Chief Constable of the Greater Manchester Police v Wigan Athletic AFC Ltd
| Jurisdiction | England & Wales |
| Judge | The Chancellor:,Lady Justice Smith,Lord Justice Maurice Kay,A,C |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1449 |
| Docket Number | Case No: A3/2008/0664 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2008 |
[2008] EWCA Civ 1449
The Chancellor of the High Court
Lady Justice Smith and
Lord Justice Maurice Kay
Case No: A3/2008/0664
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT CHANCERY DIVISION
MR JUSTICE MANN
HC6C02193
MR ADAM LEWIS & MS SARAH WILKINSON (instructed by DLA PIPER UK LLP, LIVERPOOL) for the Appellant
MR NEIL BERRAGAN (instructed by Messrs Weightmans, Manchester) for the Respondent
Hearing dates: 11/12 November 2008
Judgement
Introduction
The defendant and appellant (“the Club”) is a premier league football club with a home ground at a stadium in Wigan known as the JJB Stadium. It occupies the stadium as the licensee of Wigan Football Club Ltd (“the Stadium Company”). In order that football matches may be played at the stadium it is necessary for the Stadium Company to be the holder of a certificate under the Safety of Sports Grounds Act 1975. The certificate in force for the seasons with which this appeal is concerned, namely 2003/04 and 2004/05, required the Stadium Company to secure at its expense the attendance of “such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators”. In practice that obligation was delegated by the Stadium Company to the Club.
The claimant and respondent (“the Chief Constable”) is the relevant chief constable for the purposes of that certificate. In the material seasons his duties in relation to football matches in the JJB Stadium were discharged by Chief Superintendent Mason. In July 2003 Mr Mason received a memorandum from the Assistant Chief Constable in reference to a Home Office Circular requiring that policing costs of football matches should be paid in full by the relevant club. In addition the Club had been promoted at the end of the 2002/03 season from Division 2 to Division 1 with the consequence that additional policing at home matches was likely to be required.
Before and during the 2003/04 season there were a number of meetings between Mr Mason and other representatives of the Chief Constable and Mrs Spencer, the Chief Executive of the Club, and Mr David Whelan, the chairman of the Club and principal shareholder in the Stadium Company, at which the representatives of the Club refused to pay for policing over and above the levels of policing enjoyed in previous seasons. Notwithstanding these objections policing was provided by or on behalf of the Chief Constable at a higher level, that is to say by the deployment of more officers than in the previous season. Such levels were discussed at pre-match safety meetings and reflected in post match invoices. Eventually the Club paid for policing at the levels provided in the previous season but at current rates. This continued for the rest of the 2003/04 season and into the 2004/05 season.
In January 2005 the Chief Constable threatened to bring proceedings against the Club for the recovery of the unpaid balance of the cost of policing actually provided. On 6th August 2005 he did so “in respect of special police services pursuant to s.25 Police Act 1996”. That section provides that:
“The chief officer of police of a police force may provide, at the request of any person, special policing services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.”
In short the Chief Constable contended that the services for which he sought payment were special policing services provided at the request of the Club in accordance with the scale of costs determined by him. By then the Club had paid substantial further sums on a without prejudice basis and counterclaimed for the return of £293,085.07.
In due course the claim came on for trial before Mann J in London in October 2007. For the reasons given by him in his detailed judgment handed down on 21st December 2007 he found for the Chief Constable (referred to throughout as “GMP”). In summary he concluded that (1) a request by the Club for such services as the Chief Constable considered to be necessary for the proper policing of a particular event should be implied notwithstanding the oft repeated refusal of the Club to pay for some of them and (2) special policing services had been provided by the Chief Constable in response to such requests. He held that s.25 did not create a statutory head of claim but that if its constituent elements were established the Chief Constable was entitled to recover on the basis of a contract to pay a reasonable sum or in restitution.
Mann J considered in detail the special policing services provided and the various sums claimed by the Chief Constable. In the light of his conclusions he invited the parties to calculate the sums due. The monetary consequence, as agreed by the parties, was that Wigan was entitled to the return of £26,955. Its counterclaim for the balance of the sum of £293,085 was dismissed but the Chief Constable obtained an order for payment of interest on that balance of £22,368.8Mann J gave permission to appeal in respect of his conclusions that (1) there was a request for the purposes of s.25 Police Act 1996 and (2) the Chief Constable had a basis for recovery either in contract or in restitution. Neither side has sought permission to appeal on any of his other conclusions. I will deal with those issues in due course, but, first, it is necessary to set out the facts as found by the judge in greater detail.
The Facts
In paragraphs 1 to 5 the judge described how the claim arose. In paragraphs 6 to 13 he dealt with the location of the stadium, the terms of its lease to the Stadium Company and its layout. In paragraphs 14 to 22 he summarised the outline arrangements for the policing of matches at the JJB Stadium. He pointed out that the extent of the requisite policing was dependent in part on the type of match, in particular the number and nature of the away team's spectators. The process starts by ascertaining the category of match to be policed. This was described by the judge in paragraph 22 of his judgment in the following terms:
“This technique [match categorisation] was adopted by forces other than GMP as well as GMP itself. The principal categorisation was an ascending order of seriousness (and therefore of policing) from A to C. Sub categories of B+ and C+ were also used by GMP. The category into which a match fell was discussed and agreed provisionally with the club before the beginning of each season, and upward or downward adjustments were made prior to each match as circumstances required. The sort of considerations involved in determining the category were the number of away supporters expected, the general reputation of the away supporters and certain undesirable contingents associated with them, the number and reaction of home supporters, ticketing arrangements, and any additional specific intelligence-related matters that affected the match in question.”
The categorisation of the match largely determined the numbers of police officers to be deployed. As the judge explained in paragraph 15 of his judgment:
“There are two important units which make up a detachment of police who police football matches. The first is a serial. This comprises one sergeant and seven constables. The second is a police support unit —“PSU”. This is three serials plus an inspector —so it is one inspector, three sergeants and 21 constables. Each match has a match commander, who will usually be an inspector but who may on some odd occasions be a sergeant. If it is a bigger match, then there will be a “bronze” commander responsible for supervising the policing of an area wider than the stadium and its surroundings. On really big matches there will be a bronze commander in the stadium, another bronze commander in charge of policing outside the stadium and to the west of the canal, and a third bronze commander responsible for policing in the city centre area to the east of the canal. Over all those, if the situation requires it, is a silver commander who has control of the overall operation, town and stadium.”
In paragraphs 17 to 21 the judge described the manner of deployment over a total of 8 areas ranging from the interior of the stadium to various pubs in the town centre and elsewhere. The charges with which this appeal is concerned were in respect of officers deployed in the stadium and its immediate surroundings, the car parks and an area called Point 5 where congestion could be caused by large numbers of fans crossing the canal. All these areas were private land. The other areas, for which no charge was made, were public such as the town centre and a retail park.
In paragraphs 23 to 29 the judge referred to the certificate held by the Stadium Company under the Safety of Sports Grounds Act 1975 and the Home Office Circular to which I have already sufficiently referred. In paragraph 30 he described the witnesses who had given oral evidence before him. In paragraphs 31 to 71 the judge described in detail the events leading up to the dispute. I need only select certain passages as relevant to this appeal. In paragraph 33 he considered the level of policing before the seasons with which this appeal is concerned. He found that:
“There was no material disagreement as to the payment of the club for policing costs until the two seasons 2003/04 and 2004/05. In...
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