Leeds United Football Club Ltd v Chief Constable of West Yorkshire Police
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWHC 2738 (QB) |
| Date | 01 August 2014 |
| Docket Number | Case No: HQ11X01926 |
| Court | Queen's Bench Division |
[2014] EWHC 2738 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ11X01926
Michael Beloff QC and Mark Gay (instructed by Burges Salmon LLP) for the Claimant
John Beggs QC and James Berry (instructed by West Yorkshire Police Legal Services) for the Defendant
Hearing dates: 16–17 June 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.
In July 2012, I ruled that the Claimant ("LUFC") had been charged for special police services ("SPS") over the three preceding football seasons, in respect of home matches, on a basis that was in part unlawful: [2012] EWHC 2113 (QB). It thus became necessary to find a methodology by which to calculate the appropriate rebate. It did not prove possible for the parties to agree a formula. Each, therefore, proposed a distinct methodology and sought to persuade the court of its merits. These proposals yield answers which Mr Beloff QC described as "dramatically" different. It is now for me to consider their respective merits and to try to find a means by which to calculate figures which approximate as closely as possible to the loss actually suffered. In the meantime, the Defendant ("WYP") has paid LUFC £1,238,816.61 which is said to represent the total loss including interest. LUFC, on the other hand, seeks a further £844,016.36 plus interest (to include claims in respect of 2012–13 and 2013–14).
Although the background is fully set out in my earlier judgment (and in that of the Master of the Rolls on appeal) I need briefly to summarise it so that the rival methodologies can be understood in context.
Following the onset of the recession, WYP decided to try and recover more for the public purse in respect of their regular deployments for matches at Elland Road. They sought to charge not only for policing within the stadium (as had been the position up to the 2008–9 season) but also over a wider geographical area (described as the "extended footprint"). The relevant area extended more widely than any land owned, leased or controlled by LUFC. It was thought by WYP that, since the need to police the fans and visitors in such areas was attributable to LUFC matches, it was only fair that it should foot the bill rather than meeting the cost out of diminishing public funds. It was ultimately held, however, by me and by the Court of Appeal on 7 March 2013, that a proportion of these policing services fell within the WYP's ordinary responsibility for public order policing and that SPS could only properly be charged (under s.25 of the Police Act 1996) in respect of services that were provided on land owned, leased and controlled by LUFC: see also Harris v Sheffield United Football Club Ltd [1988] 2 QB 77.
It thus became necessary to find a means of filtering out those parts of the SPS paid for by LUFC which strayed impermissibly into extraneous areas (the "extended footprint") and to ensure that LUFC would only reimburse WYP in respect of services in the area defined as legitimate. It is impossible to achieve this objective with complete accuracy and I have to find a method which will approximate most closely. As I have already noted, WYP traditionally only charged in respect of services rendered within the stadium itself (access to which requires a ticket). In the light of the judgments, however, it became apparent to WYP (if it was not already) that SPS could additionally be charged for in certain areas outside the stadium if they happened to fall within the definition of being "owned, leased or controlled" by LUFC. That was a formula to be found both in my judgment and in that of the Court of Appeal, and the Assistant Chief Constable, Mr Milsom, told me that he focused on this when trying to arrive at the appropriate rebate in 2013. He and his colleagues, therefore, came up with a methodology which was intended to enable them to repay what had been overcharged while, at the same time, not conceding any charges that had been made legitimately.
Even after the judgment was handed down, on 24 July 2012, there were disputes as to how the charging for SPS should be made in respect of the seasons 2012–13 and 2013–14. I am invited by the parties to resolve those issues also.
The methodology favoured by WYP for calculating the overpayments for the three previous seasons (2009–2012) was intended to identify the element of all relevant match-day policing operations in respect of which a charge was unlawfully made. The cost of this element, if it can be reliably calculated, will represent the appropriate rebate. So far, so good. Their starting point, however, proved to be more controversial. It was to define the overpayments by reference to the judgments and thus to identify the charges made in respect of operations carried out on any land not owned, leased or controlled by LUFC. This approach is challenged by LUFC.
I received evidence as to how the calculations were carried out from Mr Milsom, from Mr Mark Reeves and from Ms Helen Royan. They selected the charges made for the middle season (2010–2011), since in the first season LUFC was only charged at half the full rate by way of a concession. This was because, by the time the club became aware of the increased charging policy by way of the "extended footprint", ticket prices had already been set.
As I explained in the 2012 judgment, games were categorised in the light of past experience according to the risk of disorder occurring. Police charges would increase correspondingly. The lowest risk category is A. Categories B and C were sub-divided to allow for games labelled by reference to increased risk ("IR"): altogether there were some seven categories. Mr Milsom said that this was intended to pinpoint risk, and therefore policing requirements, with the greatest accuracy. It should thus tend to minimise the possibility of over-or under-charging.
At the next stage, however, there arises a considerable degree of uncertainty and speculation. Operational orders were studied for sample games selected in each of the risk categories or, as Mr Beloff prefers to put it, "cherry picked". At all events, once the cost of policing for the sample games had been arrived at on the basis of the operational orders, that element thought to be attributable to extraneous land would be deducted from the actual charge made for the match in order to arrive at the correct rebate. The percentage difference between the two was applied across all games in that risk category. From the LUFC point of view, this methodology is vague and lacking in transparency. It is difficult to check with any degree of confidence and involves taking WYP's assumptions (in particular, as to the similarity between games) on trust. While I readily acquit the personnel at WYP of any lack of good faith (as did Mr Beloff), the methodology does involve a degree of assumption and speculation which LUFC submits is unacceptable.
Some games were approached individually rather than on a sample basis. These were either Bank Holiday games or those categorised as giving rise to a more serious risk of disorder (C+IR). Therefore, in order to achieve greater accuracy, operational orders for each match were studied separately and the cost of operations on extraneous land worked out (on the assumption that the orders were complied with to the letter and on the basis of the appraiser's speculation as to how the order would have been carried out, with what number of officers deployed and where).
It was on the basis of this methodology that WYP repaid the rebate it thought due and claims now that no more is owed. As a matter of principle, however, it cannot be appropriate for the court to quantify loss on the...
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