Dear Barry;

Thanks for this interesting case. This is I know probably a silly question, but just wanted to be clear- this sort of claim is not precluded by the NZ “no fault” system as that only deals with claims involving “personal injury”? And this is a claim for economic loss and other issues, but not personal injury?

Regards

Neil

 

 

 

 

Greetings from New Zealand

 

The New Zealand High Court has just declined an application to strike out a claim where the plaintiff alleged that the Police owed him a duty of care when investigating a murder. He was the principal, possibly only suspect, and was charged with the murder. This led to him being recalled for a previous offence and serving the remainder of a lengthy jail term, then coming under very restrictive bail conditions upon release. There were obvious economic consequences as well as distress and shame. Ultimately the Police decided the evidence they had been given by certain witnesses was so unreliable that they suggested to Mr King's counsel that an application for discharge for want of evidence be made - an order to that effect was made without opposition by the Police.

 

In King v Attorney-General [2017] NZHC 1696 (judgment is available here http://www.courtsofnz.govt.nz/cases/king-v-attorney-general/@@images/fileDecision?r=212.215722886), the Court distinguished between the period prior to charging and then the period after which he had been charged.

 

In respect of the first period, the Court held that there was no novel duty of care as the point had effectively been decided against the Plaintiff. Nonetheless, the Court added to this by saying at [87] that recognising a duty of care for steps prior to laying the charge would interfere with prosecutorial discretion, the freedom to set the law in motion and the tort of malicious prosecution.

 

The situation after the charge was laid was different. The Court accepted that in civil litigation, an allegation of misconduct by the other party is to be dealt with through civil procedure rules (such as abuse of process) rather than a duty of care. In criminal cases, while it accepted that the answer is provided in England by Jain v Trent Strategic Health Authority [2009] UKHL 4 (no such duty) and recognised that New Zealand criminal procedure does provide considerable safeguards against misconduct, but found that this might not be enough in every case. The Court also accepted at [112] that a great deal of caution is needed an accepting the possibility of litigation-based misconduct being negligence, the possibility could not be excluded with the level of certainty necessary to strike it out. It is important that the Court saw the matter as not entirely settled by New Zealand law: our Supreme Court has indicated quite strongly that in such cases, the courts need to err on the side of allowing cases to go to trial. The Court did indicate a level of scepticism that the claim would succeed, saying at [125] that there was considerable scope for the proposed duty to erode the torts of misfeasance in public office and malicious prosecution, although it noted that the concern about deterring honest people from prosecuting has less force when the prosecution is under way.

 

Some attention was given to the recognition of a standalone tort of negligent investigation (as recognised by the SCC in Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129) but ultimately dealt with it as a novel duty of care issue.

 

Barry Allan

Associate Professor - Law

Otago University