Carter & Ors v The Chief Constable of the Cumbria Police

Factual and Procedural Background

In 2000, nine claimants, mostly serving police officers of the Cumbria Constabulary at Headquarters CID within the Special Branch or Force Crime Squad, faced charges under the Police (Conduct) Regulations 1999 ("PCR"). These charges arose from an internal investigation known as Operation Pool, concerning the alleged private use of police vehicles and expense claims. Notices of investigation under PCR Regulation 9 were served on the claimants between 2000 and 2001, followed by referral to misconduct hearings under Regulation 11. The Crown Prosecution Service advised against criminal prosecution in 2001. A misconduct hearing began in April 2003, involving 104 charges primarily related to vehicle misuse and expenses claims. The panel ultimately dismissed the remaining charges in June 2003, expressing concerns about evidential clarity and procedural fairness.

The claimants then brought an action against their Chief Constable (Defendant), alleging misfeasance in public office by certain named officers for whose conduct the Defendant is vicariously liable. The claimants assert that the misconduct proceedings were unlawfully brought, specifically challenging the continuation of investigations and referrals to hearings without sufficient evidence. The Defendant applied to strike out the claim and for summary judgment.

The procedural history includes the issuance of the Claim Form in May 2006, initial pleadings including claims in negligence and misfeasance, abandonment of negligence claims, amended pleadings in late 2007 and early 2008, and subsequent applications to strike out and for summary judgment heard by the court.

Legal Issues Presented

1. Whether the claimants have a sustainable cause of action in misfeasance in public office based on the continuation of investigations and referral to hearings without sufficient evidence.
2. Whether the named officers acted with the requisite malice, specifically subjective knowledge or recklessness, to support a claim of misfeasance in public office.
3. The legal effect of serving Regulation 9 notices without evidence and referring cases to hearings under Regulation 11 in the context of the PCR.
4. Whether the claimants can demonstrate unfair discriminatory treatment in relation to expense claim charges pursued against some but not others.

Arguments of the Parties

Defendant's Arguments

• The allegations of knowledge or subjective recklessness by the named officers are in substance no more than allegations of negligence or objective recklessness, which do not meet the threshold for misfeasance in public office.
• Subjective recklessness is difficult to infer, and alternative explanations such as overwork or incompetence are plausible.
• Serving Regulation 9 notices promptly does not require existing evidence of misconduct; thus, lack of evidence at the notice stage does not render the notices unlawful.
• Advice from counsel and a policy note demonstrate that the decision to refer cases to hearings was taken on a reasonable basis, further raising the hurdle for claimants.
• The claimants’ pleadings lack particulars supporting assertions of unlawful or reckless conduct by named officers.
• No new evidence is likely to arise from further disclosure, as a six-week hearing with full disclosure had already taken place.
• The claimants originally advanced negligence claims and only later sought to convert these into claims of misfeasance, which the Defendant contends is impermissible.

Claimants' Arguments

• The claimants maintain that the pleadings allege knowledge or subjective recklessness, which must be assessed on the evidence rather than struck out at this stage.
• The continuation of the investigation and referral to hearing without evidence of private vehicle use, despite warnings from the Crown Prosecution Service and admissions by some claimants, supports an inference of recklessness.
• Counsel's advice does not shield public officers from liability if they act unlawfully or recklessly.
• The claimants seek disclosure not only of counsel's advice but also of underlying instructions, asserting that disclosure to date has been partial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the claimants' allegations against the established elements of misfeasance in public office, particularly focusing on the element of malice in the form of subjective knowledge or recklessness. The court noted that while the claimants pleaded knowledge or subjective recklessness, the particulars provided were insufficient to establish this element. The mere assertion that the defect in the case was obvious did not amount to a proper particularisation of bad faith.

The court emphasised that misfeasance claims require more than allegations of negligence or objective recklessness; subjective bad faith must be demonstrated through clear evidence or particulars. The court accepted that alternative explanations such as overwork, incompetence, or errors of judgment were plausible and that the claimants’ pleadings failed to exclude these possibilities.

Regarding the service of Regulation 9 notices, the court held that these are intended to inform of an investigation and need not be supported by evidence at the time of service. Therefore, the lack of evidence at that stage does not render the notice unlawful.

The court reviewed the remarks of the misconduct panel, which highlighted a lack of clarity in force instructions and poor record-keeping by the officers, undermining the claimants’ position that the investigation was fatally flawed due to lack of evidence. The court found no real prospect that the claimants could prove the named officers acted with the requisite malice or recklessness.

The expense claim allegations were similarly unsupported by particulars demonstrating unlawful or reckless conduct, and the court found no real prospect of success on those grounds.

Accordingly, the court concluded that the claimants’ misfeasance claim was unsustainable and granted the Defendant’s applications to strike out and for summary judgment.

Holding and Implications

The court’s final decision was to STRIKE OUT the claim for misfeasance in public office and grant summary judgment in favor of the Defendant.

This ruling means that the claimants’ action against the Chief Constable, based on allegations of unlawful disciplinary proceedings and misfeasance by named officers, cannot proceed. The court found no sufficient basis to infer the necessary element of malice or subjective recklessness. No new legal precedent was established; the decision reinforces the stringent requirements for pleading and proving misfeasance in public office claims, particularly the necessity for proper particularisation of bad faith and the distinction between negligence and actionable misconduct.