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Pelling v Johnson, High Court, 16 March 2004

1 April 2004
The issues

Trespass to the Person – Misfeasance in Public Office – Assault.

The facts

The Claimant, Dr Pelling, acted as a McKenzie friend for AM, the father of FM a boy 10 years old and who was the subject of a long-running residence and contact dispute. The matter was heard by Singer J who ordered that the boy should return to live with his mother for 2 days, pending further consideration. The Judge gave Directions that the Reporter should inform FM and that AM should move to a different part of the Royal Courts of Justice while the Order was carried into effect. An Assistant Tipstaff, Mr Johnson was on hand and Singer J asked him to loiter in the area and ensure that AM was not about should FM’s mother seek to leave with the boy. The Reporter spoke to the boy in a conference room and then followed him into the corridor when he left the room still talking to him. He did not want to go with his mother. Dr Pelling went to speak to the boy and he and the Reporter exchanged words. Mr Johnson became involved and shortly afterwards the Judge entered the corridor. The Judge directed Dr Pelling and two other adults who were friends and supporters of AM and FM to leave. The Judge spoke to the boy himself but failed to persuade him to comply with his Order. The Judge therefore directed the Court to be reconvened. While returning to Court, Dr Pelling went to the boy and spoke to him. It was alleged that the Tipstaff, Mr Johnson, tried to overhear his conversation and at one point tried to prevent him speaking to the boy by grabbing him by the shoulder. In any event, Dr Pelling said words to the effect of “hold firm you don’t have to go back to your mother”. In Court, the Judge reversed his earlier Order. The Judge became aware of the conversation outside Court between the boy and Dr Pelling and directed that Dr Pelling could no longer act as the McKenzie friend and that he was considering criminal contempt proceedings. Dr Pelling left Court and again went to speak to the boy. He alleged that Mr Johnson tried to intimidate him, tried to overhear his conversation and objected to him speaking to the boy. Dr Pelling brought an action complaining of trespass to the person in respect of both occasions when he spoke to the boy and moreover alleged a breach of Article 8 of the European Convention and Misfeasance in Public Office. He sought damages, aggravated damages and exemplary damages. The Tipstaff denied assault.

The decision

1. The Judge found as a fact that an assault had taken place. Mr Johnson had taken hold of Dr Pelling, but had used no real or substantial force. Whatever contact there had been however was comparatively trivial. Nonetheless, it was sufficient to establish the tort of assault.

2. As to the tort of misfeasance, Three Rivers District Council -v- Bank of England established that the tort required:-

(i) That the Defendant be a Public Officer;
(ii) That he was exercising power as a Public Officer;
(iii) That he was acting with bad faith and with the specific intention of injuring a person or persons or where he was acting, knowing he had no power to do the act complained of and that the act would probably injure the Plaintiff;
(iv) He and The Tipstaff had been making an honest, albeit entirely misconceived attempt to perform his duties and was not acting in bad faith. The Tort of Misfeasance was not established.

3. There was no question of any of Dr Pelling’s Article 8 rights being breached.

4. The appropriate measure of damages was £50.00. There were no sufficiently aggravating circumstances to justify an award for aggravated damages, nor were exemplary damages which were intended to punish the Defendant in the event of oppressive or arbitrary behaviour by a Public Official appropriate.

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