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.