Triable-Issue Threshold in Police Misfeasance Claims: Alleged Falsification and Failure to Seek Witness Evidence Makes Summary Judgment Inappropriate

1. Introduction

Van Buuren v Cambridgeshire Constabulary & Ors [2026] EWCA Civ 391 is a Court of Appeal decision arising from a serious cycling accident in 2013 in Glebe Way, Histon (near Cambridge). The claimant, Mr van Buuren, suffered significant injuries and had no memory of the accident. Police attended shortly after, and a collision report concluded he had simply fallen off his bicycle and that no one had witnessed the incident.

Years later, Mr van Buuren located a bystander (“Mrs C”) who asserted that (i) she had witnessed the accident, (ii) a car “clipped” Mr van Buuren, (iii) she told the attending officers this at the time (including after returning to the scene), and (iv) the police did not obtain a witness statement from her. Mr van Buuren alleged that the police (and later the complaints process) concealed a vehicle-cyclist collision, including by falsifying records, and that the continued failure to pursue witnesses supported an inference of malice.

The defendants included the Cambridgeshire Constabulary (first defendant), Hertfordshire Constabulary (second), Bedfordshire Constabulary (third) and the IOPC (fourth). The key legal claim was misfeasance in public office, alongside associated issues of limitation and causation (including alleged psychiatric injury).

The appeal ultimately narrowed: by concessions made during the hearing, the Court of Appeal reinstated (by consent) claims that had been struck out at first instance, leaving for decision the claimant’s applications for summary judgment and to strike out the defence of the three constabularies.

2. Summary of the Judgment

The Court of Appeal held that, despite the troubling factual matrix and the defendants’ inability at the hearing to provide satisfactory explanations for key investigative omissions, it was not appropriate to:

  • grant Mr van Buuren summary judgment against the defendants; or
  • strike out the defence filed by the three constabularies.

The Court emphasised that the material before it disclosed triable issues and that it was still possible the defendants could advance a viable defence once disclosure and witness evidence were obtained. The Court noted the claimant’s arguments about the long delay (over 13 years) and the alleged impossibility of a fair trial, but held it was impossible at that stage to conclude that a fair trial could not take place.

Procedurally, the Court directed that the litigation be expedited and brought before a High Court Judge for directions within 28 days, expressing a wish for trial (if possible) before the end of 2026.

3. Analysis

3.1 Precedents Cited

Three Rivers District Council v Governor and Company of The Bank of England [2003] 2 AC 1

The central authority cited was Three Rivers District Council v Governor and Company of The Bank of England [2003] 2 AC 1, referenced for the elements of misfeasance in public office, particularly the malice requirement and its two recognised forms:

  • Targeted malice: intention to harm the claimant specifically.
  • Untargeted malice: acting knowingly beyond power (or without power) and with awareness that harm is likely to be caused to a class of persons to which the claimant belongs.

The Court’s reasoning did not purport to reformulate Three Rivers. Instead, it applied the Three Rivers framework to assess whether the pleaded allegations—particularly “deliberate falsification” and a “cover-up”—were capable of meeting the malice threshold and whether, at an interlocutory stage, the defendants could be said to have “no real prospect” of defending. The Court’s refusal to summarily decide malice reflects the fact-sensitive nature of Three Rivers malice, typically unsuitable for determination without disclosure and tested evidence.

3.2 Legal Reasoning

(a) The Court’s approach to summary judgment and strike-out in a fact-heavy public law tort

The Court treated the applications as turning on whether the defendants’ case was so untenable that it could be disposed of without a trial. It held it could not. Even where the claimant’s criticisms were powerful (including the “exiguous” defence and absence of explanation for not seeking witness accounts), the Court identified at least three core areas requiring evidence:

  • Limitation and section 33 discretion: whether it would be equitable to disapply the personal injury limitation period, requiring evidence about delay and prejudice on both sides.
  • Malice / improper motive: whether investigative failures and the state of the documentation (including an allegedly police-written, unsigned statement attributed to “Mr D”) amounted to deliberate falsification and concealment (and thus untargeted malice), or whether there was an innocent explanation.
  • Causation and damage: whether the alleged psychiatric harm was caused by any established misfeasance (with timing and medical evidence potentially critical).

(b) Why the collision report could not “answer itself”

A notable feature of the judgment is the Court’s rejection of the notion that the collision report’s statement that Mrs C “did not witness the accident” could, without more, defeat the claimant’s case. The Court highlighted why that was not a complete answer at the summary stage:

  • Constable A appeared to rely primarily on “Mr D”, the driver immediately behind the cyclist and a “prime suspect” if there had been a collision;
  • Mrs C’s later account was that she told police the car “clipped” the cyclist;
  • the statement attributed to “Mr D” was unsigned and appeared (on the claimant’s evidence) to be in handwriting similar to Constable A’s, giving rise to obvious suspicion.

These points did not prove misfeasance, but they created a factual landscape in which a trial—after disclosure and witness evidence—was the proper forum for findings.

(c) Institutional defendants and “failure to investigate the failure”

The judgment is particularly critical (in tone, though not dispositively in law) of how the complaint and appeal processes did not lead to obtaining key witness evidence, even after Mr van Buuren’s complaint expressly alleged “failing to interview witnesses”. The Court doubted that it necessarily excused other defendants that they “could not have known” what Mrs C would say, because the complaint itself put witness-enquiry at the centre of the issue.

Importantly, however, the Court did not convert those concerns into a summary determination. It treated them as part of the evidential matrix that strengthens the case for a full trial rather than pre-trial disposal.

(d) Fair trial and delay

Mr van Buuren argued that the passage of 13 years made a fair trial impossible. The Court accepted the force of that submission but held it was premature to conclude that fairness was unattainable. It stressed:

  • unknowns about Constable A’s response and other evidence;
  • lack of disclosure and incomplete documentary production;
  • the trial judge’s ability to manage risks of fading memories.

The Court’s chosen remedy was expedition and intensive case management (directions before a High Court Judge within 28 days), rather than termination of the defence.

3.3 Impact

(a) Practical guidance on interlocutory disposal in misfeasance claims

The decision reinforces that allegations of police falsification, cover-up, and bad-faith investigative omission will rarely be suitable for summary adjudication where:

  • the case turns on motive (malice) and contested inferences;
  • disclosure has not occurred; and
  • key witnesses have not been heard.

It also implicitly warns defendants that a bare reliance on internal reports and redacted documentation may be insufficient to secure early disposal, particularly where those documents themselves are part of the alleged wrongdoing.

(b) Significance for police complaints and oversight processes

The Court’s closing remarks underscore a public-law value: maintaining confidence in police and complaints systems requires that serious allegations are not “ignored” or “swept under the carpet”. While not establishing a new duty of investigation, the judgment will likely be cited to support:

  • robust disclosure and witness inquiry where a complaint is specifically about failure to interview witnesses;
  • judicial scepticism of conclusory internal documentation offered as a substitute for evidential enquiry; and
  • expedited directions where long delay threatens evidential integrity.

(c) Litigation conduct and pleadings

The Court signalled a pragmatic approach to pleadings in information-asymmetric cases (especially for litigants in person), noting that disclosure may enable proper particularisation of “who knew what, and when”. This may influence future case management where institutional defendants control key information: courts may be more willing to allow claims to proceed to disclosure before insisting on perfect particularity.

4. Complex Concepts Simplified

Misfeasance in public office

A tort (civil wrong) committed by a public officer who abuses public power in bad faith, causing loss. It is not enough that the officer acted negligently; the claimant must prove a form of malice (bad faith) and causation of damage.

Targeted vs untargeted malice

  • Targeted malice: the officer acts to harm this claimant.
  • Untargeted malice: the officer knowingly acts unlawfully or without power, understanding it will likely harm a group/class (and the claimant is within that class).

Summary judgment

A procedure allowing the court to decide a claim without trial where the other side has no real prospect of success and there is no compelling reason for a trial. It is not a mini-trial: disputed facts, credibility, and motive generally point away from summary judgment.

Strike out of a defence

The court can remove (“strike out”) a statement of case if it discloses no reasonable grounds, is an abuse of process, or otherwise cannot stand. The Court here found the defence “exiguous” but not so improper or hopeless as to justify strike out before disclosure and amendment.

Limitation and section 33 of the Limitation Act 1980

Personal injury claims generally have a three-year limit. Section 33 allows the court to disapply that limit if it is equitable, balancing prejudice to claimant and defendant and examining reasons for delay. This is usually evidence-driven and rarely suitable for determination in a vacuum.

5. Conclusion

The Court of Appeal’s decision is procedurally important: it demonstrates judicial reluctance to grant summary judgment or strike out a defence in misfeasance in public office claims where the case turns on disputed inferences about malice, incomplete disclosure, and contested documentary authenticity.

While expressing concern about the investigative and complaints handling narrative—and emphasising public confidence considerations—the Court held that the proper course was a speedy, well-managed trial rather than pre-trial final disposal. The judgment thereby underscores a core principle in complex public authority litigation: where credibility, motive, and institutional records are in issue, disclosure and tested evidence are commonly prerequisites to just determination.