff Power claimed the following relief: (i) damages for injury and suffering caused by the assault and battery of the Chief Constable of Lancashire, his servants or agents at Morecambe police station between 21 and 23 November 1974;(ii) damages for assault and battery caused by the Chief Constable for the West Midlands, his servants or agents at Morecambe police station between 21 and 23 November 1974, at Queen’s Road police station, Aston, at the central lock-up, Steel House Lane, Birmingham, and at Winson Green prison, Birmingham, between 21 and 26 November 1974; and (iii) damages for assault and battery caused by the Home Office, their servants and agents and/or by their negligence and/or assault and battery of prisoners under the control of the Home Office between 24 and 26 November 1974 at Winson Green Prison.
The plaintiffs Callaghan and Hill claimed similar relief. By a writ issued on the same day the plaintiff Robert Gerard Hunter also brought an action against the Chief Constable of the Lancashire Police Force, the Chief Constable of the West Midlands Police Force and the Home Office, and about the same time the plaintiff John Francis Walker and the plaintiff Noel Richard McIlkenny each brought an action against the Chief Constable of the West Midlands Police Force and the Home Office. They all claimed similar relief to that claimed by the plaintiff Power. In each case the Home Office admitted that the plaintiff had been assaulted and injured whilst he was in its prison officers’ custody. The two chief constables each applied by summons for an order striking out the actions against them. On 22 November 1977 Cantley J dismissed the applications. The Chief Constable for the West Midlands appealed against his decision. On the third day of the hearing of his appeal, the Court of Appeal gave the Chief Constable of the Lancashire Police Force leave to add himself as a party to the appeal. The facts are set out in the judgment of Lord Denning MR.
Michael Turner QC and Patrick Twigg for the Chief Constable of the West Midlands Police.
Partick Twigg for the Chief Constable of the Lancashire Police.
Hugh Carlisle QC and John Laws for the Home Office.
David Turner-Samuels QC and Rock Tansey for the plaintiffs Power, Callaghan and Hill.
Robin Allen for the plaintiff Walker.
Stephen Sedley for the plaintiff Hunter.
Adrian Taylor for the plaintiff McIlkenny.
Cur adv vult
17 January 1980. The following judgments were delivered.
LORD DENNING MR. This is the case of the Birmingham bombers.
Thursday, 21 November 1974
Eight minutes past eight in the evening. The telephone rang in a newspaper office in Birmingham. A young man picked it up. It was from a call-box. ‘Is that “The Birmingham Post”?’ asked a voice with an Irish accent. ‘Yes’. The voice went on: ‘There is a bomb planted at the Rotunda. There is another in New Street near the Tax Office.’ That was all. At once the young man dialled the police. He repeated the message to them. The police were quick as lightning. Their cars rushed to those addresses—screeching their way. But they were too late. The bombs went off before the police could get there. Each in a crowded public house. One in The Mulberry Bush. The other in The Tavern in the Town. Both were devastated. Dead and dying lay everywhere. Twenty-one people were killed and 161 injured.
Outside the police were going into action swiftly. To catch the terrorists. They sent out squads to every exit from Birmingham, by road, rail or air. They went to the railway station at New Street. It was quite close to the bombed premises. They found that a train had left New Street for Belfast. It had left at 7.55 pm, about 20 minutes before the bombs went off. It had many Irish passengers on it. It was due at Heysham, 200 miles away, a little before 11 o’clock at night. The passengers would then take the boat to Belfast. The police then did a fine piece of detective work. As a result they had reason to suspect five of the passengers on that train. They telephoned to the Lancashire police. They met the train. Four of the men came through the barrier at Heysham. They were arrested by the Lancashire police. The fifth was arrested on the boat. They were taken the four miles to the police station at Morecambe. The men told the Lancashire police that they were on their way to attend the funeral in Belfast of James McDade. He was a prominent member of the Irish Republican Army. He had made a mistake while setting a bomb in Coventry. It had exploded too soon and killed him. He was to be buried in Belfast.
Friday, 22 November 1974
During the night the Birmingham police went post haste to Morecambe, arriving early the next day. It was a Friday. They interviewed the five men that day. In the evening, with an escort, they drove the men back by car the 200 miles to Birmingham. The men were then detained at the Queen’s Road police station. Later the same night the police arrested a sixth man, called Callaghan, at his home in Birmingham. They took him also to the Queen’s Road police station.
Saturday, 23 November 1974
The six men were further interviewed. They all made statements. Some in writing. Some by word of mouth. In them they admitted their parts in placing the bombs. Now here is the crucial point in the whole case: apart from those confessions, the police had no sufficient evidence on which to charge the men, let alone convict them. There was nothing but suspicion of the vaguest kind quite unsupported by any concrete evidence. So the statements were vital. Were they obtained voluntarily or not? That was the decisive point at the trial.
Sunday, 24 November 1974
The six men were photographed at the Queen’s Road police station. These photographs come much into the rest of the story. They were Polaroid photographs in black and white. They were not very clear but the photograph of one of the men, called Walker, showed a dark look under his right eye which might be a bruise. Later that day the six men were taken to the lock-up at Steel House Lane in Birmingham.
Monday, 25 November 1974
The six men were brought before the magistrate. Two young solicitors were there as ‘duty solicitors’ that morning. They undertook the task of defending the men. They saw them in the cells. Some of the men complained that they had been beaten up by the police. They pointed to scratches on their chests to prove it. But those scratches might have been inflicted by the men themselves. The men did not complain of any blows to their faces. Walker explained his black eye by saying that he had fallen and hurt himself. He did not suggest that it had been done by the police. The men were taken before the magistrate. The courtroom was full. No one noticed any marks on their faces except Walker’s black eye.
Formal evidence was taken. The magistrate remanded the men in custody. They were taken to Winson Green prison. They got there at about 11.15 am. They were received by the prison officers. At about 2.00 pm they were examined by the prison doctor, Dr Harwood; and retained in custody.
Three days later—Thursday, 28 November 1974
The six men were again brought before the magistrate. At their appearance there were gasps of astonishment. They had been beaten up. Their faces were black and blue. The journalists reported it. The papers were full of it. The men were again remanded in custody. But there had to be an inquiry.
Friday, 29 November 1974
The governor of the prison had his own inquiry. His officers made written statements in which they said that the six men had bruises when they were first brought into the prison. Their statements, if believed, would go to show that the police had beaten them up before they were received into the prison. It may be that the prison officers also beat them up, but so had the police.
8 December 1974–13 May 1975
The Home Office were so concerned that they asked Mr Owen, a senior police officer from Lincolnshire, to carry out an inquiry. He did so. It took him nearly five months. He saw many witnesses and took many statements. These related only to what happened after the men were received at the prison. Not beforehand because that was sub judice. Mr Owen reported on 13 May 1975. His report has not been disclosed.
9 June-15 August 1975
The six men were tried before Bridge J and a jury at the Castle at Lancaster. It took over ten weeks. There was evidence of the movements of the men on 21 November and of traces of explosives found on two or three of them; but the evidence was quite insufficient to warrant a conviction unless the men’s statements were admitted in evidence. The judge so told the jury. He said that, apart from their statements, he would not have left this case for their consideration: because the other evidence, although ‘raising suspicion … still [fell] a long way short of anything that anyone could possibly regard as proof’.
Trial within a trial
The important point was: were the statements admissible in evidence? All the counsel for the six men objected to them. They said that they had been induced by violence and threats made by the police to them. To decide on their admissibility, the judge held a ‘trial within a trial’. He sent the jury away. He took much evidence from the police officers and the accused men. It took him eight days, and he gave a reasoned decision covering 15 pages. The judge said:
‘Certainly, according to the police evidence, no sort of violence was used and no sort of threats were addressed to any of the prisoners. On the other hand, the defendants all give evidence, with the exception perhaps of Callaghan, of gross personal violence being used to them … All of them, including Callaghan, complain of the most outrageous threats as to what would happen to them or, in some cases, their families … all allege that the whole of the police evidence … was substantially fabricated evidence …. it is an inescapable conclusion that there is gross perjury being committed on one side or the other.’
In the course of the ‘trial within a trial’ one fact emerged quite clearly. These six men were badly bruised when they appeared in court on Thursday, 28 November 1974. If the police were to be believed, these injuries were not occasioned whilst they were in the police custody (that is, up to their appearance in court on Monday, 25 November) but must have been caused whilst they were in the custody of the prison officers on and after 25 November 1974. If the six men were to be believed, it was not the prison officers but the police who attacked them and they did so before 25 November 1974.
In support of the six men, their counsel called the prison doctor, Dr Harwood. He said that he observed many bruises on the men but that not one of them could have been caused after the men had arrived in prison. The judge disbelieved him entirely. He described him as a ‘most unsatisfactory and evasive witness’. Dr Harwood has since died.
In support of the six men, it would have been open to counsel, at the ‘trial within a trial’, to call some of the prison officers; but he did not do so. He knew all about them. He told the judge: ‘I have been shown all the statements that were taken by Mr Owen … and I have spent some part of the last week or so reading those.’ Yet he did not call a single one of the prison officers. At the end of the ‘trial within a trial’, the judge accepted the evidence of the police witnesses. He said: ‘I am satisfied that those witnesses were giving honest and accurate evidence. I am satisfied that the confessions were voluntary and I rule them to be admissible in each case.’
The rest of the trial
The confessions were, therefore, given in evidence before the jury. They were challenged by the accused. All the allegations of violence and threats were gone through again. The six men alleging them. The police denying them. The judge in his summing-up told them: ‘Beyond any shadow of doubt perjury of the grossest kind was being committed on one side or the other.’
The jury convicted each of the six men on the indictment of 21 counts of murder. If the jury took heed of the judge’s summing-up, they must have accepted the evidence of the police and rejected that of the six men. The judge sentenced each of them to imprisonment for life.
The trial of the prison officers
If the evidence of the police officers was accepted, it meant that the prison officers must have ‘beaten up’ the six men after they arrived at Winson Green prison. That was so serious that on 30 December 1975 the Director of Public Prosecutions charged 14 prison officers with assault on the six men. They were tried before Swanwick J and a jury for five weeks from 10 June to 15 July 1976. At the trial the prison officers called a new medical witness, Dr David Paul. He was a specialist in forensic medicine and lectured on it at Guy’s and Bart’s. He had examined the photographs of these six men which had been taken on Sunday, 24 November 1974, whilst they were still in police custody at Queen’s Road police station. He made a report in which he came to the conclusion that—
‘Careful examination of the photographs and the medical evidence reveals that all the injured men sustained injuries around the 24th-27th November 1974 … It is obvious from the photographs that some injuries were sustained prior to the time of the photographs of 24th November, and some between 24th and 27th November.’
The evidence of Dr Paul was adverse to the police in that he concluded that the six men had been injured whilst in police custody before the photographs were taken, but that they had also been injured whilst in the custody of the prison officers after the photographs were taken.
The prison officers made statements from the dock. Each said, ‘It wasn’t me’. All were acquitted.
The six men bring actions against the police
One might have thought that the litigation might have ended there. But no. The six men, whilst in prison, got legal aid so as to enable them to bring actions against the police. They did so because they had got new evidence. They had got the evidence which Dr Paul had given at the trial of the prison officers. They claimed that it showed that they had been ‘beaten up’ by the police. They also got statements from three prison officers. These three said that the six men were bruised and injured when they arrived at the prison and that it must have been done by the police earlier.
Armed with this new evidence, on 14 November 1977 these four actions were commenced. Three of the men combined in one action. Each of the other three started an action on his own. They sued the Lancashire police, the West Midlands police and the Home Office. They served statements of claim in which they repeated all their allegations against the police officers of violence and threats. They also alleged assaults by the prison officers after they were taken to the prison. The Home Office admit that the men were assaulted after they got to the prison and sustained some injury. The only issue there is, what damages? But the police take a different line. They ask that the actions should be struck out as against them. They say that the issue, of violence and threats, was decided in favour of the police at the trial before Bridge J, and that it should not be reopened now.
In seeking to strike out these actions, the police rely first on the law as to issue estoppel. They say that the six men are estopped from raising again an issue which was decided by Bridge J. Second, if that be wrong, the police say that these actions are an abuse of the process of the court. Now of these two propositions, I feel that priority should be given to issue estoppel. For this reason: it is admitted that the six men, if they are to be believed, have a reasonable cause of action for damages against the police officers: just as they have against the prison officers. On the ground that they, the six men, say that they were subjected to serious assaults, violence and threats, whilst in custody. The action itself is not therefore an abuse of the process. If it is to be called an abuse, it is because of the previous decision against them in the ‘trial within a trial’. If they are to be stopped, it must be by way of an estoppel of some kind or other.
For the word ‘estoppel’ only means stopped. You will find it explained by Coke in his Commentaries on Littleton (at 352a). It was brought over by the Normans. They used the old French ‘estoupail’. That meant a bung or cork by which you stopped something from coming out. It was in common use in our courts when they carried on all their proceedings in Norman-French. Littleton writes in the law-French of his day (fifteenth century) using the words ‘pur ceo que le baron est estoppe a dire ceo’, meaning simply that the husband is stopped from saying something.
From that simple origin there has been built up over the centuries in our law a big house with many rooms. It is the house called Estoppel. In Coke’s time it was a small house with only three rooms, namely, estoppel by matter of record, by matter in writing, and by matter ‘in pais’. But by our time we have so many rooms that we are apt to get confused between them. Estoppel per rem judicatam, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These several rooms have this much in common: they are all under one roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. If you go into one room, you will find a notice saying ‘Estoppel is only a rule of evidence’. If you go into another room you will find a different notice, ‘Estoppel can give rise to a cause of action’. Each room has its own separate notices. It is a mistake to suppose that what you find in one room, you will also find in the others.
Privity and mutuality
Today we go into a room described as estoppel per rem judicatam, in which there is an alcove which has sometimes passed unnoticed. It is called issue estoppel. In this room there are several chairs to sit on. One is called the doctrine of privity. The other is the doctrine of mutuality. The two look all right but they are both a bit rickety.
The doctrine of privity says that the only persons who can take advantage of the estoppel or be bound by it are the two parties to the previous proceedings themselves or their privies. No third person can take advantage of it or be bound by it; because he was not party to the previous proceedings. Those proceedings, so far as the third person is concerned, were res inter alios acta.
The doctrine of mutuality says that, in order that there should be an estoppel, it must be such that both of the two parties and their privies must be bound by the estoppel, whichever way it goes. Win or lose, each party must be bound. It is said that, in any contest, that is the only fair thing.
Now although those two chairs look all right to start with, you will soon find that they are quite unsafe. Jeremy Bentham as long ago as 1827 told people not to rely on them. In his Rationale of Judicial Evidence (1843, vol 7, p 171) he said: ‘This rule of mutuality is destitute of even that semblance of reason, which there is for the rule concerning res inter alios acta.’ And ten years later in 1837 John William Smith in the first edition of his Leading Cases gave a warning more politely: ‘Yet this rule that an estoppel must be mutual, otherwise neither party is bound, must be taken with some limitation.’ Then in 1856 Martin B in Petrie v Nuttall (1856) 11 Exch 569 castigated the consequences of it as ‘absurd’ and said it should be reconsidered by a court of error.
Our friends in the United States have been just as scathing as Jeremy Bentham. They have rejected the doctrine of mutuality altogether, and they have limited the doctrine of privity. They take a distinction between a decision in favour of a man and a decision against him. If a decision has been given against a man on the identical issue arising in previous proceedings and he had full and fair opportunity of defending himself in it, then he is estopped from contesting it again in subsequent proceedings. Not only is he estopped but so are those in privity with him. But there is no corresponding estoppel on the person in whose favour it operates.
This is no new departure. It was foreseen as long ago as 1776 when the judges of England advised the House of Lords in Duchess of Kingston’s Case 2 Smith’s LC (13th Edn) 644 at 647–648,[1775–1802] All ER Rep 623 at 627:
‘But in all these cases, the parties to the suits, or at least the parties against whom the evidence was received, were parties to the sentence, and had acquiesced under it; or claimed under those who were parties and had acquiesced.’
Eagle, Star and British Dominions Insurance Co v Heller
The position in the United States is well illustrated by Eagle, Star and British Dominions Insurance Co v Heller (1927) 140 SE 314. A shopkeeper insured his stock of goods against loss or damage by fire. Later on the place went up in flames. The police suspected him of setting it on fire himself so as to get the insurance moneys. He said it was a case of mistaken identity. It was not he who started the fire but someone else. The police prosecuted him for arson. The burden was on them to prove it beyond reasonable doubt. They did so to the satisfaction of the jury. He was convicted and sentenced. But he was a man who had always protested his innocence. So afterwards he brought a civil action against the insurance company for the policy moneys payable for loss by fire. The insurance company defended on the ground that he set fire to the place himself. They wanted to give the conviction in evidence, but the judge ruled it to be inadmissible. So the insurance company had to rely on the self-same evidence as had been given by the police in the criminal trial; likewise the shopkeeper had the same evidence on his side. Now the interesting thing is that the jury in the civil case found in favour of the shopkeeper. The insurance company appealed to the Supreme Court of Appeals. This is what was said by the Supreme Court of Appeals of Virginia in 1927(at 323):
‘To permit a recovery under a policy of fire insurance by one who has been convicted of burning the property insured, would be to disregard the contract, be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticisms of legal procedure, and to justify the gibe that the administration of the law is the only remaining legalized lottery. Our conclusion, then, under the facts of this case, is that the court erred in refusing to admit evidence of the conviction; that, when admitted, the precise finding of fact, that the accused was criminally responsible for the fire, unquestionably incendiary, which destroyed his goods, is conclusive upon the plaintiff, Heller; that this judgment of a court of competent jurisdiction was a determination of that particular and decisive fact as against him; that this judgment cannot be attacked except upon the ground of fraud, perjury, collusion, or some other such ground of invalidity; and that when so admitted in evidence there could have been but one proper verdict, and that a verdict for the defendant. We shall, therefore, reverse the judgment in favor of the plaintiff and enter judgment here in favor of the defendant.’ (My italics.)
Notice that in that case there was no privity between the police and the insurance company. Yet the insurance company were given the benefit of the estoppel against the shopkeeper.
Hollington v F Hewthorn & Co Ltd
That case, Eagle, Star and British Dominions Insurance Co v Heller, would have been decided differently in England before 1968. At that time English law had received a setback by reason of Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35,[1943] KB 587. In that case it was held that a previous conviction was not even admissible in evidence; and that meant it would not be available as an estoppel: if you could not get it in evidence, it could not be used at all.
Now that case has been examined with great skill and much learning in the New Zealand Court of Appeal in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961, and I gladly adopt all their reasoning. Beyond doubt, Hollington v Hewthorn was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation. But it is unnecessary. It has been replaced by s 11 of the Civil Evidence Act 1968; and it is to that section that we must turn for the modern law. Before I do so, however, I would draw attention to another chair in the room of estoppel per rem judicatam. It is called the doctrine of exceptions. It is a good deal safer than the first two chairs.
Exceptions
It has long been recognised that estoppel per rem judicatam or issue estoppel is not an absolute bar to the matter in dispute being tried again. The party concerned can avoid the effect of the previous decision if he can prove the same to have been obtained by fraud or collusion. That was the unanimous opinion of the judges in Duchess of Kingston’s Case (1776) 2 Smith’s LC (13th Edn) 644 at 652,[1775–1802] All ER Rep 623 at 630. To which we can add now that the party concerned can avoid the effect of the previous decision if he can show that a new fact has come to light (which he could not have ascertained before by reasonable diligence) which entirely changes the aspect of the case: see Phosphate Sewage Co v Molleson (1879) 4 App Cas 801 at 814 by Earl Cairns LC. This is a much stricter test than we require when we admit fresh evidence on an appeal. On an appeal (which is a re-hearing) we have said that the fresh evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive (see Ladd v Marshall [1954] 3 All ER 754,[1954] 1 WLR 1489 and Skone v Skone [1971] 2 All ER 582,[1971] 1 WLR 812). But in order to avoid the effect of an estoppel (when there is no re-hearing) the fresh evidence must, I think, be decisive. It must be such as to show that the previous decision was wrong. Oath against oath will not do. An ‘important influence on the result’ will not do. It must be conclusive. In this context the words of Lord Loreburn LC (with the support of the majority of the House of Lords) in Brown v Dean [1910] AC 373 at 374 supply the right test. Referring to the extreme value of the old doctrine interest reipublicae ut sit finis litium, he said:
‘When a litigant has obtained a judgment in a Court of justice, whether it be a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive.’
Section 11 of the Civil Evidence Act 1968
So stated, the law fits in very well with the new statutory provision in s 11 of the Civil Evidence Act 1968. Under it, a previous conviction is admissible in a subsequent civil action for the purpose of proving that the man committed the offence; and further ‘he shall be taken to have committed that offence unless the contrary is proved.’
How is a convicted man to prove ‘the contrary’? That is, how is he to prove that he did not commit the offence? How is he to prove that he was innocent? Only, I suggest, by proving that the conviction was obtained by fraud or collusion, or by adducing fresh evidence. If the fresh evidence is inconclusive, he does not prove his innocence. It must be decisive, it must be conclusive, before he can be declared innocent.
Now suppose that the case of arson in America had occurred in England at any time after 1968. It is quite plain that there would be an issue estoppel preventing the shopkeeper from claiming the insurance moneys unless he could prove that his previous conviction was wrong. His civil action would be struck out unless he could give particulars of fresh evidence showing conclusively that he was innocent. That he would not be able to do.
Likewise it seems to me that a previous decision in a civil case—against a man—operates as an estoppel preventing him from challenging it in subsequent proceedings unless he can show that it was obtained by fraud or collusion; or he can adduce fresh evidence (which he could not have obtained by reasonable diligence before) to show conclusively that the previous decision was wrong.
Section 13 of the 1968 Act is different. In a defamation action, a previous conviction is conclusive without any exception being allowed for fraud or collusion or fresh evidence.
To illustrate my view of the present law, I would take this example. Suppose there is a road accident in which a lorry driver runs down a group of people on the pavement waiting for a bus. One of the injured persons sues the lorry driver for negligence and succeeds. Suppose now that another of the injured persons sues the lorry driver for damages also. Has he to prove the negligence all over again? Can the lorry driver (against whom the previous decision went) dispute his liability to the other injured person? It seems to me that if the lorry driver (with the backing of his employer) has had a full and fair opportunity of contesting the issue of negligence in the first action, he should be estopped from disputing it in the second action. He was a party to the first action and should be bound by the result of it. Not only the lorry driver, but also his employer should be estopped from disputing the issue of negligence in a second action, on the ground that the employer was in privity with the lorry driver.
Thus in all cases, both criminal and civil, our law is now brought into line with that of the United States. This should give an English lawyer satisfaction just as it did Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 598,[1932] All ER Rep 1 at 20. As he paid tribute to the judgment of Cardozo J, so I would pay tribute to the illuminating judgment of my friend Roger Traynor J in Bernhard v Bank of America National Trust & Savings Association (1942) 122 P 2d 892 and equally of my friend White J in the Supreme Court in Blonder-Tongue Laboratories Inc v. University of Illinois Foundation (1971) 402 US 313.
The only case to the contrary in English law is Petrie v Nuttall (1856) 11 Exch 569. It is not binding on this court. It can and should be overruled.
Finality
There is still another chair in the room. It is labelled the doctrine of finality. In order to operate as an estoppel, the previous decision must be final. In this case: was the decision of Bridge J in the ‘trial within a trial’ final? If not, did it become final on the verdict of the jury? Or on the dismissal of the appeal of the six men by the Court of Appeal?
In discussing this question, I trust that we need not go into the question of what is a ‘final’ judgment as distinct from an ‘interlocutory’ order. That is a question which arises often in the practical administration of this court. It is impossible of any satisfactory solution. It has no application to the doctrine of finality in regard to estoppel.
The doctrine of ‘finality’ grew up in the time when people had in their minds ‘cause of action estoppel’ and were inclined to overlook ‘issue estoppel’. Now that the House of Lords has recognised the validity of issue estoppel we have to think afresh. In Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 554,[1967] 1 AC 853 at 917 Lord Reid said: ‘… there is room for a good deal more thought before we settle the limits of issue estoppel’; and Lord Upjohn said ([1966] 2 All ER 536 at 573 [1967] 1 AC 853 at 947) that estoppel:
‘… must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind.’
Both those learned Lords envisaged cases where it might be unjust to apply an issue estoppel. Those cases can, I think, all be solved if issue estoppel is applied in this way: when an issue has been decided by a competent court against a party in an earlier proceeding, it should only be regarded as final if he has had a full and fair opportunity of defending himself therein and the circumstances are such that it would not be fair or just to allow him to re-open it in subsequent proceedings.
Abuse of the process of the court
In some cases in the past when the self-same issue has been decided against a party in previous proceedings, the courts have said that they will not allow him to raise it again in a subsequent proceeding. These decisions have been put on the ground that it is an abuse of the process of the court. But I cannot help thinking that, at the present time, they should be regarded as cases of issue estoppel. Take the words of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665 at 668:
‘… it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.’ (My emphasis.)
In that case the previous action was between different parties. It was presumably for that reason that the House of Lords at that date did not put it on issue estoppel; but the point was not raised or discussed, so it is no authority on the doctrine of privity or mutuality.
Take also the words of A L Smith LJ in Stephenson v Garnett [1898] 1 QB 677 at 680:
‘I put my decision on the ground that the identical question raised in this action was raised before the county court judge … and was heard and determined by him … The plaintiff was present at the hearing before the county court judge, and had every opportunity of putting forward his case. The judge heard evidence upon the question and decided it. The issue now sought to be raised in this action has been determined by a court of competent jurisdiction, and the cases of Reichel v. Magrath ((1889) 14 App Cas 665) and Macdougal v. Knight ((1890) 25 QBD 1) shew that it would be an abuse of the process of the Court to allow a suitor to litigate over again the same question which has already been decided against him.’ (My emphasis.)
It is plain from those observations that the real reason why the claim was struck out was because the selfsame issue had previously been determined against the party by a court of competent jurisdiction. What is that but issue estoppel?
The truth is that at the date of those cases the doctrine of issue estoppel had not emerged as a separate doctrine. So the courts found it necessary to put it on ‘abuse of the process of the court,’ Now that issue estoppel is fully recognised, it is better to reach the decision on that ground: rather than on the vague phrase, ‘abuse of the process of the court’. Each doctrine is based on the same considerations and produces the same result.
Applied to this case
In this case, at the ‘trial within a trial’, there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily. The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard, and were in fact heard, and were represented by leading counsel. At the trial the same evidence about violence and threats was given all over again before the jury. If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J was binding on the six men in subsequent proceedings. But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J. In any case the issues are such that it would not be fair or just to allow the decision to be re-opened by the six men.
Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years. It will take weeks and weeks. The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year. If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose. If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence, and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under s 17 of the Criminal Appeal Act 1968. This is such an appalling vista that every sensible person in the land would say: ‘It cannot be right that these actions should go any further.’ They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J or alternatively that it is an abuse of the process of the court. Whichever it is, the actions should be stopped.
I know that the Crown is in law the prosecutor and that the police are different persons. But they can pray in aid the estoppel, it being in their favour and not against them. If need be, I would say that the police were in privity with the Crown.
The only way in which the six men could hope to overcome the estoppel would be by adducing fresh evidence. That is what they tried to do. They said that Dr Paul’s evidence was fresh evidence. But that failed, because it could have been available at the trial, if reasonable diligence had been used. Then they said that they had the evidence of three prison officers which was fresh evidence, but counsel had to admit that he had their statements available and chose not to call them at the trial. Then on behalf of the individual men different points of fresh evidence were taken. But none of these came within any measurable distance of showing that the decision of Bridge J was wrong.
Conclusion
This case shows what a civilised country we are. Here are six men who have been proved guilty of the most wicked murder of 21 innocent people. They have no money. Yet the state lavished large sums on their defence. They were convicted of murder and sentenced to imprisonment for life. In their evidence they were guilty of gross perjury. Yet the state continued to lavish large sums on them, in their actions against the police. It is high time that it stopped. It is really an attempt to set aside the convictions by a sidewind. It is a scandal that it should be allowed to continue. The issue was fully tried out and decided by Bridge J at the ‘trial within a trial’. His finding on that issue is decisive unless there are circumstances which make it fair or just to re-open it. I see no such circumstances. I would allow the appeal and strike out these actions on the ground of issue estoppel.
GOFF LJ (read by Sir George Baker).
We have before us what began life as an appeal by the second defendant, the Chief Constable of West Midlands Police Force, against orders made by Cantley J on 22 November 1978 in each of four actions by which he dismissed applications by that defendant to strike out the respective statements of claim under RSC Ord 18, r 19 and the inherent jurisdiction.
The first defendant, the Chief Constable of Lancashire Police Force, whose interest is identical with that of the second defendant, had made similar applications which had likewise been dismissed. He did not, however, appeal until the third day of the hearing, Wednesday, 14 November 1979, when we gave him leave to add himself as a party to the appeal by the second defendant. There is a third defendant in each of the actions, namely the Home Office, but that department is not directly concerned in these appeals because of admissions made in its defence, and it has never made and could not have made any application to strike out any of the statements of claim as against it. In these circumstances, for convenience I will refer collectively and alone to the first and second defendants as the defendants.
The facts are fully recited in the judgments of Lord Denning MR and Sir George Baker which I have had the advantage of seeing in draft, and I will not waste time by recapitulating them.
It will, however, I think, be convenient at the outset to dispose of a line of argument which occupied a considerable time but which in my view, with all respect, is really irrelevant.
We were pressed with the decision of this court in Hollington v F Hewthorn & Co Ltd [1942] 2 All ER 35,[1954] KB 587 that evidence of a conviction is not even admissible in a civil trial as evidence of guilt, and it was argued per contra that the decision was inconsistent with Hill v Clifford [1907] 2 Ch 236 also in this court, and we were taken through a number of cases, particularly In the Estate of Crippen [1911] P 108, to persuade us that Hollington v Hewthorn was wrongly decided and that we ought not to follow it.
That question, however, is in my judgment no longer open because, as the plaintiffs rightly pointed out, it has been answered by the legislature, which has by s 11 of the Civil Evidence Act 1968 provided that the certificate of conviction shall be evidence but not conclusive evidence.
Then it was argued by the plaintiffs that to find an issue estoppel in this case would run counter to that statutory provision, because it would make it conclusive and, I gather, by analogous reasoning that it must be wrong to hold these actions to be an abuse of the process of the court. In my judgment, however, with all respect, that argument also is beside the point, since at least so far as abuse is concerned it is not necessary to go beyond the judgment of Bridge J on the voire dire and even if one must or does have to rely on the verdict this is still not a case of offering the conviction as evidence of guilt of the offence charged. The problem here is, of course, how far either under the technical rules relating to estoppel, or as a matter of the discretion of the court, Bridge J’s decision that there was no police violence precludes or should be held to preclude the plaintiffs from relitigating the question whether there was such violence.
The first question we have to decide is whether the judgment of Bridge J alone or, if necessary, in conjunction with the verdict of the jury creates an issue estoppel sufficient to bar the plaintiffs’ claims against the defendants, and on this part of the case I regret to say I find myself unable to agree with my brethren.
Issue estoppel is not new in our law. We find it adumbrated as early as Duchess of Kingston’s Case (1776) 2 Smith’s LC (13th Edn) 644,[1775–1802] All ER Rep 623 but it has only recently come to be isolated and clearly distinguished from cause of action estoppel, and as Lord Reid said in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 554,[1967] 1 AC 853 at 917: ‘It seems to me that there is room for a good deal more thought before we settle the limits of issue estoppel.’
I do not propose to attempt that exercise for as I view the matter those limits are sufficiently settled for our own purposes in this case.
It is well settled that the first court must have been one of competent jurisdiction, but that is clearly so in this case. Then it is, of course, axiomatic that the decided issue which is said to give rise to the estoppel and the issue sought to be estopped must be the same; but the identity of issues is not limited to the point actually decided, as appears from the judgment of the court in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 3 E & B 780 at 794, where Coleridge J delivering that judgment said:
‘The question then is, whether the [former] judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue. And we think it does conclude to that extent.’
If then the estoppel can be rested on the voire dire alone, this requirement is plainly satisfied since, although the point actually decided was that the confessions were admissible, it was essential to that decision that the Crown should prove beyond doubt that there was no antecedent police violence; and there is no allegation in any of the pleadings of any or any significant police violence thereafter.
If, however, one has to crave the verdict in aid, the matter is more difficult. The next requirement is that the first decision must be a final one.
In the present case it was as to the point actually decided since the judge’s ruling could not be challenged by the jury. It was suggested in argument that if during the trial something had emerged which caused the judge to come to the conclusion that he had made a mistake or to doubt his ruling he would or could discharge the jury and order a new trial. However, nothing of the kind occurred and, in my view, so far as the point actually decided is concerned, the judgment on the voire dire, if not final when pronounced, certainly was by the end of the trial.
That, however, is not enough, for it is not the decision that the confessions were admissible, but the prerequisite condition that there was no previous violence, on which the estoppel must be founded, and the question arises whether the decision that the police had discharged the onus of satisfying that condition was final, since as the judge made clear in his remarkably detailed, and if I may respectfully say so, highly skilled summing up, the jury had to hear the evidence about the alleged violence and decide for themselves whether they thought there was or may have been police violence in order to determine what, if any, weight they would attach to the confessions.
Thus the issue was open to review by another part of the composite court consisting of judge and jury trying the accused for murder, and therefore, as it seems to me, Bridge J’s decision of no violence cannot by itself be regarded as final for the purposes of issue estoppel.
One must, therefore, in my view, crave in aid the verdict, but this will not complete a final judgment on the same issues, unless it is possible to identify and isolate from the verdict of guilty, the issue of police violence, as something which the jury must have decided and decided against the plaintiffs. That can only happen in the rarest of cases: see per Lord Hailsham in Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 at 517–518,[1977] AC 1 at 34.
The defendants say that this is such a case, and I will consider that further when I come to consider their alternative submission that these actions are an abuse of the process of the court. So far as issue estoppel is concerned, I am prepared to assume that the voire dire and the verdict taken together do constitute a final judgment on the same issues sufficient to found an issue estoppel, for there is in my judgment one fatal objection in this case to the plea of issue estoppel.
Before I develop that, I should just mention in passing the practical difficulty felt by Lord Reid in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 554,[1967] 1 AC 853 at 917:
‘The difficulty which I see about issue estoppel is a practical one. Suppose the first case is one of trifling importance but it involves for one party proof of facts which would be expensive and troublesome; and that party can see the possibility that the same point may arise if his opponent later raises a much more important claim. What is he to do? The second case may never be brought. Must he go to great trouble and expense to forestall a possible plea of issue estoppel if the second case is brought? This does not arise in cause of action estoppel: if the cause of action is important, he will incur the expense; if it is not, he will take the chance of winning on some other point. It seems to me that there is room for a good deal more thought before we settle the limits of issue estoppel.’
The defendants interpret that by submitting that equitable estoppel is subject to the further conditions that the party sought to be estopped should on the first occasion have had a full and complete opportunity of presenting his case, and that it is not unfair in all the circumstances to hold him estopped. Whether that is a sufficient answer, I need not pause to consider, for the first trial in this case was for murder, and the exclusion of the confessions was vital to the present plaintiffs, and so, therefore, was the question of the alleged police violence.
So I come to what I find to be the fatal objection, and that is, that in my judgment both cases must be between the same parties or their privies. The defendants say that it is enough that the estoppel is raised against a person who was a party or privy to the earlier decision and, alternatively, that the defendants were privy to the Crown in its role as prosecutor at the criminal trial. I cannot for myself accept either of these arguments.
The defendants argue thus.
(1) There is no case binding this court to accept the alleged condition that the two cases must be between the same parties or privies.
(2) The requirement of same parties or privies is based on a supposed requirement that estoppels must be mutual, but that is a heresy derived from an error made by Sir Edward Coke in his Commentaries on Littleton (at 352a) and slavishly followed in all the nineteenth century cases without proper examination.
(3) It produces or may produce an absurd result as in Petrie v Nuttall (1856) 11 Exch 569. In that case a person who had instituted a successful prosecution against a landowner for obstructing the highway was himself held liable in damages at the suit of the convicted landowner for trespass on the ground that it was not a highway: Martin B thought the matter should be reviewed and might be corrected in a court of error.
The defendants also referred to Bentham’s Rationale of Judicial Evidence (1843, vol 7, p 171) where he said:
‘There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which he was not a party; but there is no reason whatever for saying that he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A against B should not bar the claim of a third party C; but that it should not be evidence in favour of C against B, seems the very height of absurdity.’
(4) So we ought to reject that view in favour of the American development, which has rejected or is in the process of rejecting the requirement of identity of parties or privies in favour of the proposition advanced by the defendants, as appears from Bernhard v Bank of America National Trust & Savings Association (1942) 122 P 2d 892 in the Supreme Court of California and Bruszewski v United States (1950) 181 F 2d 419 in the United States Court of Appeals.
Point 1 in this argument is clearly right since Mills v Cooper [1967] 2 All ER 100,[1967] 2 QB 459 and Director of Public Prosecutions v Humphrys [1976] 2 All ER 497,[1977] AC 1 were both cases in which it was sought to introduce estoppel into purely criminal proceedings, and although Carl-Zeiss-Stiftung v Rayner and Keeler (No 2)[1966] 2 All ER 536,[1967] 1 AC 853 was a civil action, it was held by the majority that the solicitors sought to be estopped, who clearly were not parties to the earlier West German litigation, were not privies either, and, therefore, there could be no estoppel on any showing.
This, however, still leaves it incumbent on this court to consider how the English law has developed and whether it really is open to us at this time to adopt the American development.
So I turn to the second and third points.
The most relevant part of the commentary by Sir Edward Coke (Co Litt 352a) is:
‘First, that every estoppel ought to be reciprocall, that is, to binde both parties; and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel …’
The argument, as I understand it, is that he was mistaken in thinking that all estoppels must be mutual, because he was directing his mind to cases of particular relationships, such as landlord and tenant, and much reliance is placed on the criticism in Spencer Bower and Turner on Estoppel by Representation (3rd Edn, 1977, p 128, para 129).
I do not think the objection that Sir Edward Coke was dealing only with estoppels arising out of special relationships, for example that a tenant is estopped from denying his landlord’s title, is sound, as his classification of estoppels into three classes (Co Litt 352a) shows that he was giving the question much wider consideration than that. His references to special relationships (Co Litt 352a-352b) occurred when he went on to consider not how estoppels arise, but who may be regarded as privies and therefore bound.
I agree, however, that the passage is not very convincing, because the requirement, if any, that a stranger shall neither take advantage nor be bound is not a reason why estoppels must be mutual, but the consequence of that condition if it exists (Co Litt 352a). At the same time I cannot agree with the actual criticism made in Spencer Bower and Turner on Estoppel by Representation (3rd Edn, 1977, p 128, para 129). It is there said:
‘It is impossible to extract any definite meaning from this curious statement, since the “reason” assigned for the supposed requirement of mutuality in estoppels is not a reason for anything of the sort, but only a reason for, or rather a re-statement of, the rule that only a party or a privy to the representation can be estopped thereby, which has nothing to do with any suggested rule as to reciprocity.’
The proposition that only a party or privy to the representation can be estopped thereby must be true on any showing, but it does not seem to me that any part of the commentary was dealing with that self-evident proposition. Further it must be acknowledged that the proposition that ‘every estoppel ought to be reciprocall’ is certainly not true today as, of course, it does not apply to estoppel by representation including the whole modern doctrine of promissory estoppel. So it comes to this, that the passage in Coke on Littleton, although open to criticism, is not necessarily erroneous with regard to the types of estoppel with which he was dealing which included matter of record which itself includes or is analogous to res judicata.
However, this work was not dealing with res judicata but only estoppel by representation. The volume on the former subject, Spencer Bower and Turner on Res Judicata (2nd Edn, 1969, p 207, para 237) accepts the requirement of identity of parties or privies, saying:
‘It is to be observed here that, in the case of an indictment, the Crown is the only “actor”, whoever may be the person on whose prosecution it indicts, and, therefore, that the identity or non-identity of the named prosecutors in the two prosecutors is wholly immaterial’
citing Petrie v Nuttall (1856) 11 Exch 569 at 575–576 where Alderson B said:
‘It is essential to an estoppel that it be mutual, so that the same parties or privies may both be bound and take advantage of it. The Crown and subject were the parties to the indictment; and therefore it was not between the two parties to this action.’
Whilst this case is not binding on this court, and is open to the criticism of absurdity on which the defendants rely, it is nevertheless a long-standing authority directly in point.
If the matter rested there, I might be persuaded to give my vote to overrule that case, but it does not rest there. In Mills v Cooper [1967] 2 All ER 100 at 104,[1967] 2 QB 459 at 468 Diplock LJ said:
‘That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings had since become available to him.’
This definition was quoted without question by Viscount Dilhorne in Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 at 505,[1977] AC 1 at 19 and in the same case Lord Edmund-Davies said ([1976] 2 All ER 497 at 531,[1977] AC 1 at 51): ‘A basic feature of such estoppel in the civil law is mutuality.’ Then in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 550,[1967] 1 AC 853 at 909–910 Lord Reid said:
‘And the general principle is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject-matter in the former and in the present litigation.’
Lord Guest said ([1966] 2 All ER 536 at 565,[1967] 1 AC 853 at 935):
‘The requirements of issue estoppel still remain (i) that the same question has been decided;(ii) that the judicial decision which is said to create the estoppel was final; and,(iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.’
Lord Upjohn speaks exactly to the same effect, saying ([1966] 2 All ER 536 at 570,[1967] 1 AC 853 at 942):
‘It is clear that a party relying on such a plea must at least prove that the earlier proceedings were determinative of the issues arising in the second proceedings; that the same parties or their privies are common to both proceedings and that the earlier proceedings were within the jurisdiction of the court and were final and conclusive of the relevant issues.’
In the face of these repeated judicial pronouncements in the House of Lords, and having regard to the length of time that the rule of mutuality and consequently the necessity of having the same parties or privies has been considered part of English law, I think it is now too late to reject it and in my judgment we cannot follow the American authorities.
To escape this difficulty the defendants argued that the Crown as prosecutor at the trial and the defendants are privies in interest for the purposes of the alleged issue estoppel, but I cannot accept that argument. Even if the defendants were being sued as representing their respective police forces as a whole, I cannot feel that the duties in relation to the prevention and detection of crimes and the apprehension of offenders and bringing them to trial can be said to give the force a sufficient interest in the legal sense in the outcome of the trial. In fact, however, the position is much more remote, because the defendants are sued on a vicarious statutory liability under s 48 of the Police Act 1964 for the alleged torts of individual officers in assaulting prisoners, and in these circumstances I cannot see any privity between the Crown in its role as state prosecutor and the defendants as by statute tortfeasors.
So far, therefore, as the defendants’ case rests on issue estoppel, I would with all respect to my brethren agree with the judge below and dismiss this appeal, albeit on a highly technical basis, but I reach the same conclusion as they do on the defendants’ alternative argument, which I gather my brethren would themselves adopt had they like me felt unable to accept this as a case of issue estoppel for want of identity of parties or mutuality.
That alternative is that these actions are, in view of what happened at the criminal trial, an abuse of the process of the court.
It is not, I think, disputed that this court has power to strike out the statements of claim in these actions on this ground both under RSC Ord 18, r 19, and its inherent jurisdiction and also to do so at this early stage on these motions, but, whether accepted in argument or not, still in my judgment the court clearly has a discretionary power to stay an action on the ground that the plaintiff is seeking to raise again a question already judicially decided against him, where he has had a full opportunity of presenting his whole case, even although the parties are different so that there is technically no estoppel. In my judgment also, this power can be exercised at an early stage on application to strike out, although its exercise then calls for great caution: see Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 3)[1969] 3 All ER 897 at 908–909,[1970] Ch 506 at 537.
This is in my view clearly established by Reichel v Magrath (1889) 14 App Cas 665 and Stephenson v Garnett [1898] 1 QB 677. The latter is directly in point since there all three members of the Court of Appeal made it clear either that there was no estoppel, or at least that there were difficulties in holding the plaintiff was ruled out per rem judicatam and all three expressly declined to rest their judgments on that basis. A L Smith LJ said (at 680–681):
‘I do not rest my decision upon the ground that the matter is res judicata, for I do not think it can be said that it is. I put my decision on the ground that the identical question raised in this action was raised before the county court judge upon an application for an order to tax the costs of the action in the county court, and was heard and determined by him … the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.’
Chitty LJ said (at 681):
‘I do not rest my judgment on the ground that the question is res judicata in the strict sense of that term.’
Finally Collins LJ said (at 682):
‘I am of the same opinion. I agree that there is a difficulty in bringing this case within the doctrine of res judicata … The very same question which is raised in this action was decided by the judge, and that lets in the inherent jurisdiction of the High Court, as appears from the cases which have been cited to us, to stay the action as frivolous and vexatious and an abuse of the process of the Court.’
The question before the county court judge on the application to tax the costs involved rejecting the release given by the plaintiff on the ground that it was obtained by misrepresentation so that the second case in effect involved trying the same issue. So here the question before Bridge J whether the confessions were admissible necessarily involved and indeed was wholly dependent on the decision of the question now raised whether there was police violence.
The substance of the matter is that the very question which the plaintiffs seek to raise in these actions was heard and determined by Bridge J in a trial lasting eight days, and I think it is precisely covered by what Lord Halsbury LC said in Reichel v Magrath (1889) 14 App Cas 665 at 668:
‘I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.’
Moreover, it was tried then on the criminal standard of proof, ie beyond doubt, and the plaintiffs are now seeking to say that on a balance of probabilities that is likely which has already been held certainly not so.
Moreover, as Cantley J pointed out, in my view rightly, ‘no antique or pedantic rules are involved in this part of the application’.
Further, in considering whether to strike out these statements of claim as an abuse of the process of the court, I think it is unnecessary to go beyond the judgment of Bridge J, but even if one does look further, the verdict only adds to the strength of the defendants’ case for, as Cantley J also observed, it seems at least probable that one jury already has heard and disbelieved them (the plaintiffs) too.
It was argued before Cantley J and us that it was open to the jury at the criminal trial to take the view that the plaintiffs were assaulted but that nonetheless they told the truth when they were making their confessions, but, as Cantley J pointed out, they could only take that course by flatly disregarding the strong direction given to them by Bridge J. That direction was as follows:
‘Members of the jury, if the conclusion you reach on this part of the evidence is that you incline to the view that the defendants’ account is or may be reasonably the true account, substantially honest and accurate, then, of course, the statements in writing are worthless and you will reject the disputed evidence of the confessions or admissions made by word of mouth.’
Moreover, Bridge J said that if the case had stopped there, that is apart from the confessions, he would not have left the case to their consideration, because—
‘… if you put upon those matters of background the sinister construction which the Crown invite you to, no matter how far they go, they do not go beyond raising suspicion; strong suspicion perhaps, but these matters, if they do show motive, opportunity and an intention to make a getaway, still fall a long way short of anything that anyone could possibly regard as proof, that any one of these six men participated in the planning or the placing of the explosive devices at the Mulberry Bush or the Tavern.’
Prima facie, therefore, in my judgment, differing with all respect from Cantley J, this is a case in which we ought to strike out these statements of claim as against the defendants, particularly as it seems to me that, whilst accused persons ought to be given full opportunity of making a case if they think they have one that the confessions relied on by the prosecution were obtained by police violence, the police ought to be protected against subsequent harassment by the same charges being pursued against them in civil proceedings when they have been fully vindicated at the criminal trial.
The principle on which estoppel is founded, namely that there should be an end of litigation, and the absurdity pointed out by Martin B in Petrie v Nuttall (1856) 11 Exch 569, and by Jeremy Bentham in his Rationale of Judicial Evidence (1843, vol 7, p 171) and the force of the cogent reasoning in the American cases, all compel me to the conclusion that it must prima facie be an abuse of the privilege of the court to allow the matter to be litigated all over again.
However, the plaintiffs raise three answers: (i) that the judgment on the voire dire was obtained by perjury;(ii) that they intend to adduce further evidence: (a) a medical clinical interpretation to be given by Dr Paul of some photographs taken before the plaintiffs were received into prison and (b) the evidence of certain prison officers; and (iii) waiver. The third is an independent point to which I will return later, but the first and second, in my view, fall to be considered together.
The plea of perjury was not relied on by counsel on behalf of the plaintiffs Power, Callaghan and Hill.
There can, of course, be no doubt that estoppel or abuse of the process of the court cannot be relied on if the first judgment was obtained by perjury: see per Viscount Dilhorne in Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 at 506,[1977] AC 1 at 21:
‘It is well established that in civil cases a decision which would found an estoppel and amount to res judicata can be impugned if it was obtained by fraud (Duchess of Kingston’s Case (1776) 1 Leach 146,[1775–1802] All ER Rep 623, Abouloff v Oppenheimer & Co (1882) 10 QBD 295 and Vadala v Lawes (1890) 25 QBD 310,[1886–90] All ER Rep 853) and I think the law is correctly stated in Spencer Bower and Turner on Res Judicata (2nd Edn, 1969, p 323, para 317) as follows: “The fraud necessary to destroy a prima facie case of estoppel by res judicata includes every variety of mala fides and mala praxis whereby one of the parties misleads and deceives the judicial tribunal.”’
In my judgment, however, where the issue at the first trial was which of two parties or their witnesses was committing perjury, it is not sufficient merely to aver that the judgment was obtained by perjury since that is no more than to say the decision ought to have gone the other way. There must be sufficient fresh evidence to support the allegation.
Thus in Flower v Lloyd (1879) 10 Ch D 327 at 333, where the Court of Appeal held that the alleged fraud was not proved so that what was said as to the effect of fraud was obiter, James LJ, with the concurrence of Thesiger LJ, said:
‘Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm’s length could be set aside by a fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the Plaintiffs had sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum.’
Baggallay LJ had misgivings and, of course, with all respect, James LJ was putting it too high, for he was doubting whether fraud would be an answer even if proved, but subject to that his observations are I think helpful.
Then I proceed to Birch v Birch [1902] P 130 at 136–137 which was a case of true estoppel. Here Vaughan Williams LJ said:
‘And I think that the Court ought to treat as frivolous and vexatious any cause of action in support of which the plaintiff does not produce evidence of facts discovered since the former judgment which raise a reasonable probability of the action succeeding … But in each case it is a question of degree. If the fact alleged to have been discovered so evidenced and so material as to make it reasonably probable that the action will succeed? If it is, I think the action ought not to be stayed.’
and Cozens-Hardy LJ said (at 138):
‘The judgments of the Court of Appeal and of the House of Lords in Boswell v. Coaks ((1894) 6 R 167) contain some important observations as to the mode in which a motion such as that which is now before us ought to be dealt with. Lord Selborne points out that it is not sufficient for the plaintiff to allege fraud. It is the duty of the Court to receive such evidence, pro and con, as is material to the question whether there really has been, since the former judgment, a new discovery of something material to disturb the former judgment; and A. L. Smith L.J. states that the plaintiff must shew a reasonable possibility of the alleged fraud being established.’
Finally, in Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 at 514,[1977] AC 1 at 30, Lord Hailsham said:
‘No doubt, as was decided in Birch v Birch [1902] P 130, and as Diplock LJ indicated in Mills v Cooper [1967] 2 All ER 100 at 104–105,[1967] 2 QB 459 at 468–469, where the party seeking to impugn the earlier judgment has no significant new evidence to introduce in support of his claim, he will not be able to avail himself of the exception.’
So the fraud and fresh evidence points merge into one, and that is probably why counsel for the plaintiffs Power, Callaghan and Hill, did not rely on the fraud point on behalf of the plaintiffs he represents; and the questions are whether the plaintiffs are entitled to adduce the additional evidence on which they seek to rely and whether that evidence is sufficient.
The defendants say that the proper test is that laid down by Lord Cairns LC with regard to estoppel in Phosphate Sewage Co v Molleson (1879) 4 App Cas 801 at 814, namely that the new evidence must be such as entirely changes the aspect of the case. Alternatively they say that the court should apply the rule which it observes with regard to appeals: see Ladd v Marshall [1954] 3 All ER 745 at 748,[1954] 1 WLR 1489 at 1491 per Denning LJ:
‘… to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.’
In my judgment the former is the correct view. So, it is not permissible to call further evidence which was available at the trial or could by reasonable diligence have been obtained and the fresh evidence must be likely to be decisive. In my judgment, the plaintiffs fail on both heads.
They fail in limine because the so-called fresh evidence was available at the trial or could by reasonable diligence have been obtained. They did not know of Dr Paul or about the evidence which he might be able to give, but they could by reasonable inquiries have ascertained that expert evidence of this nature could be given. Counsel for the plaintiffs Power, Callaghan and Hill conceded that he could not argue that such evidence was not obtainable with reasonable diligence and in my opinion rightly so. It is, in my judgment, no answer to say that they relied on the evidence to be given by Dr Harwood, the prison doctor, and could not have foreseen that he would be totally discredited and his evidence rejected as perjury as it was: see Bridge J’s summing up. First, the evidence which Dr Paul would give is specialised evidence, not such as would be given by a general practitioner; secondly, after Dr Harwood’s evidence was exploded, there was ample time to have secured a further witness or at least sought an adjournment. He called on the voire dire on 22 June and called again as the trial proceeded about three weeks later, and the trial did not end until 17 August.
So far as the prison officers are concerned, who they were and what evidence they could give was known to the plaintiffs before the trial as all this information was given in a report made by Mr Owen, the Assistant Chief Constable of Lincoln, who had been appointed before the trial to inquire into the allegations that the plaintiffs had all been assaulted in Winson Green prison, and this information was disclosed to the plaintiffs.
It is said that the officers could not be called or that it was useless to call them because they were themselves facing possible criminal charges, but as their evidence, if true, exculpated them there could be no danger in calling them. Even if unexpectedly they gave evidence against the plaintiffs, then they could have obtained leave to treat them as hostile and put their statements to them, and so avoid damage.
The only objection to calling them was that in the circumstances their evidence would have little, if any, weight, but that does not make their evidence something which was not available at the trial.
However, lest it be thought that this is rather a narrow ground on which to strike out the proceedings, at all events at this stage, let me consider whether the probative value of the new evidence does come up to the standard of the test in Phosphate Sewage Co v Molleson (1879) 4 App Cas 801 at 814, that is such as would entirely change the aspect of the case. In my judgment it clearly does not.
As to the evidence of the prison officers, the answer must surely be in the negative. This is not evidence of some new facts or factors and its weight is open to considerable doubt since they all say that all the plaintiffs had facial bruises or injuries when they reached prison, but there were witnesses who saw them in the magistrates’ court, none of whom observed this, and the two solicitors who examined some of them said the men drew attention to marks on their chests, not faces, and some at least and in particular McIlkenny did not have facial injuries. When Dr Paul was confronted at their trial with the fact that the journalists and others at the magistrates’ court did not observe facial injuries, he said that was not surprising; it would take a forensic expert to discover this. Why then was it so obvious to the prison officers?
Moreover, this is still the evidence of interested parties, notwithstanding they were acquitted at their trials, because they all made statements or reports and could not go back on them, even if they wished, without confessing that they had deceived the Assistant Chief Constable and made false statements at their own trials.
So far as Dr Paul is concerned, counsel for the plaintiffs Power, Callaghan and Hill, carefully reviewed his reports, comparing them with the pleadings; and he satisfied me that (a) in certain respects the injuries detected by Dr Paul go beyond those of which the plaintiffs complain,(b) even on the basis of Dr Paul’s evidence, he plainly establishes that four out of the six plaintiffs are exaggerating in the sense that he cannot support from the photographs that assaults of the magnitude and frequency of which they complain could have taken place, there is a vast disparity between what is alleged and what Dr Paul’s evidence suggests is proved.
I need not go through this in detail, but as examples. (1) Callaghan complains of no assault by the police which could have given him a left black eye, and in the statement of reported injuries, he says the injuries he received in prison were two black eyes, but the inference which Dr Paul draws from the photographs is that they already showed two black eyes.(2) In the statement of claim, the plaintiff Hill complains to repeated blows about the face and head and of having his head banged against the wall, yet all that Dr Paul could see from the photographs was ‘(a) Small dark mark present just to LEFT of the mid line of UPPER LIP;(b) Slight discolouration beneath RIGHT eye in Lateral View; Very small dark mark present beneath LEFT eye.’ Indeed in his report, Dr Paul says:
‘This man certainly sustained injury both prior to the taking of the polaroid photographs on 24th November, and after, but there is no medical corroboration at all for very many of his allegations and it would seem that there has been very considerable exaggeration in many areas.’
It is true that Dr Paul’s evidence is consistent with the cases of Hunter and Walker, but even so it does not seem to me sufficiently cogent to justify reopening the whole question which was fully heard and determined, particularly, and I come back to this as an additional factor, as it could have been called at the trial.
Furthermore, if the plaintiffs could really produce cogent evidence that they were assaulted by the police, this should have been adduced on their applications for leave to appeal in March 1976. Technical medical evidence such as Dr Paul would give was certainly available by then, and so also really was the prison officers’ evidence, although they were not brought to trial until June. Even if, however, it be said that their evidence ought not to be regarded as having become available until then, still the proper course for the plaintiffs to take must surely be to petition the Home Secretary under s 17 of the Criminal Appeals Act 1968 for a reference to the Court of Appeal.
This is in truth as it seems to me an attempt to launch a collateral attack on the judgment of Bridge J on the voire dire and on the criminal conviction. Counsel for the plaintiffs Power, Callaghan and Hill said, ‘No. It is a genuine attempt to recover damages’, but he was constrained to admit that if successful, the position with regard to the conviction would or might be affected, and that it would require further consideration.
It seems to me that what Lord Diplock said in Saif Ali v Sydney Mitchell & Co (a firm)[1978] 3 All ER 1033 at 1045,[1980] AC 198 at 222–223 applies with much force to the present case. He said:
‘Under the English system of administration of justice, the appropriate method of correcting a wrong decision of a court of justice reached after a contested hearing is by appeal against the judgment to a superior court. This is not based solely on technical doctrines of res judicata but on principles of public policy, which also discourage collateral attack on the correctness of a subsisting judgment of a court of trial on a contested issue by retrial of the same issue, either directly or indirectly in a court of co-ordinate jurisdiction … My Lords, it seems to me that to require a court of co-ordinate jurisdiction to try the question whether another court reached a wrong decision and, if so, to enquire into the causes of its doing so is calculated to bring the administration of justice into disrepute.’
Cantley J would himself have struck out the statements of claim but for the weight which he attached to the further evidence. He said:
‘The plaintiffs now wish to call Dr Paul, whose evidence was unknown to them at the time of their trial. They also wish to call some unspecified prison officers to say that the plaintiffs already had some injuries when they arrived at the prison. It is said that the plaintiffs with due diligence and care could have obtained and called expert evidence about the photographs at the trial, even though they had never heard of Dr Paul. So they could, if they had thought it necessary. However, I do not consider that the rule about the introduction of fresh evidence is as strict in relation to the procedure for striking out for abuse of process as it is in relation to res judicata. It seems to me that if further evidence is tendered and it appears genuine and not from a suspect source, and it also appears capable of belief, it must go into the scales in deciding whether the plaintiffs should be shut out altogether from proceeding with their case. This applies to the proposed evidence of Dr Paul, although I do not for a moment presume to decide whether his evidence would be accepted ultimately or not. The same applies, to some extent, to the evidence of the unidentified prison officers, although they are people who had a personal or corporate interest to serve. It is also right to say, as [counsel for the Chief Constable of the West Midlands Police] did, that the affidavits about the evidence of the prison officers lack the particularity to which the court is entitled on the hearing of an application of this sort. It seems to me that I have to consider not whether it is improbable but whether it is not reasonably conceivable that another tribunal acting judicially might accept at least part of the plaintiffs’ case. I have hesitated about it, but I have come to the conclusion that it would not be right to dismiss this action at this stage as an abuse of process. The application accordingly fails.’
I pause to observe that the prison officers are now specified and we have seen their reports and statements, but as I have said all this information was available to the plaintiffs before the trial.
With all respect to the judge, his test whether it is not reasonably conceivable that another tribunal acting judicially might accept at least part of the plaintiffs’ case, is too favourable to them, since the very issue sought to be raised has already been heard and determined by a court of competent jurisdiction, and it is for the plaintiffs to show why they should be allowed to reopen it. Moreover, it is clear that the confessions could not have been admitted if Bridge J had not been satisfied that all, not some, of the alleged acts of violence had not occurred.
Even, however, on Cantley J’s own test, is it reasonably conceivable that a civil trial judge would hold probable that which Bridge J on the criminal standard of proof held certainly was not so?
For these reasons, subject only to the defence of waiver, which I must now proceed to consider, I would agree that these appeals should be allowed and these actions struck out against the defendants as an abuse of the process of the court.
As against the second defendant, the Chief Constable of the West Midlands Police Force, no waiver is or could be set up, save in so far as it is necessary for the defendants to rely on the verdict, but it is said that there was a waiver to that extent because counsel for the Chief Constable of the West Midlands Police before Cantley J expressly stated that he based his case on the voire dire only. As against the defendant the Chief Constable of the Lancashire Police Force, waiver is alleged because that defendant stood by to see what would happen on his co-defendant’s application, and it was not until Wednesday, 14 November 1979, the third day of the trial, that leave was given for him to be added as an appellant.
I do not think waiver as such applies to the abuse of process aspect of this case. It is only one of the factors to be considered by the court in the exercise of its discretion, and for my part I see nothing in this argument to lead me to alter or even doubt the conclusion I have so far reached.
Even, however, if that be wrong and waiver is an independent plea, still there is here no express waiver. If there be such at all, it is implied, and it seems to me impossible on the facts of this case to draw such an implication. The second defendant does not, I think, have to rely on the verdict at all so far as abuse of process is concerned; the judgment on the voire dire is sufficient, but even if he does, in my judgment it would not be right to limit him to the argument in the court below. Quite apart from this, and as to both defendants, the implication is in my view excluded for two reasons: (1) neither defendant has acted inconsistently with the claim he is now making, and (2) the plaintiffs cannot show that they have acted to their prejudice as the result of anything done or left undone by the defendants: see 16 Halsbury’s Laws (4th Edn) para 1471.
SIR GEORGE BAKER.
On Thursday, 21 November 1974, bombs exploded at two public houses in the centre of Birmingham, the Mulberry Bush at 8.18 pm and the Tavern in the Town a few minutes later. Twenty-one people were killed and over 160 injured, some seriously.
That same evening at about 11.00 pm five of the present plaintiffs were stopped at Heysham and taken to Morecambe police station. They had been on their way to Belfast to attend, so they said, the funeral of one James McDade, an Irish Republican Army terrorist (although they denied they knew that), who had been killed by an exploding bomb in Coventry on 14 November 1974. They had assembled at New Street Station, catching the train for Belfast at 7.55 pm. They are all Irishmen, supporters of the Irish Republican movement, and if some astute person had not spotted that they all had tickets from Birmingham, three returns numbered consecutively and two singles also so numbered, they could, if they were wanted men, have hidden in Belfast until they felt it was safe to return to England where they had been for some years.
Callaghan, the sixth man and the second plaintiff, was arrested later at 10.30 pm on Friday, 22 November, at his home at Erdington in Birmingham and taken first to Queen’s Road police station, Aston, in Birmingham, and later to Sutton Coldfield police station.
The plaintiff Power made a statement which he signed at Morecambe police station during the morning of Friday 22nd, and later that day he and the other four were taken from Morecambe to the Queen’s Road police station.
On Saturday, 23 November, the plaintiffs McIlkenny, Walker and Callaghan each made a statement which he signed at Queen’s Road police station. Hunter and Hill did not make written statements but only oral confessions.
On Sunday 24th all the men were taken to the Steel House Lane lock-up and on the Monday morning they appeared before the magistrates charged with murder. From the court they were taken to Winson Green prison.
Swabs had been taken at Morecamble for explosive contamination, which were positive for Hill and Power and, to a lesser extent, Walker, with explosive substance.
The men were all photographed on the Sunday, and the Polaroid photographs have been available to them throughout.
The plaintiffs complain of persistent assaults, batteries, threats and harassment by police officers of the West Midlands Force at Morecambe, where all except Callaghan were detained, and thereafter up to the time when they appeared before the magistrates. They further complain of assaults by prison officers and prisoners in Winson Green prison, and Hunter says he was assaulted by police or prison officers or both on admission. They claim that the Chief Constable of the West Midlands Police Force is liable pursuant to s 48 of the Police Act 1964 and that the Home Office is liable for what happened in prison. Power and Hill also claim against the Chief Constable of the Lancashire Police Force for, in short, failing to prevent or stop assaults by West Midlands police.
When the plaintiffs appeared at court on Monday, 25 November 1974, they were seen by a number of people, including a reporter, who later testified that with the exception of Walker they saw no facial injury on any of them. Nor was there any complaint, except by Power, Hill and Hunter to their duty solicitors Mr Gold and Mr Curtis, that they had been beaten up, and whose attention they drew to discolouration and scratches on their chests. Walker, who had bruised his left eye when he had a coat over his head and came against a car, explained to his duty solicitor, Mr Curtis, in the presence of a police officer that he had fallen.
They were received into Winson Green prison at 11.15 am. No record was then made of any damage or injury. They were seen by Dr Harwood, the prison medical officer, at 2.00 pm.
When they next came before the magistrates on Thursday, 28 November, they were seen to be injured. Complaints were made, and on the following day the assistant governor obtained statements from a number of warders. Extracts have been exhibited by Mr Rose-Smith, a solicitor appearing on behalf of the plaintiffs Power, Callaghan and Hill.
On 18 December 1974 Assistant Chief Constable Owen of the Lincolnshire Police was instructed to carry out an inquiry into the allegations of violence which had received considerable publicity. He reported on 13 May 1975, and all the many statements taken by Mr Owen were made available to defending counsel at the trial of the plaintiffs for murder before Bridge J at Lancaster from 9 June-15 July, 1975. All six were found guilty of murder. Leave to appeal was refused on 30 March 1976 by the Criminal Division of the Court of Appeal. To conclude this part of the history: on 30 December 1975 prison officers were charged with assaults occasioning actual bodily harm and 14 were tried at Birmingham Crown Court before Swanwick J on 10 June-15 July 1976. The accused made statements from the dock denying the use of violence as charged but saying they had seen violence used. They were all acquitted.
The Home Office now admits that the plaintiffs were assaulted and injured after their admission to prison and it is no part of the Home Office case that they sustained any injury by assault prior to their admission.
At the trial for murder the question of the admissibility of each of the written and oral confessions was argued before Bridge J for eight days at a ‘trial within a trial’. At the end the judge in a written judgment indicated the main considerations that led him to the conclusion that the confessions were voluntary and must be admitted. He said:
‘I must be sure that each confession is voluntary before I rule it admissible and if at the end of the day I entertain in any case any doubt that must be resolved in favour of the defence and the evidence excluded’
thus emphasing the high burden to be discharged by the prosecution which had in effect to prove beyond reasonable doubt that the prisoners were not assaulted. Having contrasted the evidence of the defendants, each of whom went into the witness box on this issue, that there was gross personal violence and outrageous threats to make them confess and that the confessions were fabricated by the police, and of the police officers (all of those concerned gave evidence) that all the interrogations had been conducted with propriety, the judge said: ‘… it is an inescapable conclusion that there is gross perjury … on one side or the other.’
He formed a provisional view, based on clear indications, that the gross perjury was by the defendants. He then reviewed certain of the evidence, rejected the evidence of Dr Harwood who has been described to us as an unexpectedly disastrous witness for the defence and of whom Lord Widgery CJ said on the application for leave to appeal: ‘… [it was] doubtful whether [he] ever qualified for consideration as a truthful credible witness at all’, and ‘… that no reasonable jury properly instructed could have given any credence to Dr Harwood’.
Finally Bridge J said:
‘I have come to the conclusion that there is no reason to entertain any doubt on the soundness of my impression, produced by the police officers who gave evidence … I am satisfied those witnesses were giving honest and accurate evidence.’
After it had been held that all the confessions were admissible, the same evidence was given all over again and tested a second time by cross-examination to enable the jury to decide what, if any, weight should be given to the confessions, and a Dr Woodcock was called by the prosecution in rebuttal of Dr Harwood’s evidence that the bruises were at least 12 hours old by 2.00 pm on Monday, 25 November 1974.
The writs in the present actions were all issued between 13 and 18 November 1977, just within the three years limit. With two very minor and I think immaterial exceptions in the case of Hunter, the allegations now made are, and are accepted by counsel to be, exactly the same as those made against the police at the trial within a trial, and at the trial. The defendant Chief Constables contend that the decision of Bridge J raises an issue estoppel. When the same facts had been litigated fully before him he found, on the higher criminal burden of proof, that the alleged assaults did not take place, that the present plaintiffs were liars and that their statements were admissible.
Summonses to strike out the claims on this ground both under RSC Ord 18, r 19, and under the inherent jurisdiction of the court as an abuse of the process of the court were referred by the master to Cantley J in chambers. Both Chief Constables now appeal from the judge’s refusal to strike out, and on the further ground that an issue estoppel arises from the convictions on the jury’s verdicts of guilty.
I can deal with this additional ground quite shortly for in my opinion it is not well-founded, although the conclusion of the trial, with the refusal of leave to appeal from the verdicts, has considerable importance, in the context of the finality of Bridge J’s ruling. Despite the very careful argument by counsel for the plaintiff Hunter that the verdicts did not necessarily import findings that there had been no assaults, I find it impossible, having regard to the terms of the judge’s direction to the jury on the importance of the confessions and the weakness of the other evidence by itself, to agree. The real objection is that since Goddard LJ read the decision of the Court of Appeal (with Lord Greene MR and du Parcq LJ) in Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35,[1943] KB 587 evidence of a conviction is not admissible in a civil action. Professor Goodhart’s criticism of the decision in (1943) 59 LQR 299 followed by many others, by judges and academics (for it caused great inconvenience) resulted in consideration by the Law Reform Committee of the law of evidence (see the Fifteenth report of the Law Reform Committee on the rule in Hollington v Hewthorn Cmnd 3391(1967)), and the enactment of ss 11 and 13 of the Civil Evidence Act 1968, the effect of which broadly is, that in defamation actions a conviction is conclusive evidence that the convicted person committed that offence (s 13), but in other civil proceedings that fact of conviction is admissible, and when proved he ‘shall be taken to have committed that offence unless the contrary is proved’.
The arguments addressed to this court, that we are not bound to follow Hollington v Hewthorn because it was concerned with an accident case; because it was wrongly decided; because there is an earlier inconsistent decision of this court which was not cited (namely Hill v Clifford [1907] 2 Ch 236 in which an order of the General Medical Council was admitted as prima facie evidence (per Cozens-Hardy MR and Buckley LJ) or conclusive evidence (per Barnes P) that the defendant had been guilty of acts ‘infamous or disgraceful in a professional sense’, and a decision of the Privy Council in Harvey v R [1901] AC 601; because the New Zealand court in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961 has refused to follow Hollington v Hewthorn; and because decisions in American courts have admitted convictions as evidence in civil cases, cannot prevail against the statutory provision of s 11 which I think prevents an estoppel arising from conviction, in contrast to s 13 which makes the conviction conclusive evidence. We are bound by Hollington v Hewthorn and by the statute in this case although a claim for malicious prosecution may be an exception.
But that is not to say that the decision on the voire dire (which I will call ‘the decision’) fails to qualify as an estoppel because of Hollington v Hewthorn and the statute. In my opinion they are concerned only with the admissibility and proof of a conviction, and it is both unnecessary and undesirable to extend the scope of Hollington v Hewthorn to a situation which was not considered and would not fall within the reasoning in Hollington v Hewthorn [1943] 2 All ER 35 at 40,[1943] KB 587 at 595, for example:
‘It [the civil court] cannot know what arguments were addressed to it [the criminal court] or what influenced the court [that court] in arriving at its decision. Moreover the issue in the criminal proceedings is not identical with that raised in the claim for damages.’
Then counsel for the plaintiffs differ as to the effect of the statute on ‘the decision’. One says ‘the decision’ is admissible and has to be weighed in the balance; others argue that it is completely inadmissible. I have no doubt that the latter view is correct if ‘the decision’ is the same as the conviction and caught by Hollington v Hewthorn. Section 11(3) of the 1968 Act makes a clear distinction between a conviction and a finding of fact in criminal proceedings, and provides that s 11 shall not prejudice the operation of any other enactment making a finding of fact in any criminal proceedings conclusive evidence of other proceedings. We were told that this is referring to provisions in Social Security Acts but it is a saving clause, not a prohibition of an estoppel arising from a decision on a finding of fact in the course of a criminal prosecution.
Director of Public Prosecutions v Humphrys [1976] 2 All ER 497,[1977] AC 1 settled finally that issue estoppel has no place in English criminal law, but as I read the speeches, and the judgments in Mills v Cooper [1967] 2 All ER too,[1967] 2 QB 459, neither case is authority for the proposition that an issue of fact affirmatively decided in a criminal case cannot be used as conclusive, that is, as an issue estoppel, in a subsequent civil case.
So the question is whether ‘the decision’ satisfies the requirements of issue estoppel. It has never arisen or even been considered in any of the cases, probably because it is very rare for a judge to give a considered judgment on the issue of admissibility identifying the facts which he has found.
There can be no doubt that there has been a judicial decision, namely that the statements were admissible, and that Bridge J was a competent court. In reaching that decision, the identical questions that the plaintiffs are now seeking to raise again, had to be, and were, decided, and there was no appeal from Bridge J’s decision, if indeed there could be.
Estoppel per rem judicatam also requires (see Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 550, 554,[1967] 1 AC 853 at 909–910, 917)—
‘that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties … in the former and in the present litigation’… issue estoppel may be a comparatively new phrase but I think the law of England—unlike the law of some other countries—has always recognised that estoppel per rem judicatam includes more than merely cause of action estoppel … It seems to me that there is room for a good deal more thought before we settle the limits to issue estoppel.’
The distinction between the two types of estoppel is also emphasised in the judgments of Diplock LJ in Thoday v Thoday [1964] 1 All ER 341 at 351–352,[1964] P 181 at 197–198 and in Fidelitas Shipping Co Ltd v v/o Exportchleb [1965] 2 All ER 4 at 9–10,[1966] 1 QB 630 at 641–643, and the appellants argue that the development of issue estoppel has been masked and clouded by considerations relevant to cause of action estoppel and that the time has now come for issue estoppel to be segregated so that it can develop, without the restraint of technicalities, to fulfil its underlying rationale that public policy requires an end to litigation and that a man should not have to fight all over again in a civil action the self-same issue that has been decided before, albeit in the course of a criminal trial, provided always that the party against whom the estoppel is raised had a fair and full opportunity to contest the issue at the previous trial.
Finality
‘This,’ said Lord Guest in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 565,[1967] 1 AC 853 at 935,‘is understood to mean “final and conclusive on the merits” of the cause’, citing r 196 of Dicey’s Conflict of Laws (7th Edn, 1958, p 1052).
The ruling of Bridge J on the voire dire (the decision) was made as a result of evidence and submissions which finally determined that the confessions were admissible. His decision to admit was not capable of review by the jury but only by the Court of Appeal. True the facts of violence had again to be canvassed before the jury on the question of the weight to be given to the confessions, but that does not seem to me to detract from the finality of the decision on admissibility and the findings of fact on which it was founded.
Further arguments against finality are that if the trial had aborted and there had to be a new trial, at least if it was before another judge, the question of admissibility would have had to be relitigated. So too if part of a document was relevant or held admissible in a trial, the admissibility of the same document of which another part was relevant might again be in issue in a later trial. And, if there had been a verdict of not guilty, ‘the decision’, having no separate entity, and being but a step on the way to the jury’s verdict, would fall to the ground. The answer is that these events did not happen here. So none of these difficulties exists. ‘The decision’ is and remains final. It may be said to be perfected by the verdict of guilty in the same manner as it is perfected by failure or absence of an appeal. I fail to see any difference here between a verdict of not guilty and a successful appeal. The structure on which ‘the decision’ is founded would be swept away taking the decision with it, but until that happens it is final. Alternatively it remains final but it would be unjust to use it.
It is I think of importance to realise in the wider context some of the consequences which follow if ‘the decision’ does not raise an estoppel: (1) These actions then become collateral attacks on the verdicts of guilty however much the plaintiffs by their counsel protest otherwise. This has been emphasised in the American cases: see Eagle, Star and British Dominions Insurance Co v Heller (1927) 140 SE 314 ‘Judgments in criminal cases like other judgments cannot be attacked collaterally’, and … it is immaterial … whether [the] decision is sound or unsound’. Could anyone doubt on the facts that if any of these plaintiffs succeeds there would be an immediate petition to the Home Secretary to reopen the conviction for murder? (2) If any of the 160 injured or the dependants of the dead or even the insurers of the premises should feel that any damages recovered by the plaintiffs from the Home Office ought to be used to compensate for injuries and damage caused in the explosion, each might have to establish anew in each case that the confessions were true and not extracted by in effect torture, or manufactured. This follows if privity of parties is required for none was a party to the previous proceedings. (3) The decision of a judge in the county court who heard an assault action by an injured party would be admissible and could be conclusive in a subsequent action, whereas the decision of Bridge J although applying the higher burden of proof would be neither.
In Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 573,[1967] 1 AC 853 at 947 Lord Upjohn summarised the principle thus:
‘All estoppels are not odious but must be applied so as to work justice and not injustice, and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind.’
He had rendered the Latin maxim nemo bis vexari debet pro una eadem causa, which Lord Guest had described as ‘private justice’, as ‘the same party should not be harassed twice for the same cause’.
Privity
With this in mind I come to the final requirement of issue estoppel, namely privity of parties which I confess I found most difficult. Lord Guest summarised it thus ([1966] 2 All ER 536 at 565,[1967] 1 AC 853 at 935):
‘… (iii) that the parties to the judicial decision of their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.’
In Fidelitas Shipping Co Ltd v v/o Exportchleb [1965] 2 All ER 4 at 9,[1960] 1 QB 630 at 640 Lord Denning MR put it thus:
‘The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.’
The Carl-Zeiss case was ‘singulary complicated’([1966] 2 All ER 536 at 568,[1967] 1 AC 853 at 940 per Lord Upjohn), but the only question was ‘the authority of the solicitors to act for the Stiftung’([1966] 2 All ER 536 at 559,[1967] 1 AC 853 at 925 per Lord Reid), and ‘The estoppel here, if any, must be issue estoppel, the issue being that want of authority to bring the action’([1966] 2 All ER 536 at 560,[1967] 1 AC 853 at 926 per Lord Hodson). There was no privity ‘because the solicitors had no connection with and certainly no interest in the German litigation’, and ‘… if these solicitors were bringing this action on account of or for the benefit of the Council of Gera, I would hold that res judicata could be pleaded against them’([1966] 2 All ER 536 at 550, 551,[1967] 1 AC 853 at 910–911, 912 per Lord Reid).
But they were not and that was the real point of the case. The point never arose whether a stranger could take advantage of a decided issue. I do not think, therefore, that the Carl-Zeiss case prohibits this court from accepting the wider test now put forward that issue estoppel can be raised against a party who was a party or in privity with a party to the earlier proceedings provided he had full and fair opportunity to contest the issue. Indeed Lord Wilberforce in the Carl-Zeiss case [1966] 2 All ER 536 at 586,[1967] 1 AC 853 at 968 said: ‘Obviously in these circumstances the test of identity of parties cannot be the formal test of identity on the record, so what is it to be?’ Having said that he did not share the majority view that there was not identity of parties in that case he continued: ‘Briefly, in my opinion, one must look to see who in reality is behind the action …’
I do not propose to discuss the interesting question whether the doctrine of mutuality is a heresy which crept into the law unnoticed and unquestioned from a misunderstanding of Coke on Littleton which is concerned only with the mutual relationships there instanced. There is a passage in the opinion of the judges delivered by De Grey CJ in Duchess of Kingston’s Case (1776) 2 Smith’s LC (13th Edn) 644 at 647–648,[1775–1802] All ER Rep 623 at 627, which I think is more important:
‘But in all these cases, the parties to the suits, or at least the parties against whom the evidence was received, were parties to the sentence, and had acquiesced under it; or claimed under those who were parties and had acquiesced.’ (My emphasis.)
So there is ancient authority for the defendants’ proposition of the basis for issue estoppel.
The reality of the trial within a trial is surely that the adversaries were the plaintiffs and the policemen. The question was who of these was lying, not whether the Crown or the Director of Public Prosecutions or the Chief Constables or prosecuting or defending counsel were to be believed. Are the police officers now to be harassed twice for the same cause? That would be grossly unfair. Their careers would again be in jeopardy. There is a tendency to forget the stress and strain on a man, even a policeman, of re-opening such allegations especially when they have already been held to be untrue. The morale of the police force and the confidence of the public in it and in the judicial system is every bit as precious to society as an anxiety to allow a murderer to present his case twice.
Accepting that the plaintiffs were all parties to the previous proceedings and had full and fair opportunity to put their cases, indeed a better opportunity because of the onus of proof, I conclude that in fairness and justice they ought to be estopped from repeating them once more against the Chief Constables, who seem to me to have at least a privity of interest with the police officers. By s 48 of the Police Act 1948 the Chief Constable is made liable for the torts of his constables and is to be treated for all purposes as a joint tortfeasor. In other words, the position would be the same if the officers were sued individually. This conclusion is in line with the American authorities of Eagle, Star and British Dominions Insurance Co v Heller (1927) 140 SE 314 at 316 in the Supreme Court of Appeals of Virginia in which Prentis P used the graphic phrase, ‘He has had his day in court …’; Teitelbaum Furs Inc v Dominion Insurance Co (1962) 375 P 2d 439 in the Supreme Court of California; Breeland v Security Insurance Co of New Haven, Connecticut (1969) 421 F 2d 918 in the United States Court of Appeals, and Grand (ST) Inc v City of New York (1973) 344 NYS 2d 938 in the Court of Appeals, and the test meets the difficulties mentioned by Lord Reid in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2)[1966] 2 All ER 536 at 554,[1967] 1 AC 853 at 917.
It is unnecessary for me to come to a conclusion on the other novel limb of the defendants’ argument on issue estoppel, namely that they are in reality in privity with the Crown. The West Midlands Chief Constable initiated the prosecution for murder and one of his senior officers signed the indictments. The Director of Public Prosecutions took over the prosecution as his agent in accordance with normal procedure and by a constitutional fiction the prosecution was in the name of the Queen (the Crown). It is an attractive proposition that all were in privity with each other in the prosecution process under, as it were, the umbrella of the Crown, especially as four of the plaintiffs allege ‘unconstitutional action of servants of the Government’ to found their claims for exemplary damages. Hunter alleges unconstitutional acts and McIlkenny that they acted in purported performance of their public functions.
Abuse of process
I now come to the second main limb of the defendants’ case: that the actions are an abuse of the process of the court. If this court is the prisoner of precedent and unable to strike out the claims on the ground of issue estoppel, it will be apparent from what I have already said that as matters stand there is in my judgment no answer to the application to strike out as an abuse of process.
It is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rules of res judicata or, here, the requirement of issue estoppel. They are plain and obvious cases, and as I read his judgment Cantley J would have struck out the claims but for the plaintiffs’ desire to call further evidence which was not before Bridge J or the jury.
The test for the admission of fresh evidence in a case such as this is (i) that it was not and could not have been obtained by reasonable diligence, and (ii) that it entirely changes the aspect of the case (see per Earl Cairns LC in Phosphate Sewage Co v Molleson (1879) 4 App Cas 801 at 814) in that it is ‘so material as to make it reasonably probable that the action will succeed’(per Vaughan Williams LJ in Birch v Birch [1902] P 130 at 136–137) and it must be credible, that is ‘well capable of belief in the context of the circumstances as a whole, including the other evidence …’(see R v Beresford (1971) 56 Cr App R 143).
In my judgment it makes no difference here that the plaintiffs are seeking to establish perjury by the police: see Flower v Lloyd (1879) 10 Ch D 327. It is an everyday occurrence for a disappointed litigant to complain that his evidence was disbelieved because of his opponent’s perjury or fraud. The evidence must be both new and material: see Boswell v Coaks (No 2)(1894) 6 R 167.
The so-called fresh evidence falls into two categories: (a) that of prison officers which was known to counsel at the trial. It is said that no competent counsel would have called them at the trial; but that will not do. It is no reason that the evidence might in some respects damage the accused (R v Shields and Patrick [1977] Crim LR 281) and I cannot accept them as credible in the circumstances, especially with admitted assaults while in prison;(b) the evidence of Dr Paul based on the photographs. He never saw the plaintiffs. He is a specialist in forensic medicine and no doubt a man of great experience in his field, but the photographs were available and he or another such expert could have been discovered. It is said by counsel for Walker that it was unreasonable to seek such evidence and that no one could know it was important before it was obtained (the chasing your tail argument). The reason it was not obtained, and counsel for the plaintiffs Power, Callaghan and Hill accepts that with reasonable diligence it could have been made available, is probably that they were relying on Dr Harwood.
The probative value of Dr Paul’s evidence was not attacked before Cantley J. There was only four days’ notice. But it has now been subjected to careful scrutiny. First, he detects injuries in the photograph which even now are not the subject of complaints. Then he establishes that four of the six plaintiffs are clearly exaggerating.
Having considered all the many details now before the court, I conclude that Dr Paul’s evidence is valueless in that no judge would accept it in all the circumstances of this case and in particular in the face of the evidence of those who saw the prisoners at the court and of the rejection of the prisoners’ evidence by Bridge J. In the end it comes to no more than this, that Dr Paul from what he thinks he sees on the photographs agrees with two out of six plaintiffs. The weight of his evidence is not such that it is reasonably probable or even possible that a judge rehearing this case some six years after the events could find in the plaintiffs’ favour.
I would strike out the claims on both grounds.
Appeals allowed. Leave to appeal to the House of Lords refused
