IN THE SUPREME COURT OF JUDICATURE QBENI 97/0376/E
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Hidden)
Royal Courts of Justice
Thursday, 27th November 1997
LORD JUSTICE HIRST
LORD JUSTICE SWINTON THOMAS
SIR BRIAN NEILL
DAVID ANTHONY DANIELS
(Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A
2HD. Telephone No: 0171- 421 4040. Shorthand Writers to the Court.)
MISS C. BOOTH Q.C. and MR. W. BEARD (instructed by the Smith Llewelyn Partnership,
Swansea) appeared on behalf of the Appellant/Plaintiff.
MR. C. VOSPER (instructed by Messrs Douglas-Jones & Mercer, Swansea) appeared on behalf of the
(As approved by the Court)
SIR BRIAN NEILL
This is an appeal by Mr David Anthony Daniels from the Order of Tucker J. dated 19 October
l996 dismissing Mr Daniels’ appeal against the Order of Mr Deputy District Judge Williams made on
15 February l995 striking out his claim for damages against Mrs Griffiths, the Defendant. Tucker J.
refused leave to appeal against his Order, holding that the claim had been rightly struck out as an abuse
of the process of the court but leave to appeal was granted by Brooke L.J. on 27 February l997. I shall
call the parties the “Plaintiff” and the “Defendant”.
In l983 the Plaintiff pleaded guilty to a charge of rape and was sentenced to life imprisonment.
On 21 June l994 the Discretionary Lifer Panel of the Parole Board considered an application by the
Plaintiff for release on parole but this application was refused. He remains in custody.
THE HISTORY OF THE ACTION
On 17 February l994 the Plaintiff issued his Writ in these proceedings. The Writ was
subsequently amended on 9 June l994 and is now in these terms:
“The Plaintiff’s claim is for damages for slander published by the Defendant to
police officers of the South Wales Constabulary between 16 September l992 and 2
The amended Statement of Claim was served with the amended Writ. I should refer to certain
paragraphs in the amended Statement of Claim but first I should draw attention to the fact that, if this
action continues, the Plaintiff will seek to re-amend his claim to include a claim for damages for libel.
In paragraph 2 of the amended Statement of Claim the Plaintiff pleaded that the Defendant was
formerly engaged in a personal relationship with the Plaintiff. The amended pleading continued:
“3. Between the 16th September l992 and the 2nd October l992 the Defendant spoke
and published of and concerning the Plaintiff to police officers of the South Wales
Constabulary and others, defamatory words to the following effect:
a) that there has never been any form of relationship between the Plaintiff and
b) that the Plaintiff is fixated with the Defendant;
c) that the Defendant has concern for her safety should the Plaintiff be released
4. As the Defendant well knew, the aforesaid police officers would report her
aforesaid words to officers of the prison authorities, and the Probation Service, and the
Defendant intended that her words should be published to officers of the aforesaid bodies.
5. The said words in their natural meaning and/or inferential meaning meant and
were understood to mean that the Plaintiff was suffering from a mental illness which
resulted in him being dangerous.
6. Further or alternatively, the said words by way of innuendo, the Defendant meant
and was understood to mean that the Plaintiff was unfit to be considered for parole
because he was unstable and dangerous.
Particulars pursuant to RSC O.82 rule 3(1)
(i) The Plaintiff repeats paragraph 1 hereof.
(ii) The Defendant knew enquiries were being made to assess the Plaintiff’s
suitability for parole.
(iii) The Defendant knew that the extent of her relationship with the
Plaintiff would be considered by the Parole Authorities.
(iv) By denying her relationship with the Plaintiff the Defendant meant and
her words were understood to mean that the Defendant was unstable and
7. By reason of the publication of the said words, the Plaintiff has been greatly
injured in his character and reputation and has been brought into public scandal, odium
and contempt and has suffered damage.
Particulars of Special Damage.
Since the 31st January l993, the Defendant has been refused parole and
remains in custody. He has consequently lost social security benefits at £45.70 per
The Defence was served on 17 August l994. Here again, however, if the action continues, the
Defendant wishes to amend her defence and at the hearing of the appeal reference was made to the
pleading in its proposed amended form. Paragraph 3 of the proposed amended defence contains an
admission that during l992 the Defendant spoke concerning the Plaintiff to police officers at South
Wales Constabulary [words] to the effect that there had never been any form of relationship between
the Plaintiff and the Defendant. Paragraph 4 of this pleading contains a plea of justification, which
extends to the words alleged in paragraph 3 of the amended Statement of Claim if these words are
found to have been spoken. I should also read paragraph 8 of the proposed draft:
“In so far as the Defendant spoke concerning the Plaintiff to police officers of the
South Wales Constabulary, (and whether the said officers were making enquiries for
the purpose of assessing the Plaintiff’s suitability for parole or were investigating
the Plaintiff’s conduct with respect to the Defendant) the occasion and each
occasion of such alleged publication was an occasion of qualified privilege”.
On 20 December l994, the Defendant issued a Summons to strike out the Writ and the
Statement of Claim. The first paragraph of the Summons was as follows:
“That the endorsement on the Writ and the re-amended Statement of Claim herein
be struck out on the ground that they are scandalous, frivolous or vexatious or
otherwise an abuse of the process of the court pursuant to Order 18, R.19 of the
Rules of the Supreme Court and/or of the Court’s inherent jurisdiction.”
On 15 February l995 the Deputy District Judge made his Order striking out the Writ and the
Statement of Claim.
The Plaintiff appealed.
The appeal came first before Jowitt J. He adjourned the appeal to enable the Plaintiff to file
an Affidavit exhibiting a copy of the decision of the Parole Board. He also invited the Treasury
Solicitor to instruct Counsel to appear for the Parole Board as amicus curiae. The Treasury Solicitor
declined this invitation.
The matter came back for hearing before Tucker J. on 18 October l996.
The Judge’s Decision
Tucker J. upheld the judgment of the District Judge. As I understand his judgment, he gave
First, he held that the proceedings were an abuse of the process of the court because they had
been instituted for a collateral purpose. He explained this reason as follows (J.4E):
“I deem the real purpose of this action to be an attempt to persuade the Parole Board
that it reached a wrong decision based on inaccurate and untruthful evidence, and it
should review and reverse that decision. It is perfectly apparent from the decision of
the Panel, a copy of which has now been obtained, that its decision was based on the
Plaintiff’s own conduct, no doubt based on the contents of his own letters. I now have
before me that decision, and so far as this application is concerned, the relevant part is
contained in paragraph 4 of the Board’s letter dated 27th June l994. The material part
is in these terms:
‘Whatever the truth about Mrs Griffiths and yourself, the Panel were of the view
that your pre-occupation with her is now pathological. The Panel believed that she
would be at great risk from you if you were to be released’
That is the decision the Board reached, and that in my opinion is what, by a roundabout
route, this Plaintiff is seeking to impugn. Albeit there is no express reference to such a
review in the amended Statement of Claim, that is in my view nevertheless its real
The second reason given by the Judge for his finding that the action was an abuse of the
process of the court was that in his view the action was “also designed and intended to harass and
embarrass the Defendant and to cause her further expense”.
His third reason was that the action had in the Judge’s opinion “no prospect of success.” He
added “It is, I say bluntly, a hopeless action.”
The Plaintiff has now appealed to this court.
I propose to consider the appeal under two main headings. First, whether the appeal should be
struck out on one or more of the grounds given by the Judge. Second, whether the claim should be
struck out on grounds of public policy.
Whether the claim should be struck out for any of the reasons given by the Judge.
It will be convenient to consider first the submissions put forward on behalf of the Defendant
in support of the Judge’s decision. Counsel developed his argument on the following lines:
1) The court has power both under rules of court and under its inherent
jurisdiction to strike out proceedings which amount to an abuse of process.
2) In considering an application to strike out, the court is prepared to look at
affidavit evidence and to look at the purpose behind the pleadings.
3) An example of such an abuse of process is provided by a case where a
Plaintiff issues a Writ and then maintains the action in being, neither
desiring nor intending to bring it to trial, but merely hoping to place a gag upon his
critics: see Wallersteiner v Moir [l974] 1 WLR 991 at 1029 per Scarman
L.J. It may be noted that this type of abuse of process was considered by
Lord Woolf in the House of Lords in Grovit v Doctor [l997] 1 WLR 640 at 647.
4) That an action will be struck out not only if it is conducted in a manner which
amounts to an abuse of the process of the court, but also if it is bought “for some
ulterior or collateral purpose” and not bona fide for the purpose of obtaining relief:
see Lonrho Plc v Fayed (No.5) [l993] 1 WLR 1489 at 1502 per Stuart Smith L.J.
5) That an action will also be struck out if the Defendant “can demonstrate
shortly and conclusively that the Plaintiff's claim is bound to fail”: see Lonrho Plc v
Fayed (No.2) [l992] 1 WLR 1 at 5 per Millett J.
6) That the evidence in this case demonstrated that the Plaintiff’s purpose in
bringing the proceedings was to bring pressure upon the Parole Board and thereby to
secure his release from a sentence of imprisonment. His conduct in bringing the
proceedings was a further manifestation of his fixation with the Defendant.
Counsel drew our attention to a number of letters written by the Plaintiff to the
Defendant, particularly those written by him in l992, and to the fact that the Plaintiff
had taken steps to involve the Defendant both in court proceedings concerning his
daughter and also in an action he had commenced against a prison doctor.
7) That it was not suggested that there had ever been any real physical contact
between the Plaintiff and the Defendant. The only issue of fact was whether the
Defendant had entertained feelings of affection towards the Plaintiff which she had
then tried to conceal and later to deny.
8) The Plaintiff’s chances of success were minimal and it was to be remembered
that the Defendant would be unable to obtain legal aid to assist her in defending the
action. The proceedings, as the Judge rightly held, were intended to harass and
I propose to deal with these submissions and the Judge’s reasons compendiously.
It is certainly true that the Court has power to strike out proceedings which are being
conducted in a manner which amounts to an abuse of process, or which have been bought for an
improper purpose and not in order to obtain some remedy from the court. It is also true that in an
exceptional case an action may be struck out if it can be demonstrated conclusively that it is bound to
fail. But this power to strike out should be exercised with the greatest care.
In the present case, however, as Counsel for the Plaintiff made clear, his claim that he had a
personal relationship with the Defendant has been unwavering. It is his case that at one time the
Defendant had strong feelings of affection towards him which she has since sought to deny. The
authorities, he claims, treat him as though he had made up a completely fictitious account of the
relationship between himself and the Defendant, and, he contends, unless he can establish the true
position by means of these proceedings, he has no prospect of correcting this misconception and
therefore no realistic prospect of obtaining parole.
The Plaintiff’s action faces formidable difficulties, but I cannot say that the Defendant has
demonstrated that it is bound to fail. Nor in my view would it be right to reject as unfounded the
Plaintiff’s assertion that he has brought these proceedings to establish the truth and to clear his name.
There is an issue to be tried and I am quite satisfied that the issue cannot be resolved by means of
affidavit evidence alone. Furthermore, it is to be noted that the writ was issued several months before
the parole board reached its conclusion in June l994. Accordingly, with all due respect to the Judge,
the action cannot have been brought in order to persuade the Parole Board that it had reached a wrong
It follows therefore that I would not strike this claim out on any of the grounds relied upon by
the Judge, or included in the submissions of counsel for the defendant.
Whether the claim should be struck out on grounds of public policy
Shortly before the date of the hearing in this court, Counsel were informed that, in addition to
argument directed to the matters which were canvassed in the court below, the court would wish to
hear argument as to whether the action should be struck out on grounds of public policy. For my part
I am grateful to both Counsel for the careful arguments which they prepared at short notice on this
further aspect of the case.
Here again it will be convenient to consider first the submissions put forward on behalf of the
Mr Vosper’s primary submission was that the statements made by the Defendant to the police
were made in connection with possible criminal proceedings against the Plaintiff, and were therefore
entitled to immunity on the principle recognised and explained by the Court of Appeal in Taylor v The
Director of the Serious Fraud Office (22 July l997) (CA Transcript 97 - 1327). The immunity from
process extends not only to what is said by a witness in court but also to statements made by witnesses
and potential witnesses at an earlier stage when enquiries are being made as to what evidence they can
give. The principle was stated in Watson v McEwan [l905] AC 480 by the Earl of Halsbury L.C. at
487 as follows:
“It is very obvious that the public policy which renders the protection of witnesses
necessary for the administration of justice must as a necessary consequence involve
that which is a step towards and is part of the administration of justice - namely, the
preliminary examination of witnesses to find out what they can prove.”
Counsel also referred us to the following propositions set out in the judgment of Kennedy L.J.
in Taylor (Transcript 21A):
“1. Whatever the form of action it will be barred if it is founded upon what a
witness has said in the witness box, or upon what has been said or done in preparing
the evidence for a trial. (Watson v McEwan; Marrinan v Vibart [l963] 1QB 528.)
2. This immunity is not, like absolute privilege, limited to actions alleging
defamation. In criminal cases it applies to prevent any form of parasitic litigation
(other than an action like malicious prosecution which relates directly to criminal
proceedings) where the statement or conduct relied upon is such that it can fairly be
said to be part of the process of investigating a crime or a possible crime with a
view to a prosecution or possible prosecution.
( Marrinan v. Vibart; Evans v London Hospital [l981] 1 WLR 184; X v
Bedfordshire County Council [l995] 2 AC 633 and Silcott v The Metropolitan
Police Commissioner (24 May l996) (unreported)”.
Counsel further submitted that any further publication of the statements to the prison
authorities or to the Parole Board was incidental to the primary publication to the police and was also
entitled to immunity.
Counsel submitted in the alternative that even if some of the publications were made to the
police otherwise than in connection with possible criminal proceedings, and were made for the
purpose of providing information to the Parole Board, such communications too should be entitled to
immunity on the ground of public policy. There was no satisfactory reason for drawing a boundary
between the sentencing functions of the criminal court and the work of the Parole Board. Both were
engaged in the same sentencing process. Under the modern practice in a criminal court a victim’s
statement is obtained for the purposes of sentence and such a statement would clearly be immune from
process. Similarly, a later statement made by a victim for consideration by the Parole Board would
also be immune. Though the Defendant in this case was not a “victim” in a technical sense,
information supplied by her to the Parole Board for the purpose of their deliberations should be
entitled to immunity on grounds of public policy.
I propose to deal first with Mr Vosper’s alternative submission.
At first sight there is some attraction in the proposition that confidential communications to the
Parole Board should be protected by absolute privilege. I have come to the firm conclusion, however,
that to extend the immunity which attaches to court proceedings to communications to the Parole
Board would be unwarranted.
The Parole Board was originally constituted by the Criminal Justice Act l967. At the material
time between 1992 and l994 the duties of the Board were those set out in the Criminal Justice Act
l991. It may be noted that prospectively, the functions of the Board will be those conferred by Part II
of the Crime (Sentences) Act l997.
The Parole Board is a body corporate (Criminal Justice Act l991, Section 32), and its status
and capacity are set out in Schedule 5 to the l991 Act. Paragraph 1(1) of Schedule 5 is in these terms:
“The Board shall not be regarded as the servant or agent of the Crown or as enjoying
any status, immunity or privilege of the Crown; and the Board’s property shall not
be regarded as property of, or held on behalf of, the Crown.”
It seems to me quite clear from a consideration of the history of the Parole Board and its
present constitution and functions, that its proceedings cannot be regarded as part of the proceedings of
court of law. The special immunity which attaches to the proceedings of courts of law would
therefore be inappropriate. As at present advised, I can see no answer to the argument that
communications to the Parole Board would be protected by qualified privilege, but I would not extend
this privilege so as to make it absolute.
I return therefore to Mr Vosper’s primary submission.
In order to consider this argument, it is necessary to examine such evidence as there is which
relates to the statements made by the Defendant to the police.
In paragraph 13 of her affidavit sworn on 14 November l994, the Defendant stated that she first
made contact with the police at about the end of l988 when she heard a news report which made her
concerned that the Plaintiff’s release might be imminent. At that time she handed some
correspondence which she had received from the Plaintiff to a police officer.
In paragraph 18 of this affidavit she referred to two telephone calls which she received on the
evening of 22 June l992 which she reported to the police at Clydach. In paragraph 19 she continued:
“On 3rd August l992 I provided a detailed statement to the police making it clear
that I had never been involved in a romantic relationship with the Plaintiff. The
constant harassment was affecting the health and happiness of my family. My
father was quite ill at the time and the constant worry was taking its toll.”
In the following paragraph she referred to letters which she received between August l992 and
December l992 which she reported to the police. The police eventually suggested that she should
contact her MP or a solicitor.
In paragraph 26 the Defendant summarised the matter as follows:
“I have sought to show by this affidavit the extent to which I have been pestered
over the years by the Plaintiff and in desperation I turned to the police for assistance.
I have admitted in my defence that I told the police there had been no relationship
between the Plaintiff and myself. I have never encouraged the Plaintiff in any way.
The complaints I made to the police were not made falsely nor maliciously. I
simply want the Plaintiff to leave me alone.”
Further evidence as to the Defendant’s statements to the police in l992 is contained in a letter
dated 2 October l992 from a Chief Inspector in the South Wales Constabulary at the Divisional Police
Headquarters at Swansea and a letter dated 28th January l993 from the Divisional Commander of the
The letter dated 2 October l992 was sent to the Plaintiff’s then solicitors and was in these
“I refer to your letter of 16th September l992 and our recent telephone
I would confirm that Mrs Griffiths has been spoken to by the police and has
unequivocally stated that she does not wish to be involved in any way with your
client. She re-stated that there has never been any form of relationship between her
and Mr Daniels and that the continuing contact by him, solicitors acting for him and
the police, is causing considerable distress to her and her family. She also voiced
serious concern about Mr Daniels should he be released, when he appears to have
what she says is some form of fixation about her.
Mrs Griffiths has been advised to contact a solicitor to act on her behalf in this
matter. It would also be fair to point out that she has made certain complaints to
the police and these have been forwarded to Leicester Constabulary for their
I trust this information will be of assistance to you.”
The later letter dated 28 January l993 was sent to Mr Peter Hain MP. It was in these terms:
“I refer to your letter dated 22nd January l993 concerning [Mrs Griffiths]. In
August l992 Mrs Griffiths contacted the police expressing her concern at the
persistent contact Daniels was making from HM Prison Gartree by both telephone
and letter. A comprehensive witness statement was obtained from her and that,
together with a full covering report and copies of the correspondence received by
Mrs Griffiths was forwarded to the Leicestershire Constabulary for their attention
and for any action they deemed necessary.
You may be aware that the contents of the letter and telephone calls basically
request Mrs Griffiths to acknowledge an alleged relationship between them in order
to support a future parole application. After careful consideration, there was
nothing in the correspondence which formed the basis of any criminal proceedings
and the Leicestershire Constabulary dealt with the matter accordingly.
Subsequently, a letter was received from Detective Sergeant Looker, the
Leicestershire Constabulary Prison Liaison Officer. As a result of that
communication a formal letter was forwarded to the Governor of H.M. Prison,
Gartree. A copy of that letter, the contents of which are self explanatory, is
enclosed for your information. Also enclosed is a report received from the
Governor, Mr Parry. You will no doubt recognise that the police powers in this
matter are limited and the resolution appears to lie within the prison system.
Mrs Griffiths has, on many occasions, been advised to change her telephone number
but, to date, has not acted upon that advice.
I certainly share the concern expressed by Mrs Griffiths of the consequences should
Daniels be returned to society sometime in the future and, to that end, a request has
been made for the police to be informed at the earliest opportunity of any future
decision concerning Daniels’ parole.
I trust this letter, together with enclosures, will assist you in any further action you
may wish to take in this matter.
If I can be of further assistance, please do not hesitate to contact me through this
It is clear from this evidence that in August l992 the Defendant made a statement to the police
to the effect that she was being harassed by the Plaintiff and that a witness statement was taken from
her. The contents of that witness statement and the details of any previous discussions leading to the
taking of the witness statement would appear to be covered by the rule as to immunity. The letter of 2
October l992, however, suggests that the communications between the Defendant and the police were
not confined to her complaints about the Defendant. Indeed in the second paragraph of that letter the
approaches by the police were also, it seems, a matter of complaint.
It may be that when the matter is fully investigated it will be found that all the relevant
statements made by the Defendant to the police related to a possible offence by the Plaintiff. On the
other hand it may be established that there were statements made by her in two separate contexts, some
statements being directed to her complaints about the Plaintiff and some being in answer to enquiries
by the police concerning the Plaintiff’s application for parole.
At this stage even the documentary evidence is incomplete. In my judgment it would be
wrong to reach a final conclusion as to the precise context in which the relevant statements were made.
In these circumstances I do not think it would be right to strike out the Plaintiff’s claim on the
grounds of public policy. The facts are not sufficiently clear to justify such a course being taken. I
would, however, repeat the warning which Hirst L.J. gave at the conclusion of the oral hearing that if
the action is to proceed to trial, the form of the statement of claim will require very careful
I would allow the appeal.
SWINTON THOMAS L.J.
I also agree.
Order: Appeal allowed with costs; amended statement of claim to be served within 21 days.
(Order not part of the judgment of the court)