Fiona Barton KC successfully defends multi-million pound claim arising from trading standards investigation [2022] EWHC 2162 (QB)

Fiona Barton KC acted for the defendant, Cheshire West and Chester Council, in a civil claim made against it by the BES group of companies which operate in the non-domestic utilities market throughout England, Wales and Scotland. The judgment can now be reported following the conviction of Andy Pilley and others in linked criminal proceedings in Preston Crown Court.

The case concerned a long running investigation conducted by the Council through North West Trading Standards into the alleged fraudulent business practices of the companies and some of their officers and associated brokers. Small business owners were deliberately deceived and locked in to contracts that were long-term and expensive, leaving many businesses struggling to pay the bills and sadly driving some business owners into making the difficult decision to cease trading. The investigation resulted in Lancashire Constabulary obtaining search warrants on 22 July 2016. The search warrants led to the seizure of an unprecedented volume of digital and hard copy material from various premises.

The civil claim was complex and multi-faceted. Issued in 2017 when the criminal investigation was ongoing, together with a number of other claims and applications to the courts, it was designed to and did divert human and financial resources from the criminal investigation to which it related. It was alleged that the defendant’s officers had failed to make full and frank disclosure to the court and/or had made material misrepresentations to the court when applying for the warrant and that consequently the warrant had been unlawfully obtained and all of the actions of the defendant thereafter were consequently unlawful. The claimants never sought a judicial review but sought declaratory relief and damages for misfeasance in a public office (relying upon the alleged bad faith of a trading standards investigator), a claim under the Human Rights Act claim, trespass and conversion. It was also alleged that there had been wrongful disclosure of material and information obtained during the course of the investigation. It was a novel claim which was initially struck out by the Master but was allowed to proceed on appeal.

 The defence of the claims gave rise to a number of legal issues:

1. Whether there should be reporting restrictions until the conclusion of the linked criminal trial.
2. Whether the defendant was entitled to use the material seized under the warrant in the civil action and if so, the issues to which it was relevant and admissible.
3. The fact that police officers cannot be act as agents when applying for or executing warrants.
4. The immunity of participants in legal proceedings to all causes of action save the malicious abuse of process torts eg. malicious prosecution.
5. The consequences of acts done in obedience to a warrant even where the warrant was said to be unlawfully obtained.
6. Whether declaratory relief within private law proceedings is available in respect of a warrant where judicial review had not been sought or obtained
7. The availability of an Art. 8 claim to corporate claimants and how the “minimum level of seriousness is to be interpreted.

The hearing took place over a period of 19 days in November and December 2021. Mr Justice Freedman handed down a lengthy judgment in August 2022 in which he determined all causes of action in favour of the defendant. The judgment was subject to a reporting restriction until the conclusion of the criminal proceedings. Those proceedings concluded with the conviction of the 4 defendants for serious offences, demonstrating the importance of maintaining a robust defence in appropriate cases, particularly where any capitulation in the civil claim is likely to feed abuse of process arguments in the criminal court.

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Related barristers

Fiona Barton KC

Call 1986 | Silk 2011

Related areas

Police Law

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Public & Administrative

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