Bianca Durrant v Chief Constable of Avon & Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1624 |
| Docket Number | Case No: A2/2013/1681 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2013 |
[2013] EWCA Civ 1624
Lord Justice Richards
Lord Justice Lewison
and
Mr Justice Coleridge
Case No: A2/2013/1681
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Birtles
[2013] EWHC 1984 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
The appellant represented herself
Alan Payne and Cicely Hayward (instructed by Legal Services Directorate, Avon & Somerset Constabulary) for the Respondent
This is the judgment of the court.
The recent judgment of the Court of Appeal in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 has given guidance on the correct approach towards applications under CPR 3.9 for relief from sanction for failure to comply with rules, practice directions and court orders. The present appeal provides an early opportunity to apply that guidance. Mitchell was concerned with a decision to refuse relief from a sanction imposed for failure to comply with the rules on costs budgeting. This case concerns a decision to grant relief from a sanction for non-compliance with an order requiring service of witness statements by a specified date and providing that the defendant might not rely on any witness evidence other than that of witnesses whose statements had been served by the specified date. The result of the grant of relief, so as to permit the defendant to rely on the evidence of witnesses whose statements were served late, was the loss of the trial date.
CPR 3.9 and the guidance in Mitchell's case
The version of CPR 3.9 which has been in effect since 1 April 2013 reads as follows:
"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need —
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."
The former version of the rule is set out at para 24 of the judgment of this court in Mitchell.
For the background to the present rule and the correct approach to its application, we refer to paras 34 to 51 of the judgment in Mitchell. The terms in which the court upheld the refusal of relief in that case, at paras 51 to 58, and in which the court expressed its conclusion, at paras 59 to 60, are also relevant. We do not propose, however, to engage in extensive repetition of what was said in Mitchell. We simply note at this point the judgment's clear endorsement of a tougher, more robust approach towards enforcing compliance with rules, practice directions and orders and thus towards relief from sanction. The specific passages of particular relevance to the present case will be identified when we come to examine the decision now under appeal.
The background to the present proceedings
We should stress that the following summary of the factual background is disputed in material respects by the claimant. It does not, however, constitute findings of fact by the court and will not affect her position at trial. It is included simply for the purpose of explaining the context of the appeal.
The claimant is a young woman who was arrested with two friends in the early hours of 13 June 2009 on suspicion of assaulting a taxi marshal in Bristol. They were placed in a police van (the claimant in the caged area of the van, and her friends outside the caged area) and conveyed to a police station. The friends were processed first at the police station. The claimant remained in the van for a short period before being transferred to the custody suite to await her turn to be processed. While in the custody suite she informed police officers that she needed to use the bathroom. There was a short delay, as a result of which she urinated on the floor of the custody suite before she could go to the bathroom.
On 14 August 2009, on the advice of the CPS, the claimant was charged under section 4 of the Public Order Act 1986 and with assault. But when the matter came to trial, on 26 February 2010, the prosecution offered no evidence against her and she was acquitted.
The claimant then made complaints to the defendant's Professional Standards Department ("the PSD") and to the Independent Police Complaints Commission ("the IPCC") about the circumstances of her arrest, detention and prosecution. The PSD rejected all her complaints save in relation to the urinating incident, where it held that the custody officer had made a regrettable error of judgment, though with no intention to cause the claimant distress, and that the claimant should receive an apology. The defendant subsequently made an unreserved apology and an offer of £200 compensation. The IPCC rejected the claimant's appeal against the PSD's findings. Further complaints by the claimant were also investigated but were rejected.
The claimant's criticisms extended to the actions of a total of fourteen police officers involved in the incidents or in the subsequent investigation of those incidents. By way of proceedings issued on 11 June 2010 and re-issued on 29 September 2010, the claimant made claims against the defendant and/or its officers for false imprisonment, assault, malicious prosecution, misfeasance in public office, defamation, race discrimination, and breach of the European Convention on Human Rights. In her particulars of claim she alleged, among other things, that she was arrested because of racial targeting by the police, who assumed she was guilty because of her skin colour; that she was the victim of a racially aggravated assault by the arresting officers; that in putting her in the caged area of the police van, officers were treating her differently because of her race; that she was treated in an inhumane, degrading and humiliating way because of her racial heritage; that the PSD did not uphold her complaints because of her race; and that she was victimised because of her complaints of race discrimination.
The history of the proceedings
The claimant has acted in person throughout. She is plainly an intelligent and articulate young woman, but she has made the proceedings more difficult for all concerned by a tendency to over-complicate and over-react.
One part of the early history we should mention is that on 16 February 2011 District Judge Daniel struck out the claimant's claims "in respect of Articles 6 and 7 of the Human Rights Act 1998" (we quote from the order of the court), together with a claim for contempt of court, and dismissed her application to join the IPCC as a defendant. Her application for permission to appeal against that decision was refused by His Honour Judge Denyer QC on 8 July 2011. She then applied for permission to appeal to this court but was correctly informed by the Civil Appeals Office, by letters dated 21 July and 28 July 2011, that this court had no jurisdiction to entertain the application: that is the effect of section 54(4) of the Access to Justice Act 1999. Yet on 28 October 2013 she applied for a "re-hearing" under CPR 52.11(1)(b) of DJ Daniel's decision of 16 February 2011. The application was directed to be listed for hearing at the same time as the present appeal. At that hearing we declined to entertain the application, which in our view was totally misconceived: the lack of jurisdiction to entertain a challenge to DJ Daniel's decision had been explained in July 2011, the attempt to re-open the matter was hopelessly out of time, and CPR 52.11(1)(b) applies only to the conduct of an appeal that is properly before the court.
To return to the history, on 21 October 2011 there was a further hearing before DJ Daniel, at which he dismissed an application by the claimant to strike out the defence, gave directions for the exchange of lists of documents and witness statements, and directed that the case be transferred to the Royal Courts of Justice. Although that was the first of a sequence of orders setting a date for service of witness statements, it was subject to the difficulty that the claimant's case was not properly particularised at that stage, and it was effectively superseded by the case management directions described below.
In November 2011, Master Cook gave permission for the transfer to the Royal Courts of Justice and directed a case management conference, which took place on 8 March 2012. At that conference the Master directed the claimant to serve amended particulars of claim in substitution for all previous documents filed in support of her claim, and gave directions for service thereafter of an amended defence and for standard disclosure. The defendant's position statement for the case management conference, settled by counsel, stated that the defendant was likely to call eight witnesses, and that owing to the passage of time there was some difficulty obtaining statements from some of them but the defendant was optimistic that with extra time the statements would be obtained. An accompanying witness statement by Nicola Hammond, a solicitor in the defendant's Legal Services Directorate, stated that "The Defendant may need a few weeks to locate some of the witnesses who no longer work for the Defendant or who are currently on career breaks away from the Force". The defendant invited the court to make a direction for mutual exchange of witness statements by 24 May 2012. In the event, however, the Master did not include a direction in respect of witness...
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