Calveley v Chief Constable of the Merseyside Police
| Jurisdiction | England & Wales |
| Judge | LORD DONALDSON OF LYMINGTON M.R.,LORD JUSTICE GLIDEWELL,LORD JUSTICE STAUGHTON |
| Judgment Date | 07 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0707-4 |
| Docket Number | 88/0597 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 July 1988 |
[1988] EWCA Civ J0707-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR NEIL LAWSON)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson of Lymington)
Lord Justice Glidewell
Lord Justice Staughton
88/0597
MR. J. SAMUELS Q.C. MR. C. PUGH and MR. B. PATTON (instructed by Messrs. Russell Jones & Walker) appeared for the Appellants (Plaintiffs).
MR. A. RAWLEY Q.C. and MR. F. MARR-JOHNSON (instructed by Messrs. Sharpe Pritchard & Co.) appeared for the Respondents (Defendants).
These three conjoined appeals raise novel issues of some general importance. All the plaintiffs are or were police officers. All have been the subject of police disciplinary proceedings. All claim that the proceedings were misconducted and that they have thereby suffered loss. All claim damages in actions begun by writ. The primary issue is whether, assuming their complaints to be justified, they have a cause of action known to the law. If they do, there is a subsidiary issue, namely, whether they must pursue this claim by ordinary action begun by writ or whether they are confined to seeking damages in proceedings for judicial review.
The issues fall for decision in this court because Sir Neil Lawson, on the application of the defendant Chief Constables, struck out all their claims, with the sole exception of a claim by Mr. Park that the investigation officer maliciously obtained a search warrant to search his home. This, if true, is admittedly a recognised tort giving rise to a right to claim damages in an action begun by writ. It is therefore irrelevant for present purposes.
Before turning to the law, let me refer briefly to the facts alleged by the plaintiffs which, this being an appeal against a striking out, fall at this stage to be assumed to be true, although if the actions are allowed to proceed they will have to be probed.
CALVELEY'S APPEAL
In June 1981 complaints were made against these five officers and an investigating officer was appointed under the Police (Discipline) Regulations 1977. Regulation 7 required the investigating officer to give the five officers written notice of the complaints "as soon as practicable", but he did not do so until November or December 1983, 18 months later. When at a disciplinary hearing in September 1984 the officers submitted that they had been irretrievably prejudiced by this failure to give them notice, the Chief Constable rejected the submission, found the officers guilty and ordered their dismissal from the Force.
The officers were entitled to appeal, and did appeal, to the Home Secretary pursuant to the right given to then under section 37 of the Police Act 1964, but they also applied for judicial review of the Chief Constable's decision. The Divisional Court refused the application upon the grounds that it was premature in the light of the alternative available remedy. This court allowed the appeal and quashed the Chief Constable's decision. The full reasons for that decision are available in the judgments of this court reported in (1986) 1 Q.B. 425. I need only add a postscript on a minor matter which was reported at (1986) 1 A.E.R. 257, 267. The plaintiffs claimed to be reimbursed the costs incurred in this court and in the Divisional Court and this was conceded. They also claimed to be reimbursed costs incurred in the precautionary appeal to the Home Secretary. I say "precautionary" because the appeal was subject to time limits which could not be met if they awaited the outcome of the proceedings in this court. Clearly there was a difficulty in that those costs, strictly speaking, were not costs in the proceedings with which this court was concerned. On the other hand, they were necessarily incurred. The problem was thought to have been solved, and in a sense was solved, by awarding the plaintiffs damages in an amount equal to those costs. There was no argument concerning their right to claim damages and I do not regard that decision as being of any authority in the present or any other proceedings.
During their suspension these plaintiffs had received their full basic pay and the more important of their allowances. Following the decision of this court to quash the Chief Constable's decision and, in effect, to bring the disciplinary proceedings to an end, the suspension was terminated and they received such allowances as had been withheld during that period. Bach now claims £3,000 special damages for loss of overtime pay during the period of their suspension which coincided with the miners' strike when a great deal of overtime pay was earned by police officers and also for general damages for "anxiety, vexation and injury to reputation".
There are obvious problems about the general damages claim, but we need not go into them on these appeals.
WORRALL'S APPEAL
In these cases the plaintiffs were the subject of a complaint, were later suspended from duty and thereafter charged with disciplinary offences and acquitted. As in the Calveley cases, they received full basic pay and allowances for the period of suspension. As in the Calveley cases, these plaintiffs complain of a failure to give them notice of the complaints "as soon as practicable". In addition, they complain of failure to conduct the investigation expeditiously, to interview the plaintiffs properly or at all, suspending them from duty without adequate prior investigation and failing to end the suspension as soon as it became apparent that the likelihood of their conviction of any disciplinary offence had become remote. All these complaints were based upon alleged breaches of the Police Act 1964, the Police (Discipline) Regulations 1977, the Merseyside Police Manual of General Instructions and the Home Office Circular 32/1980 (Evidence to Chief Officers on Police Complaints and Discipline).
In these cases, as in the previous group, there is a claim for special damages in the form of lost overtime earnings and for general damages for "anxiety, vexation and injury to reputation".
PARK'S APPEAL
Mr. Park too was the subject of a complaint, an investigation and a suspension. The Director of Public Prosecutions advised that there was insufficient evidence to justify criminal prosecution and Mr. Park has always maintained that he was framed. An unfortunate feature of this case is that Mr. Park had to be treated for a stress related condition said to result from his experiences and he was medically discharged before the complaint could be determined one way or the other. Mr. Park alleges malicious and/or negligent conduct of the investigation and a malicious abuse of power and/or negligence in deciding to suspend him from duty and in failing to reinstate him before his discharge from the Force upon medical grounds. Mr. Park claims loss of overtime earnings, continuing loss of earnings since retirement, loss of promotion prospects and pension rights, general damages for abuse of process, malicious abuse of power, frustration, vexation, annoyance and damage to "fair fame' and exemplary damages for oppressive use of power.
THE COMMON LAW CLAIMS
In each of these appeals the first question for decision is whether in the context of police disciplinary proceedings and the relationship between the plaintiffs and the Chief Constable and officers for whose actions he is vicariously responsible under section 48(1) of the Police Act 1964, the plaintiffs were owed a duty of care at common law as contrasted with having rights of action based upon breach of statutory duty, i.e. the Police Acts and Police Disciplinary Regulations.
The learned judge rejected this contention by the plaintiffs basing himself upon the decision of the House of Lords in Hill v. Chief Constable of South Yorkshire (1988) 2 W.L.R. 1049—the Yorkshire Ripper case—saying that "it would be a bit odd if the ordinary layman cannot complain of delay and so on whereas a Police Constable is put in a special position". with all respect to him, I think that this is an over-simplification. It does not seem to me to follow that the relationship with which we are concerned—police officer under investigation, Chief Constable as his quasi-employer and investigating officer appointed by the Chief Constable—is the same as, or more remote than, that under consideration in Hill's case. On the contrary, it is probably closer.
A better pointer seems to me to be provided by the decision of this court in Jones v. Department of Employment (1988) 2 W.L.R. 493. Glidewell L.J. reviewed the authorities and, at page 506, asked himself the question "whether (in all the circumstances) it is just and reasonable that the adjudication officer should be under a duty of care at common law to the claimant to benefit". He answered this question in the negative baring regard to the nature of the adjudication officer's responsibilities and, in particular, to the fact that the statutory framework provided a right of appeal which, if a point of law arises, can eventually bring the matter to the court. Slade L.J. at page 509 and Caulfield J. at page 510 reached similar conclusions. In addition, Slade L.J. drew attention at page 510 to the fact that, if a common law duty of care were held to exist, disappointed claimants would have, and would undoubtedly take, an alternative route to, in effect, appeal...
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