Case - Toumia v. Evans

LTL 12/3/99 : [1999] Prison LR 153 : Times, April 1, 1999, Court of Appeal - Jonathan Clarke

Even if a judge was entitled of his own motion to strike an appeal out as an abuse of the court's process, it was his duty to ensure that each party had notice of his intention so that they could make submissions prior to any order being made.


Appeal from the order of HH Judge Coombe in Maidstone County Court on 30 March 1998 dismissing the plaintiff's appeal from an order striking out his claim. The plaintiff ('T') was serving a life sentence for murder. He claimed that he was locked in his cell at HM Prison Whitemoor, without food for the whole morning in circumstances in which, but for the activities of the Prison Officers Association ('POA'), he would have been let out both for breakfast and for ordinary activities during the morning. T had issued proceedings in the Peterborough County Court on 11 April 1997. The particulars of claim asserted that "officers in charge of his custody" owed him a duty of care, that they went on strike and he was locked in his cell for the whole morning without food and that as a result he had suffered loss and damage. T was acting in person at that time. The defendant denied that the officers were in charge of his custody or that they owed him the duties alleged. On 2 July the defendant's solicitor attended the hearing of the application before the deputy district judge. T did not attend because the governor would not produce him in the absence of a court order or his paying the escort costs, which he could not afford. In a short reasoned judgment the deputy district judge concluded that prison officers did not owe prisoners a duty of care of the kind alleged. However, the union's solicitor very properly drew other possibilities to his attention, including false imprisonment and misfeasance in public office. As to false imprisonment, the deputy district judge said that T was a serving prisoner, that he was properly confined within his cell, and the governor had approved his continued confinement. As to misfeasance in public office, he concluded that the POA at all times acted under a proper order of the governor or with the permission of the governor. He therefore directed that the actions be struck out. T appealed. It was not clear when the notice of appeal was filed, but apparently the defendant's solicitor received it on 25 July. The appeal was listed for hearing on 28 August but was adjourned to 31 October. The papers showed that T had managed to raise the necessary money, to pay for an escort to attend the hearing of the appeal. In the meantime T was transferred to HM Prison Maidstone in early October. The hearing of 31 October was vacated and the case transferred to the Maidstone County Court. Notice of transfer was given to the parties. The matter came before HH Judge Coombe. He decided not to list the appeal hearing at all. Instead, on 30 March 1998 he made an order of his own motion dismissing the appeal on the grounds that the action was frivolous and disclosed no suitable cause of action and that it would be an abuse of the process of the court to continue further. T received notification of the judge's order on 4 April. On 23 April T wrote to the court giving notice of his intention to appeal. Leave to appeal was given on the express basis that it was arguable that the judge had no jurisdiction to dismiss the appeal on the papers without giving notice to the parties. Once leave to appeal was granted, the defendant offered to submit to an order remitting the matter to the county court. However, T wished his appeal from HH Judge Coombe's order to be considered on its merits. For the purposes of the judgment the Court of Appeal proceeded on the basis that the draft particulars of claim alleged false imprisonment and misfeasance in public office.

HELD: (1) Even if a judge was entitled of his own motion to strike an appeal out as an abuse of the court's process, it was his duty to ensure that each party had notice of his intention, so that they could make submissions prior to any order being made. T was given no such notice. (2) It was at least arguable in the light of dicta in R v Deputy Governor of Parkhurst Prison, ex parte Hague (1991) 3 WLR 340 that a prison officer who deliberately locked a prisoner in his cell contrary to the orders of the governor would be guilty of the tort of false imprisonment. (3) The essence of the tort of misfeasance was the deliberate and dishonest abuse of power. Subject to one point, the draft amended pleading contained sufficient allegations of fact, to make a case of misfeasance in public office arguably sustainable. It would be wrong, therefore, to strike out this pleading on this ground. To do so might be to stultify the development of the law. Dictum of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council (1995) 3 WLR 152 followed. (4) Under either head, the defendant had failed to satisfy the very stringent requirements which would be necessary before the action could be struck out under CCR O.13 r.5(1)(b) or O.18 r.19(1)(b). Three Rivers District Council v Governor & Co of the Bank of England Times, December 10, 1998 followed.
Appeal allowed. Order of the deputy district judge set aside, subject to an application being made for leave to amend the plaintiff's claim.

Richard Hermer instructed by the Pro Bono Unit for the appellant. Jonathan Clarke instructed by Lees Lloyd Whitley for the respondent.
LTL 12/3/99 : Times, April 1, 1999

Document No. AC8500136
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