Ashley v Chief Constable of Sussex Police
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Lord Justice Auld,Lady Justice Arden |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1085 |
| Docket Number | Case No: A2/2005/0776 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2006 |
[2006] EWCA Civ 1085
[2005] EWHC 415 (QB)
Sir Anthony Clarke Mr
Lord Justice Auld and
Lady Justice Arden
Case No: A2/2005/0776
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON
Mrs Justice Dobbs DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Keir Starmer QC and Mr Richard Hermer (instructed by Messrs Deighton Guedalla) for the Claimants
Mr Edward Faulks QC and Mr Paul Stagg (instructed by Weightmans) for the Defendant
Introduction
This is an appeal against part of an order made on 21 March 2005 by Dobbs J. She refused permission to appeal but permission was subsequently granted on paper by Tuckey LJ. The order was made in an action or actions arising out of the fatal shooting of James Ashley by PC Sherwood during an armed raid on his flat by Sussex police officers on 15 January 1998. The appellants, each of whom is also called James Ashley, are the son and the father of the deceased respectively. In order to avoid confusion I shall refer to them as the son, the father and the deceased respectively. The claims are brought by both appellants under the Fatal Accidents Act 1976 as dependants of the deceased. A claim is also brought by the father as representative of the estate of Eileen Ashley, who was the deceased's mother and who originally claimed as a dependant but who died on 8 November 2004. In addition the father brings a claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the deceased's estate.
The respondent is the Chief Constable of the Sussex Police. On 15 January 1998 and throughout the relevant events the Chief Constable was Mr Paul Whitehouse. However he retired in September 2001 having ceased operational control in July 2001. Both those dates were after the son issued his claim and before the father and his late wife issued their claims. The Sussex Police Authority has expressly agreed that it will meet damages and costs awarded against a Chief Constable, past or present, in respect of personal torts committed by him in the ordinary course of his duties. Accordingly the respondent takes no point on any failure on the part of the appellants to sue Mr Whitehouse personally. I shall refer to the party to these proceedings as 'the respondent' and to Mr Whitehouse as 'the Chief Constable'.
The claims were and are divided into two parts. The first part relates to the planning and execution of the armed raid and involves allegations of assault and battery (which I will together call "battery"), false imprisonment, negligence and misfeasance in public office. The second part relates to the conduct of the Chief Constable and some of his officers after the raid and involves allegations of negligence and misfeasance in public office.
As to the first part, the respondent admitted negligence and false imprisonment and the judge accordingly gave judgment for the appellants on those claims as appropriate, with damages to be assessed. The respondent denied battery and misfeasance in public office. The judge struck out the claim for misfeasance in public office under CPR 3.4. She also gave summary judgment for the respondent under CPR 24 in respect of both the claim for battery and the claim for misfeasance in public office.
Until 21 December 2005 the grounds of appeal included a challenge to the order relating to misfeasance in public office. By a Note of that date signed by Mr Starmer and Mr Hermer the appellants abandoned that ground of appeal. They did so, as they put it in paragraph 17 of the Note, on the basis of a concession made in the defence and elaborated upon before the judge. The key concessions in the defence were that the respondent admitted negligence in relation to the planning and execution of the armed raid and that the deceased died as a result of that negligence. That position was maintained before the judge but, in addition, the respondent admitted false imprisonment. It follows that, so far as the first part of the claim is concerned, although the respondent does not admit battery or misfeasance in public office, he admits liability for all the consequences of the false imprisonment and the death of the deceased and he further admits that he is liable for all the damages recoverable as a result.
In these circumstances the appellants do not maintain their claim for damages for misfeasance in public office in respect of any of the events leading up to the shooting. The only issue between the parties as to the first part of the claim is whether the respondent is also liable for battery. The appellants say that the judge was wrong to give summary judgment for the respondent in that regard and, although they do not seek to recover more damages than they are entitled to in negligence (and false imprisonment), they say that they should be permitted to maintain their case that the deceased was unlawfully shot by a police officer for whose tort the respondent is vicariously liable and that it is in the public interest that the court should so hold and, if necessary, make a declaration to that effect.
The position in relation to the second part of the claim is different. The judge summarised the position thus in paragraph 17 of her judgment, which spans both parts of the claim:
"The Defendant has admitted that the death of the Deceased was caused by the negligence of the police and further admits that the negligent handling of the release of the name of the Deceased has caused personal injury to the Claimants. At the hearing before me, the Defendant admitted the claim for false imprisonment, and although denying any other particulars of negligence with regards to the post-shooting events, full responsibility for any damages which can be proved to have flowed from the incident and its subsequent events has been accepted. Misfeasance in Public Office is denied in its entirety."
The word 'any' was emphasised by the judge to underline the fact that the respondent accepts liability for all the damages which can be proved to have been caused both by the shooting and by the post-shooting events. That is so although he does not admit that a duty of care was owed to the appellants save in limited respects and he denies that he is liable for misfeasance in public office.
In the course of the appeal, the position of the respondent was further clarified. Mr Faulks produced a draft document which was subsequently commented upon by Mr Starmer and after some discussion the position was agreed as follows. The respondent agreed to pay what are called basic (ie compensatory) damages:
i) to the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934 for pain, suffering and loss of amenity prior to the deceased's death (if proved);
ii) under the Fatal Accidents Act 1976 to the appellants who claim to be the deceased's dependants for loss of dependency (if proved) ; and
iii) to the appellants and to the estate for psychiatric injury (if proved) and any financial losses consequent on that injury (if proved), provided that such injury and loss is shown to have been caused by the death or any other relevant event.
"Relevant event" was defined to mean any event or alleged event subsequent to and connected with the death of the deceased, including the conduct of the Chief Constable following the death and the investigation into the circumstances in which the deceased was killed, whether or not there had been an admission of negligence and/or a denial of assault and/or misfeasance in relation to such events.
It was agreed that aggravated damages are also compensatory in nature and are paid for the shock, distress, outrage and similar emotions experienced by the appellants caused by any aggravating or alleged aggravating features of the case, including humiliating circumstances at the time of the death or during the investigation, and/or any conduct or alleged conduct which shows that those responsible behaved in a high handed, insulting, malicious or oppressive manner. The respondent agreed to pay aggravated damages assessed in accordance with those principles both to the estate and to the appellants or Mrs Ashley's estate (in each case if proved and in so far as not already compensated by an award of basic damages) . The respondent further agreed that the issue of aggravated damages will be dealt with as if they were available in the tort of negligence. The respondent did not however agree to pay exemplary damages.
In these circumstances the appellants accept that they cannot recover more compensatory (including aggravated) damages than those to which they are entitled pursuant to the respondent's admissions but they say that the public interest requires that they should be entitled to a trial on the issue of misfeasance in public office and that if they establish misfeasance they are entitled to exemplary damages. I note in passing that at the hearing of the appeal it was said that the appellants would be entitled to exemplary damages for misfeasance whether or not they were awarded compensatory damages. They relied upon the decision of this court in Watkins v Home Office [2004] EWCA Civ 966, [2005] QB 883, in which it had been held that the tort of misfeasance in public office was actionable without proof of damage. Since the hearing of this appeal, the House of Lords has reversed that decision and held, at [2006] UKHL 17, [2006] 2 WLR 807, that damages must be proved. It follows that the appellants cannot succeed...
To continue reading
Request your trial
-
Kelly Minio-Paluello v The Commissioner of Police of the Metropolis
...reasonably held; and (ii) the action taken on the basis of this belief must be reasonable: see Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398 CA. This point was not the subject of appeal before House of Lords decision in the same case, reported at [2008] 1 AC 96. For cases of se......
-
Carl Brown v Attorney General of Jamaica and Another
...in circumstances wherein the defence of self defence is raised. See: Murphy on Evidence 11 th ed . [2009], at p.83 and Ashley v Chief Constable of Sussex— [2007] 1 W.L.R. 398. 56 In Jamaica however, it can never be forgotten that Section 33 of the Constabulary Force Act requires that in or......
- N Indra Nallathamby v Datuk Seri Khalid Abu Bakar
-
White v Withers LLP
...there was no prospect of a significant remedy. Similar considerations weighed with the Court of Appeal in the case of Ashley v Chief Constable of Sussex Police [2007] 1 WLR 398, where the claimant was permitted to proceed with his claim for assault notwithstanding admissions made on the Chi......
-
Court of Appeal
...Journal of Criminal Law118 Self-defence: Difference between Civil and Criminal LawAshley and Others v Chief Constable of Sussex Police[2006] EWCA Civ 1085In the early hours of 15 January 1998 an armed police raid on a flat inSt Leonard’s on Sea went tragically wrong. James Ashley, who wasb......