20 A further basis for largely rejecting the submission that the Plaintiffs have not identified a prosecutor lies in the assertion in the proposed pleading that the Third Defendant was the informant on all (of the original) charges. The associated claim that he was involved in the procurement of the charges (i.e. before they were preferred), and agreed in the decision to institute the charges, combined with the allegations of earlier manufacture of false evidence and extensive involvement with the Third Defendant (who according to the proposed pleading was the informant) in that connection is enough, if established by evidence, to permit of the conclusion that Haken was, in his own right, a prosecutor, even if not the only one.
21 As has been said, the first three of the charges on which the Plaintiffs went to trial accord with the first three of these original charges save and except that, in the case of the second charge, the quantity was downgraded to "trafficable". For pleading purposes, I regard that difference as immaterial - See Leibo v Buckman (1952) 2 All E R 1057 at 1071.
22 Of course this (virtual) identity between 3 counts of the indictment and 3 of the charges originally laid against each plaintiff does (or at least may) not apply in the case of the fifth count and does not apply in the case of the fourth count (notwithstanding the features that count has in common with some two of the charges originally laid. However, in light of the width of paragraphs 27 to 29 of the proposed pleading, at least so far as Haken is concerned, I regard the omission of reference to anyone else who may have preferred the charge as insignificant. Whether, so far as the fourth and fifth counts are concerned, the current formulation of the pleading is narrower than the Plaintiffs may ultimately wish to rely on is not a matter of present relevance.
23 In saying what I have, I do not ignore the fact that, to succeed in his action, the Plaintiff will need to prove a causal link between the actions of Haken to which he refers and the institution and/or the maintenance of one or more of the charges referred to. Certainly, one way of doing so is to call express evidence to the effect that the person who was formally or finally responsible for their institution or continuation was moved to act, at least in part, by the actions of Haken. However, there is no reason why the causal link cannot be proved as a matter of inference from for example, the terms of the admissions attributed to the Plaintiff by Haken or those terms combined with the "discovered" heroin and (possibly) evidence as to the practice of preparation of briefs for whatever organisation laid the charges.
24 Nor is there any validity in another criticism that the proposed pleading does not qualify the allegation of maintenance of all charges. Certainly some of those originally preferred would seem to have come to an end at some time and once that occurred, the Defendants did not maintain them. However, there was clearly a time, at least up until the conclusion of the committal proceedings and probably until the Plaintiffs were put on their trial or the indictment preferred, when all were being maintained and I see no embarrassment in the fact that the proposed pleading does not claim a particular date when some of the charges terminated and expressly limit the claim of maintenance to an earlier period.
25 Another objection to the proposed pleading was that the assertions in paragraphs 28(a) and 28(b), being assertions as to Haken's actions or knowledge in or after November 1984, could have no bearing on the institution of the charges concerning events in March, April or June 1984. Insofar as this objection relies on the events occurring before any actions by or knowledge of Haken - and that was one of the bases on which it was put - it must be rejected. Haken could well, after November, have inspired or maintained charges concerning earlier events. However, I find it impossible to see how Haken's participation and awareness as alleged in those paragraphs can tend to prove any involvement in procurement (or maintenance) of the charges.
26 Paragraphs 28(a) and 28(b) are referred to, directly or indirectly, in other paragraphs of the proposed pleading, e.g. 36(a), 38(a), 40(a), and 42(a). Paragraph 28(b) has a somewhat parallel allegation in paragraph 42(b). None of these further paragraphs justify paragraphs 28(a) and (b) being permitted.
27 An objection taken to the terms of paragraph 28(u) was that agreeing in and endorsing a decision to institute charges could not amount to a particular of procurement because, by definition, a decision to prosecute had already been made. It was further submitted that no facts had been pleaded to establish that the information-gathering or decision-making referred to in that paragraph were of a collective nature. Though in slightly different terms, paragraph 29(j) seemed to be the subject of similar objections.
28 It is clear that part of the Plaintiffs' case is that a number of members of the JTF, named in the proceedings were, relevantly, prosecutors and jointly involved in the decision to institute what is said to have been the malicious prosecution of the Plaintiffs. The expression "agreed in and endorsed the decision" when no time is specified is clearly susceptible of the construction that the Second Defendant seeks to put on it, viz after the decision was made, and possibly after the charges were instituted, the agreement and endorsement occurred. The second criticism concerning the absence of facts to establish that the information-gathering or decision-making referred to in that paragraph were of a collective nature is also valid. Accordingly, paragraph 28(u) in its current proposed form should not be allowed.
29 Although paragraph 29(j), directed to the maintenance of the charges, is in a slightly different situation the paragraph is also susceptible of the interpretation that the agreement and endorsement was of actions and events in the past. This also should not be allowed. However, the Plaintiffs should be entitled to amend if they wish to contend that that Haken (and some or all of the others named in paragraph 27) jointly procured and maintained the charges.
30 I reject also as a valid objection to the pleading the complaint set out above in sub-paragraph 14(b) and (l). Part 14 Rule 8 requires that a pleading be as brief as the nature of the case allows. Subject to two matter to which I will come, paragraphs 28 and 29 allege matters of fact to which the Second Defendant can satisfactorily plead as those paragraphs stand. From the pleading point of view, no benefit would accrue were the Plaintiff required to do as the Second Defendant suggests. Nor as a practical matter would there be any benefit at trial. Although there may well be scope for some argument, the strong probability is that by the end of the hearing it will be fairly obvious to all which matters in paragraphs 28 and 29 do or do not have any bearing on particular charges. Specification now will achieve nothing except to create a (weak) stick with which the Defendant may try to beat the Plaintiff at the hearing if the Plaintiff tries to rely in the case of any charge on and one or more sub-paragraphs.
31 The two matters to which I referred are these. The first concerns the headings of paragraphs 28 and 29, which are calculated to lead to the view that what follows under those headings are merely particulars and as such matters to which the Defendants are not required to plead. During the course of argument, counsel for the Plaintiff indicated he did not want the matters so treated. Upon the basis that pleadings should, so far as practicable define the issues between the parties I do not regard that as a satisfactory state of affairs and am not inclined to allow the proposed pleading in that form. I acknowledge that those heading do help to define what the Plaintiffs rely on in respect of the distinct issues of procurement and maintenance and it may be necessary for some amendment or addition to paragraph 27 to accommodate my view. Secondly, the absence of any specification of the time in many of the sub-paragraphs of paragraph 28 is calculated to be embarrassing or inspire a request for particulars and should be dealt with now as best it can be.
32 In these circumstances, the appropriate order is that the Plaintiffs have liberty to amend the Statement of Claim in accordance with these reasons and, subject to what I have said, in accordance with, the "Amended Statement of Claim" being annexure A to the Further Amended Notice of Motion filed on 10 October 2008.
33 In case there should be any further or other difficulty yet unresolved, all parties should have liberty to apply in respect of the form of any Amended Statement of Claim on 7 days notice.
34 Prior to this application coming on for hearing, there appear to have been a deal of correspondence and other inter-reaction concerning the original Statement of Claim and amendments. There was a Notice of Motion issued by the First Defendant dated 3 May 2006 and I was informed that the Plaintiffs have agreed to pay the First Defendant's costs of an incidental to that motion and the costs, up to 4 November 2008, of the Plaintiff's own motion to amend.
35 The Second Defendant also filed a Notice of Motion on 5 May 2006, to strike out the original Statement of Claim. The Plaintiffs agreed that the Second Defendant should have its costs of that motion up until 4 November 2008.
36 The Plaintiffs submitted that, if successful, they should have the costs of their motion to amend, without limitation as to date.