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Rixon v Chief Constable of Kent, Court of Appeal

28 April 2000
The issues

Police – Solicitors Right To Enter A Police Station – Claimant’s Right To Legal Advice – misfeasance – Striking Out Under The Civil Procedure Rules

The facts

Police arrested two men, M and G, on suspicion of theft and took them to Folkstone Police Station. A solicitor, Mr Wilson, employed by Rixons attended to both of them. M was charged when he refused bail and became abusive to the Custody Sergeant. M made disparaging remarks about the solicitor’s competence. They subsequently had a private consultation. After M was seen talking to G and passing him cigarettes. A fracas ensued. The following day the solicitor attended the Police Station to see client in custody and was excluded from the custody area and prevented from seeing his client. The firm employing him was told that he would continue to be excluded until the enquiry into the fracas was over. The firm of solicitors pursued alleging negligence and misfeasance.

The decision

Merely because a detainee had a right to see a solicitor it did not follow that the solicitor had the right to enter the Police Station to see the detainee. He had no such right. The right vested in the client. If the police thought to interfere with the client’s right his remedy lay in the field of public law. The Claimant firm had placed no reliance on any interference with the client’s right in the proceedings that they had brought against the Police. They could not identify any right of theirs that had been infringed. Even assuming all the facts were in their favour it was impossible to see how their cause of action in negligence could succeed. It was noted that the claim was not in respect of personal injury or damage to property. The allegations of misfeasance referred to an earlier incident in Dover involving another employee of the firm when a detained suspect had escaped through an unlocked door having been left there in the company of the solicitor’s employee. The employee of the solicitors told the Police that they would not be giving a statement with regard to that escape for ethical reasons. The solicitor’s firms case in misfeasance was that the Police action in excluding Wilson was a revenge for the failure to co-operate in respect of Miss Middleton’s incident. However, since the Claimant firm did not have the rights which they asserted the plea of misfeasance would also be bound to fail.

Per Brooke LJ. If the Claimant’s statement of Case was found to contain a coherent set of facts which disclosed a legally recognisable claim against the Defendant the Defendant was under the new Civil Procedure Rules entitled to try to persuade the Court notwithstanding that fact the Claimant had no real prospect of success. The Court would normally then have to consider any evidence the parties might adduce.

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