Full case report
Basuta v Dhemrait
Reference  EWHC 1126 (QB)
Court High Court
Judge Whipple J
Date of Judgment 10 Feb 2017
Malicious prosecution – permission to appeal – extensions of time – Denton principles
A claim by the Respondent to the application Paramjit Singh Basuta (“C”) for malicious prosecution by the Appellant defendant, Mr Tara Singh Dhemrait (“D”) was heard over three days in September 2016 by Mr Recorder Grahame Aldous QC (“the Recorder”). The Recorder gave an ex tempore judgment on the third day of trial in favour of C. D applied to the High Court for permission for an extension of time to appeal the Recorder’s judgment.
C and D were related. C was an engineer who is based in Derby but often worked in London and in 2013, whilst working at Heathrow on a project, he needed weekday accommodation in London. In October of 2013 he moved in with D in the defendant’s flat at 7 Sun Lea Court. The following January, when he was still there, there was a conversation between the parties about payment of rent.
On 13 January the D wrote a letter to C referring to an agreement for payment of rent and giving the C notice to leave the property. That letter was delivered on 17 January 2014 at the property and was signed for by the claimant at 10.30 in the morning. C’s daughter visited the property the following day. On 23 January 2014 there was a further conversation between the parties regarding an allegation by C that D had been entering his room at the property.
D went to the police and made an allegation of assault on him by C. C was arrested, questioned and, having been held for questioning at the police station, subsequently released and charged with assault, and C appeared at the North West London Magistrates’ Court. The prosecution received a body of evidence served on behalf of C, who was the defendant in those Magistrates’ Court proceedings, and an adjournment was sought in order that that evidence could be considered. The CPS discontinued proceedings. C alleged that that prosecution was procured by the defendant maliciously on the basis of an untrue allegation that the defendant knew was untrue, and that he did so not for the purposes of a proper prosecution but maliciously in order to further his own ends and to harm the claimant.
The Recorder found for C and awarded damages comprising out-of-pocket expenses, namely costs of around £29,000 incurred in the course of defending himself in the criminal proceedings, and secondly, general damages of £8,000 for distress and embarrassment. The total award of damages was nearly £37,000. He also ordered D to pay C’s costs of the trial which he assessed. C wished to appeal but did not lodge notice to do so until 20 December 2016, two months out of time. The application for an extension of time was refused on the papers by Foskett J by order dated 26 January 2017. He did not consider that the appeal had a reasonable prospect of success and would have refused permission, and for that reason he also refused the extension of time but he invited an oral renewal. D accepted that invitation and sought to renew the application for an extension of time.
It was agreed that the application for an extension of time must be treated as an application for relief from sanctions applying the authority of R (Hysaj) v Secretary of State for the Home Department  EWCA Civ 1633, where Moore-Bick LJ held that the principles to be derived from Mitchell and Denton do apply to applications for an extension of time.
It was common ground that the default of two months in filing the notice of appeal was serious and significant, thus that the first stage in Denton was passed and only the remaining two stages fell to be considered.
In relation to the second Denton stage C’s solicitor gave evidence in relation to the reasons for the delay. C had been represented by counsel at trial, but although the possibility of an appeal was discussed between lawyer and client the moment judgment was given and was on the agenda at a very early stage, C did not invite the Recorder to consider the issue of permission once the trial was over.
After the trial the parties agreed to share the cost of transcripts and in the event the transcripts of the judgment arrived with C’s solicitor on 17 October 2016. At this time, C’s solicitor was instructed to instruct fresh counsel. He declined to give the reason for that, stating only that this is covered by legal professional privilege. The deadline for lodging the notice of appeal then expired. He then did instruct fresh counsel and the notice of appeal was lodged on 20 December 2016.
In relation to the third stage one conclusion reached by the Recorder was challenged: it was argued by D that he erred in law in concluding that C was prosecuted by D, in that he failed entirely to analyse whether it was virtually impossible for the police and CPS to exercise a discretion or judgment in deciding to prosecute independently of the appellant, this was a particularly glaring omission given that it is a well-established part of the ‘prosecutor’ test, and an essential question to ask given that prima facie in modern times it is taken that in a prosecution by the state the prosecutors in law are the police and/or the CPS.
C submitted that the Recorder understood perfectly well what the test in law was and that nothing turns on the fact that he did not use the words “virtually impossible” in terms. Further, the Judge was invited to conclude that the Recorder made impeccable findings of fact which reflected the legal test, and that the conclusion that D had prosecuted C is unassailable.
(1) Why did the default occur and had a good reason for it has been shown?
(2) Whether, evaluating all the circumstances of the case, time should have been extended, having regard also to the merits of the appeal.
Refusing to grant an extension of time:
(1) No good reason was made out for the delay in lodging the notice of appeal: C had a solicitor on the record acting for him, who could have put a notice of appeal into court within time, and there was no explanation of why he did not do so; C was present at trial, as was his barrister and his solicitor, he knew the reasons why he had lost because those reasons were given to him by the Recorder in his ex tempore judgment, so there was no pressing need to obtain a transcript of the judgment before deciding whether to appeal; in any event, the transcript of the judgment was obtained on 17 October 2016, which was still within time to appeal; no explanation was given as to why different counsel was appointed and the Judge was therefore unable to count that factor in C’s favour; after fresh counsel was instructed, it was still open to C to lodge a holding appeal while counsel was brought up to speed; and there were further unexplained delays after fresh counsel was instructed.
(2) There was no need for the Judge to go on to stage three of the Denton analysis given her conclusions on stage two, but she did so to record submissions and in case she was wrong in her analysis. While the language of “virtually impossible” came from the judgment of Brooke LJ in Mahon v Rahm (No 2)  1 WLR 2150 at paragraph 269, it was clear that the language of “virtual impossibility” is not universally used in the case law, and that alternative formulations have been used. There was no particular magic in the words “virtually impossible”. The absence of those words from the Recorder’s judgment was not an error in and of itself.
The Recorder held in relation to the “prosecutor test” that he was compelled to consider the overall factual background about what actually happened and then against that factual background to consider each of the strands giving rise to liability for malicious prosecution separately, and said that he found the language of abuse of process helpful in trying to pinpoint what the law is looking for in terms of activities by the complainant that cross the line from a simple complaint to the procuring of a malicious prosecution.
The Recorder was plainly aware of the case law, he characterised the legal test adequately (to put it at its lowest) and he made findings in accordance with that test which were open to him and which are properly reasoned. This was not a case where the merits of the appeal were obviously very strong, if anything, the merits of the appeal were very weak and, as such, should, weigh against D.
All the circumstances of the case including the need for litigation to be conducted efficiently and at proportionate cost and the need for the rules prescribing time limits to be complied with led to the same conclusion.
Claims for malicious prosecution against individuals are unusual. This is in part because of the difficulty in satisfying the “prosecutor test”, of showing that an individual responsible for a complaint to the police and ensuing prosecution is liable in law as the prosecutor. This judgment contains a valuable survey of the different ways in which that test has been expressed, and approves the first instance judge’s approach, in which he assessed the test by reference to the evidence relating to the overall factual background in the claim.
TT Law for the Claimant/Respondent
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