QB-2020-004171 - [2025] EWHC 2773 (KB)

A further tort relied upon is malicious procurement of a search warrant. Reference is made to the summary of the application for the warrant set out above. That was applied for by Mr Muldoon as the applicant, being an officer of HMRC. The authorising officer was his manager Ms Chipperton, a senior investigation officer. The search warrant application was in respect of offences relating to non-payment of VAT of about £727,000.

The relevant principles in relation to full and frank disclosure when applying for a search warrant are as follows:

The necessary elements for the tort of malicious procurement of a search warrant are as follows:

By way of introduction to the tort in the case of Gibbs v Rea [1998] AC 786 at 797, Gault J giving the majority judgment of the Board said:

“That it is an actionable wrong to procure the issue of a search warrant without reasonable cause and with malice has long been recognised though seldom successfully prosecuted: Elsee v. Smith (1822) 2 Chit. 304 , Hope v. Evered (1886) 17 Q.B.D. 338 , 340, Everett v. Ribbands [1952] 2 Q.B. 198 , 205, Reynolds v. Commissioner of Police of the Metropolis [1985] Q.B. 881 , 886. Generally any damage will arise from execution rather than issue of a warrant but there may be special circumstances in which it can be shown that the issue of the warrant will itself cause harm. It is the essential element of malice that distinguishes the cause of action from that of trespass where entry is made without authority or on the authority of a warrant invalid on its face. It is akin to malicious prosecution which is a well-established tort and to the less common tort of maliciously procuring an arrest: Roy v. Prior [1971] A.C. 470 . The true foundation of each is intentional abuse of the processes of the court. Malice in this context has the special meaning common to other torts and covers not only spite and ill-will but also improper motive. In the present context the requirement of improper motive would be satisfied by proof of intent to use the process of the court for granting a warrant for a purpose other than to search in the permitted circumstances.”

An issue has arisen in this case as regards whether a pleading of malice will suffice where the failing is attributable to neglect or inadvertence or bad judgment without necessarily involving bad faith in knowing misuse of a public power. The case of HMRC is to rely on the closing words of Chadwick LJ in Thacker v Crown Prosecution Service CA 16 December 1997 (unrep.):

“It is important to keep in mind that that was a finding of lack of reasonable and probable cause based on assumed negligence or incompetence. It was not a finding that any individual crown prosecutor decided to continue the prosecution in the absence of an honest belief that there was a proper cause to do so. The finding is consistent with the existence of an honest but unreasonable belief. That is a likely conclusion in most cases where the only evidence as to the prosecutor's state of mind is the fact that he or she decided to prosecute on the basis of the facts as known; so that there is no direct evidence on that question which can be put before the jury.

The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution - whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material - cannot, in itself justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail.” (emphasis added)

The Claimants drew the attention of the Court to parts of the judgments in that case of Kennedy and Judge LJJ. Kennedy LJ said:

“… There is no evidence that any member of the CPS ever had any other motive, and although malice is for the jury rather than the judge, it is only to be left to the jury if there is some evidence of it (per Lord Devlin at 779). Mr Denyer submitted that the issue should have been left to the jury because in some cases malice can be inferred when a prosecution is launched or continued without reasonable and probable cause. That, as it seems to me, evolves (sic) some positive evidence of mala fides on the part of the prosecutor, which is wholly absent in this case, and in any event, the reasons I have already given, Mr Denyer’s submission cannot succeed.”

Judge LJ said:

“Before malice can be left to the jury there must be some evidence from which a jury properly applying its mind to the evidence would be entitled to infer it. If there is, the decision is for the jury. Evidence that the defendant lacked any reasonable and probable cause for continuing with the prosecution may of itself provide the necessary basis to enable the jury to consider malice, but this conclusion does not always follow, and it would be strange if it did. The question has to be decided in the light of the evidence in the individual case. In the present case the basis of the judge’s finding that the defendant lacked reasonable and probable cause for continuing with the prosecution suggested not malice by anyone for whom the Crown Prosecution Service could be held responsible, but an intended fault of omission. The judge concluded that there was no evidence of malice and I agree with him.”

The submission of the Claimants was that where it was not apparent whether the public official had been negligent or incompetent, or whether they had been dishonest, that was a matter to be left by a judge to a jury. In an inferential case, it would be for a jury on the facts of the particular case to assess whether the influence should be one of negligence or dishonesty. They relied on the case of Paul v Chief Constable of Humberside [2004] EWCA Civ 308 at para. 44 per Brooke LJ:

“In Gibbs v Rea [1998] AC 786 it was common ground between the majority and the minority of the members of the Judicial Committee of the Privy Council that a claimant may rely on circumstantial evidence in support of his case on malice and the absence of reasonable and probable cause. Where they differed was on the application of this principle to the facts of that case. For the majority, who included Lord Steyn and Lord Hutton, Gault J cited a passage from the judgment of Lord Tenterden CJ in Taylor v Willans 2 B & Ad 845, 847:

The motives of parties can only be ascertained by inference drawn from facts. The want of probable cause is, in some degree, a negative, and the plaintiff can only be called upon to give some …slight evidence of such want…"

Gibbs v Rea turned on the significance of the decision by the defence to call no evidence at the trial, but it is a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters.”

The submission of HMRC was that if there was no positive evidence of malice, there was no issue of fact which needed to be determined and there was no reason for the claim to proceed to a hearing. In Young v Chief Constable of Warwickshire [2022] EWHC 447, Martin Spencer J said that bad faith or reckless indifference must be specifically pleaded and particularised. He said: “It may be possible to infer malice. But if what is pleaded as giving rise to an inference is equally consistent with mistake or negligence, then such a pleading will be insufficient and will be liable to be struck out.” It was submitted that an allegation of malice will not be made out simply because an officer failed to notice an even obvious defect in the investigation, referring to Carter v Chief Constable of Cumbria [2008] EWHC 1072 at para. 69 per Tugendhat J: “To say that the alleged defect in the presenting sides case was so obvious that the officer in question must have recognised it is not in my judgement a sufficient particular in the circumstance of this case.” In McHarg v Chief Constable of Thames Valley Police [2004] EWHC 5 (KB), the same judge at [22] quoted Lloyd LJ (as he then was) who said that “If there are no pieces of evidence that are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury”: see Telnikoff v Matusevich [1991] 1 QB at 102A.

The submission on behalf of the Claimants was that first instance authority to the effect that it was not a matter for the jury if the evidence was no more consistent with negligence or incompetence than with malice that there was no evidence of malice to be put before the jury should not be followed. It was said that since malice is very frequently based on inference, it is for the jury to weigh the evidence for itself and to decide whether the evidence points to negligence or malice.

On analysis, there was no difference between the first instance authorities and the cases from the appellate courts. There was a consistent thread in the cases to the following effect, namely:

It is also to be borne in mind that the context of the older cases was about the province of judge and jury and of what could be left to the jury. The context in which this Court is deciding the issues is a summary judgment/strike out application where there are wider issues of bringing to an end a case where the full evidence is either not yet before the court or where the court is less able to see the full thrust of the parties’ cases with the same vista as will be available at a trial. Nonetheless, at any stage of the action, it is sufficient to say that mere evidence by itself of errors or omissions does not necessarily found a basis for finding malice whether in the tort of misfeasance of public office or malicious prosecution or malicious procurement of a search warrant.

On the other hand, the Claimants submitted that there will be cases which should be allowed to proceed to trial where there is a real prospect that at trial it will be found to be more likely that it was malice. It is to be borne in mind in a case based on malice that cases are frequently inferential and not proven by direct evidence of which one party can give direct evidence. This adds to the sense of caution about rushing to judgment at the strike out stage. This is a theme in the judgment in Paul v Chief Constable of Humberside [2004] EWCA Civ 308 per Brooke LJ at para. 44 as follows:

“In Gibbs v Rea [1998] AC 786 it was common ground between the majority and the minority of the members of the Judicial Committee of the Privy Council that a claimant may rely on circumstantial evidence in support of his case on malice and the absence of reasonable and probable cause. Where they differed was on the application of this principle to the facts of that case. For the majority, who included Lord Steyn and Lord Hutton, Gault J cited a passage from the judgment of Lord Tenterden CJ in Taylor v Willans 2 B & Ad 845, 847:

“The motives of parties can only be ascertained by inference drawn from facts. want of probable cause is, in some degree, a negative, and the plaintiff can only be called upon to give some … slight evidence of such want …”

Gibbs v Rea turned on the significance of the decision by the defence to call no evidence at the trial, but it is a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters.