James Marsh v Ministry of Justice The Chief Constable of Surrey Police (Non-Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWHC 3767 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ 13X01121 |
| Date | 21 December 2015 |
[2015] EWHC 3767 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Sweeney
Case No: HQ 13X01121
and
Andrew Roy (instructed by Anthony Gold Solicitors) for the Claimant
Tim Holloway (instructed by Treasury Solicitors Department) for the Defendant
Peter Taheri (instructed by Surrey Police Legal Services) for the Non-Party
Hearing dates: 30 April 2015, 6 May 2015, 5 November 2015, 23 November 2015, 26 November 2015
Introduction
This is a claim for personal injury which arises against the background of the Defendant's employment of the Claimant as a prison guard at HMP Downview.
In short, in 2009 the Claimant complained about, and was the subject of a complaint of serious sexual assault by, a prisoner, Ms Garces-Rosero – who, it later transpired, was having an illegal affair with a Governor.
The Claimant was suspended in February 2010 pending disciplinary charges in relation to Ms Garces-Rosero's allegations, which were investigated as part of a wide-ranging Surrey Police investigation, called Operation Daimler, into crimes at the prison.
In August/September 2010 it was confirmed that no criminal charges were to be brought against the Claimant. Nearly two years later, in June 2012, disciplinary proceedings were finally held in relation to an allegation made by Ms Garces—Rosero that, around Xmas 2008, the Claimant had smacked or squeezed her buttock. The Claimant was acquitted.
It is alleged that, as a result of failures by the Defendant, involving negligence, breach of statutory duty, and breach of contract by the Defendant its employees and agents, the Claimant (who was dismissed by the Defendant on grounds of ill-health) has suffered serious psychiatric injury.
The Claimant asserts two broad areas of failure by the Defendant, as follows:
i) Failures leading up to the suspension, namely:
a) Failing properly to investigate or deal with the 2009 complaints at the time.
b) Failing to furnish police with information exculpating the Claimant.
ii) Failures relating to suspension, namely:
a) Suspending the Claimant rather than considering alternative options.
b) Keeping the Claimant suspended for 28 months.
The Claimant's letter of claim was sent on 16 March 2012, and was followed by a supplementary letter in November 2012. The claim was issued in March 2013.
Examination of the Particulars of Claim (which include a complaint about lack of pre-action disclosure), Defence (dated 5 August 2013), Reply (dated 12 September 2013), the Claimant's Part 18 request for further information and production of associated documents (dated 13 September 2013), and the Defendant's Response (dated 23 December 2013) reveals, in my view, a self-evidently widely pleaded case, the great majority of which is in dispute. The unfortunate procedural history up to the hearings before me on 30 April 2015 and 6 May 2015 is set out in a chronology helpfully provided by the Claimant – which I have added to and append to this judgment as Appendix A.
By reference to Appendix A it will be observed, inter alia, that:
i) On 18 September 2013 the parties agreed disclosure by 28 November 2013 — which the Defendant failed to make.
ii) Since then the proceedings have been marked by numerous applications by the Defendant, and Orders by the Court, extending time for the Defendant to provide disclosure.
iii) The Defendant first contacted the Surrey Police to request documentation on 26 March 2014.
iv) On 4 July 2014 Collins J made an Order in which he recorded his consideration of the necessity for, and proportionality of, disclosure having regard to the nature of the claim (which he summarised) and went on to require Surrey Police to disclose the documents or classes of documents specified in paragraph 2 of the Order by 4pm on 3 October 2014. He also ordered the Defendant to provide further standard disclosure by list by 4pm on 25 July 2014 (which was done in so far as it could be).
v) On 25 July 2014 Simon J (as he then was) vacated the then trial dates of 6–14 October 2014, and (following non-party disclosure by the Surrey Police) extended the time for further standard disclosure by the Defendant to 4pm on 24 October 2014 – with inspection by 4pm on 7 November 2014.
vi) On 19 November 2014 Singh J ordered, inter alia:
a) Surrey Police disclosure to the Defendant by 5 December 2014 of the HOLMES list of documents in relation to the Claimant, and disclosure by list of a reduced number of documents or classes of document with inspection to be provided, on request, by 16 January 2015.
b) The Defendant to provide standard disclosure to the Claimant, by way of an updated list, by 13 February 2015 and to make any application for withholding any disclosure or inspection or for any determination of whether a claim made under CPR 31.19 (3) should be withheld, by the same date.
c) A one day hearing between 14 April 2015 and 30 April 2015 to determine all issues of disclosure, inspection and related matters.
vii) On 5 December 2014 the Chief Constable of the Surrey Police duly provided disclosure by list to the Defendant, but also made an application to withhold disclosure of seven documents.
viii) By 16 January 2015 the Chief Constable provided inspection of documents, running to some 10,400 pages, to the Defendant.
ix) On 20 January 2015 there was a hearing before Phillips J, who adjourned the Chief Constable's application to withhold disclosure to 30 April 2015 and (given that no bundle or open or closed skeleton argument had been prepared) ordered her to pay the costs thrown away.
x) The Claimant granted the Defendant an extension of time for updated disclosure to the Claimant until 18 February 2015 – on which date the Defendant served its Supplemental List of documents (dated 13 February 2015) on the Claimant and made two applications as follows:
(a) For an Order permitting the Defendant to withhold disclosure and inspection of documents and/or for a determination of whether a claim made under CPR 31.19 should be withheld or disclosed on the grounds that the documents are subject to public interest immunity.
(b) For an Order (relating to third parties) permitting the Defendant to withhold, or an order permitting disclosure and inspection of documents, and/or for a determination of whether a claim made under CPR 31.19 should be withheld or disclosed to the Claimant.
xi) The Supplemental List sets out 82 documents from the Surrey Police, and 16 documents from the Defendant in relation to which there is no objection to inspection and copying; 260 documents from the Surrey Police and 13 from the Defendant where third party information has been redacted subject to third party consent and/or a court order; and 8 documents from the Surrey Police and three from the Defendant where PII is claimed in whole or in part.
xii) On 28 April 2015 the Chief Constable sought an adjournment of her application to withhold disclosure, which I refused.
The purpose of the hearings before me was thus to determine all issues of disclosure, inspection and related matters and, in particular, the application made by the Chief Constable on 5 December 2014 and the applications made by the Defendant on 18 February 2015. This therefore included the consideration of public interest issues.
The principles
To state the basics, the disclosure and inspection of documents is governed by CPR Part 31, Practice Directions 31A & B, and the relevant authorities on the topic. It is an important part of the court's overall responsibility to ensure that disclosure is proportionate (i.e. limited to what is really necessary in the particular case) in order to give effect to the overriding objective to enable the court to deal with the case justly.
As I have set out above, the Defendant was ordered to provide standard disclosure by list. By virtue of CPR 31.6 standard disclosure requires a party to disclose only the documents on which he relies; the documents which adversely affect his own or another party's case, or support another party's case; or which he is required to disclose by a relevant practice direction. CPR31.3-(2) provides that a party may refuse inspection if it would be disproportionate to the issues in the case, and CPR 31.7-(7) gives the Court wide powers to regulate disclosure.
The principles applicable to whether public interest immunity applies are set out in the judgment of Phillips J in R (on the application of X) v (1) Chief Constable of Y (2) Police and Crime Commissioner for Y [2015] EWHC 484 (Admin).
It was common ground that the leading authority as to the essential principles requiring consideration in the context of a claim that disclosure would damage the public interest is Dunn v Durham City Council [2012] EWCA Civ 1654; [2013] 1 LR 2305.
At [23] of the judgment Morris Kay LJ said:
" …First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include 'train of inquiry' points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the...
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