KSO v Commissioner of Police of the Metropolis and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 10 October 2022 |
| Neutral Citation | [2022] EWHC 2514 (KB) |
| Docket Number | Case No: QB-2019-000477 |
| Court | King's Bench Division |
[2022] EWHC 2514 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QB-2019-000477
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Westgate KC, Ms S Crapper and Mr P Kuhn (instructed by Pattinson and Brewer Solicitors) for the Claimants
KSO and KWS Mr B Cooper KC and Ms R Snocken (instructed by Slater & Gordon LLP) for the Claimant
KBS Mr J Beer KC and Mr J Dixey (instructed by Weightmans LLP) for the Defendant Commissioner
Hearing dates: 25, 26, 28 January, 1 – 4 February and 19 – 22 July 2022
Approved Judgment
| Introduction | paras 1–7 |
| Open justice and anonymity | paras 8–13 |
| The course of the trial | paras 14–22 |
| List of issues | paras 23–28 |
| CHIS handlers and controllers and recalls to duty | paras 29–53 |
| The legal framework | paras 54–119 |
| Issue 1: the four hour minimum | paras 120–156 |
| Issue 1C: completed periods of 15 minutes | paras 157–184 |
| Issue 1B: recalls and requirements to do duty for inspectors | paras 185–197 |
| Issue 7A: additional leave in lieu of duty on public holidays and rest days for inspectors | paras 199–222 |
| Issue 2: under-compensation through time off in lieu of an allowance | paras 223–228 |
| Issue 8: failure to grant additional leave – damages claim for breach of statutory duty | paras 229–265 |
| Issues 10AA and 10A: interpretation of Annex O para (5) | paras 266–279 |
| Issue 11: effect of recalls to duty outside of Annex O para (5) | paras 280–288 |
| Issue 16: timing of election for payment in lieu of additional leave days | paras 289–301 |
| Issue 36: part-time officers and completed periods of 15 minutes | para 302 |
| Issue 36A: the four hour minimum and Annex G para (3)(m) | para 303–314 |
| Issue 37: KWS's payment for duty on her free days | paras 315–325 |
| Issue 37A: KWS's entitlement if the “Type B” rate applies | paras 326–328 |
| Issues 4 and 5: on call allowance | paras 329–372 |
| The evidential issues: introduction | paras 373–377 |
| Issue 1A: length of recall | paras 378–398 |
| Issue 38: when KSO was recalled to duty | paras 399–402 |
| Issue 23: quantification of claims generally | paras 403–408 |
| Issue 23: quantification of KBS's claim | paras 409–438 |
| Summary of conclusions reached on the issues | paras 439–458 |
Introduction
KSO, KWS and KBS are the lead claimants in respect of a large number of claims concerning police officers' entitlements under the Police Regulations 2003 (SI 2003/527) (“PR 2003”) and the Secretary of State's Determinations made under the regulations. KSO is a serving police officer at all material times holding the rank of constable. KWS was a constable until her retirement. Unlike the other lead claimants she worked part-time. KBS held the rank of inspector until her retirement. Claims were initiated by more than 1,200 officers from a number of police forces. Some of these claims have been resolved. The claims have been case managed together and are referred to collectively as the Police Overtime Claims Litigation (“POCL”), pursuant to the order of HHJ Freeland QC dated 30 April 2018 (prior to the transfer of the claims to the High Court by order dated 25 January 2019).
KSO and KWS were handlers of Covert Human Intelligence Sources (“CHIS”) and KBS was a controller. The claims relate to work undertaken outside of their scheduled periods of duty for which they say that they were not paid the allowances due to them and/or granted the additional leave days that they should have received.
In Allard v Chief Constable of Devon and Cornwall [2015] EWCA Civ 42, [2015] ICR 875 (“ Allard”) the Court of Appeal held that CHIS handlers were recalled to duty in a number of identified scenarios and that a requirement to do duty or a recall to duty did not have to be as a result of an express instruction, but could occur on an occasion “which, as a result of his current orders, requires the officer to carry out a particular task” (para 21). The contemporaneous documentation indicates that pre- Allard it was not fully appreciated within the MPS that this kind of out of hours contact between a handler and a CHIS would amount to a recall to duty thereby potentially giving rise to a right to overtime payments and other entitlements. Allard was primarily concerned with when a recall to duty occurred; this litigation addresses the entitlements that arise under the PR 2003 and the Determinations when there has been an out of hours recall to duty or a requirement to duty.
There are 7 species of claim for pay or allowances before the Court:
i) Overtime claims arising from duty undertaken on normal working days between two tours of duty. This only applies to constables and sergeants as officers of the rank of inspector and above cannot claim overtime;
ii) Duty undertaken on a rest day – all officers;
iii) Duty undertaken on a public holiday – all officers;
iv) Duty undertaken on an annual leave day – all officers;
v) Duty on a free day – only applicable to part-time officers, such as KWS;
vi) On call allowance – all officers;
vii) Unsocial hours allowance – all officers.
Other than the on call allowance, the entitlements are said to arise from times when out of hours work amounting to a recall or a requirement to do duty was undertaken. The on call allowance is said to be payable because officers had to remain contactable out of hours in order to deal with these instances.
The claims for outstanding pay and allowances are brought as statutory debts. The claims arising from an alleged failure to grant additional leave in consequence of the officer having undertaken duties on rest days, public holidays, free days and/or days of annual leave are brought as actions for breach of statutory duty and, in the alternative, injunctive relief is sought (where the officer remains in service) and/or a quantum meruit. The defendant denies that any viable claim arises in these circumstances (in addition to taking issue over various aspects of the qualifying criteria).
There were originally seven lead claimants, but four of those cases have since settled. There is no Group Litigation Order, but the intention (as reflected in the order of 30 April 2018) was that, between them, the lead claims would raise all of the principal disputes of law, so that the Court's judgment in the trial of those claims would facilitate the resolution of the other cases. In light of the reduced number of lead claimants, there are some issues that were previously identified by the parties that did not arise for resolution in this trial. Nonetheless, a substantial number of disputed issues were before the Court. These issues primarily relate to the correct construction of the material provisions of the PR 2003 and the Determinations and the remedies that arise. As the 30 April 2018 order contemplated, the Court is also asked to provide guidance on a number of evidential areas. In general terms these relate to how claimants are to prove the number of recalls to duty and requirements to do duty and their duration in circumstances where the available records are not comprehensive. I detail the agreed list of issues below. The outstanding claims are stayed pending resolution of the lead claims. (Save where the context indicates that I am referring to the wider cohort of claimants, I will from now on refer to the three lead claimants as “the claimants”.)
Whilst the legal issues continued to evolve and develop during the course of the trial (as described below), the essence of the claims were set out in the Re-Amended Particulars of Claim (KSO), the Amended Particulars of Claim (KWS) and Particulars of Claim (KBS). The defendant's responses were contained in the Amended Defence (KSO) and in the Defences (KWS and KBS). In each instance the defendant also raised a counterclaim which is no longer pursued. Parts of each claim were admitted. The claimants have served detailed schedules of loss and the defendant has provided counter schedules in response. I am not asked to quantify the claims at this stage; the parties hope that with the benefit of this judgment, they will be able to agree the figures. Nonetheless it was useful for me to see how resolution of the issues before me impacted on the value of the claims. Excluding interest and leaving aside questions of taxation, KSO's schedule totals £58,442.84; KWS's schedule totals £58,311.53; and KBS's primary way of putting her claim in her schedule amounts to £171,503.26. The comparable figures from the defendant's counter-schedules are £20,325.00 (KSO), £14,401.74 (KWS) and £363.68 (KBS).
Open justice and anonymity
By orders dated 30 April 2018 and 15 March 2019, HHJ Freeland and Senior Master Fontaine, respectively, ordered that all cases in the POCL would be anonymised and the claimants referred to by ciphers. Anonymity orders were subsequently made in respect of a number of the defendant's witnesses. By order dated 15 March 2019, Senior Master Fontaine ordered that no non-party could access the court file without her consent or the consent of the parties.
As the assigned trial judge, I heard the defendant's application for the trial to be heard in private on 16 December 2021. Broadly speaking, the claimants were in agreement with the Commissioner's application. I heard the parties' submissions and gave an ex tempore judgment (subsequently transcribed). As set out in the Court's order dated 22 December 2021, I rejected the proposition that the entire trial should be heard in private, but I accepted that the evidence should be heard in private. In short summary, I was satisfied that this course was necessary pursuant to CPR 39.2(3)(b) (c) and/or (g), given that the evidence would involve detailed reference to...
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