Gregory v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWHC 3922 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X05068 |
| Date | 27 November 2014 |
[2014] EWHC 3922 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: HQ12X05068
John Benson QC and Rayan Imam (instructed by Thomas More) for the Claimant
Mark Ley-Morgan (instructed by Weightmans LLP) for the Defendant
Hearing dates: 10 November 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Cranston:
INTRODUCTION
This appeal concerns issues of law relating to jury trial in civil cases, in particular the need for the timely application by a party that a matter be tried with a jury rather than by judge alone. The appeal is against an order refusing the claimant's application for trial by jury in a claim for damages arising out of the claimant's arrest which he contends led to his false imprisonment and malicious prosecution. Under the Senior Courts Act 1981 there is a presumption in favour of trial by jury in such cases but an application for this must be made within 28 days of the defence.
BACKGROUND
On 20 January 2010 the claimant was arrested and detained by the Commissioner's officers. He was subsequently charged with harassment and assault of a woman. She had made a complaint and subsequently a statement. There was also a charge of harassment concerning a male. The Crown Prosecution Service issued a notice of discontinuance in these matters on 25 January 2011.
The claimant was arrested a second time on 3 October 2012. This arose as a result of a complaint made to the police by Her Majesty's Courts and Tribunal Service. The complaint was that an organisation called Charles Henry had attempted to defraud them by submitting false invoices to their National Taxing Team. The claimant is the principal and trustee of a charity called Legal Action, which trades as Charles Henry.
The claimant issued particulars of claim against the Commissioner on 29 November 2012. These were served on 11 December 2012. They contained allegations of wrongful arrest, false imprisonment, malicious prosecution and assault in relation to the two arrests. There was an Acknowledgment of Service on 13 December 2011, in which the Commissioner notified his intention to defend the claim. A defence was lodged on 8 January 2013. It rejected the allegations about the first arrest. As to the second arrest, it stated that the Commissioner was unable to respond on the basis that the allegations in the particulars of claim in relation to it were still the subject of an ongoing criminal investigation.
Because of the ongoing criminal investigation Master Yoxall stayed proceedings pursuant to a without notice application by the Commissioner on 9 January 2013. He lifted the stay on 19 March 2013 and ordered the Commissioner by 28 June 2013 to file and serve an amended defence pleading to the matters arising out of the second arrest. An amended defence doing this was lodged on 8 July 2013. It contains details of three cases where sums had been submitted to the National Taxing Team by Charles Henry. The first is for a sum of £24,574.25 in respect of the defence of the case involving the first arrest of the claimant. In essence the amended defence alleges that the three claims to the National Taxing Team were without foundation. The amended defence also states that the relevant detective inspector had reasonable grounds to suspect that the claimant had committed the offences for which he was arrested the second time on the basis of the evidence set out in the amended defence, and that it was necessary to arrest him for the prompt and effective investigation of the offence.
There was a case management conference before Master Yoxall on 24 July 2013. He ordered standard disclosure by list by 21 August 2013. The claimant did not comply with the Master's disclosure order; the Commissioner did. At that case management conference the claimant applied for trial by way of judge and jury. The Master directed that a formal application for this should be made to him in writing no later than 16 September 2013. On 13 September a formal application was made for trial by jury. Meanwhile, on 9 September 2013 the Commissioner applied for disclosure by list. At a case management conference on 14 October 2013 Master Yoxall ordered the claimant to serve a supplemental list of documents. The claimant did so. On 11 December 2013 Master Yoxall ordered that unless the claimant served amended particulars of claim positively pleading his case on malicious prosecution by 8 January 2014 the claimant would be debarred from pursuing that aspect of the claim. The claimant did not comply with this order.
On 14 January 2014 Master Yoxall heard the claimant's application for jury trial and rejected it. Before the Master the claimant's counsel contended that the time for applying for jury trial commenced with the amended defence and as a consequence the application was not out of time. After considering submissions on the law, the Master rejected this and said:
"12. Amendments go back to the date of the original proceedings. The rule is only workable if we go back to the time the original defence was lodged … The defendant now accepts that because of the stay imposed the actual date for the application was 16 April 2013."
The Master then considered whether he should exercise his discretion to order a jury trial. He said:
"14. I accept as a starting position that the claim of this kind should be tried by jury if the application is made in good time. I am not convinced that had the application been made in time I would have rejected the application on the basis that it involved a prolonged examination of documents. There is no doubt in my view that documents will be a significant feature of this case but will not result in the prolonged examination of documents. Critically the court will be required to have a ready understanding of what was involved in the system by which costs orders were made, bills prepared following criminal proceedings. The case will require consideration of the underlying documents behind the bill in order that the defendant can justify their position and the Tribunal will need a ready understanding of the preparation of the bill of costs, how the hours are compiled and how bills are submitted. It seems to me that this issue will be better looked at by a judge alone. A judge would have a much better and ready understanding of the process. I also think that this is a case where a judge alone would take less time than a jury and that the case would be more effectively conducted by judge alone."
The Master added that he had reached his decision with some hesitation since to a degree the claimant's reputation was at stake and the claimant would have preferred jury trial: [15].
On 4 February this year the claimant filed a notice of appeal against Master Yoxall's decision on jury trial, without notice to the Commissioner. Two days later, on 6 February 2014 the claimant made a without notice application for a stay. Eder J refused the stay. On 10 February 2014 the claimant issued a without notice application requesting that the order of Eder J be varied or set aside. There were listing appointments on 11 and 25 February 2014 when the Commissioner attended but the claimant did not. The claimant also failed to comply with an order made earlier by Master Yoxall as to the exchange of witness statements. On 27 February 2014, the day before the application for the set aside of Eder J's order was to be heard, the claimant withdrew the application without prejudice to it being restored. The following day the claimant made an application to restore the application.
There was a listing application before Mitting J on 3 March 2014. On 11 March the claimant attended in person before Green J on a ex parte basis, who ordered that pending a decision on the application for permission to appeal all further steps in the claim were to be stayed. On 19 March the Commissioner applied to lift the stay. There was a hearing on 7 April before Wilkie J who ordered that the stay be lifted save as it related to listing. The claimant was ordered to pay the Commissioner's costs. Three days later, on 10 April, the claimant notified a change of representation, that he was now acting in person, and made an application to go before Wilkie J. Wilkie J made no order and on 28 April the claimant made an application for permission to appeal the order of Wilkie J. That application is pending.
Swift J rejected the claimant's application to stay other matters on 11 June 2014 but granted the claimant permission to appeal the order of Master Yoxall as regards the mode of trial. On 7 July the claimant notified a change of representation: Charles Henry was now acting again on his behalf. The Commissioner's application to strike out was heard that day and Master Yoxall made an unless order that the claimant to serve witness statements by 28 July 2014. The Commissioner was again awarded costs. On 28 July 2014 the claimant applied to set aside Master Yoxall's order of 7 July 2014.
The claimant's application hearing was to take place on 22 August 2014 but he did not attend. Andrews J adjourned the application and awarded the Commissioner costs. On 5 September 2014 the claimant made an application to appeal the order to Andrews J. That application is pending. The claimant's adjourned application hearing was to take place on 10 October 2014. The claimant had failed to pay costs by 5 September 2014, as ordered, and therefore the application was struck out and the hearing did not proceed. On 23...
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