NAB v Serco Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 16 April 2014 |
| Neutral Citation | [2014] EWHC 1225 (QB) |
| Court | Queen's Bench Division |
| Date | 16 April 2014 |
| Docket Number | Case No: HQ11X04387 |
[2014] EWHC 1225 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Bean
Case No: HQ11X04387
Mr Guy Vassall-Adams (instructed by Guardian News & Media Ltd Legal Department) for Guardian News & Media
Jeremy Johnson QC (instructed by DWF LLP) for Serco Ltd
The Claimant and the Home Office did not appear and were not represented.
Hearing dates: 07 February & 04 April 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.
Guardian News and Media Ltd ("the Guardian") apply under CPR 31.22(1) for a declaration that NAB, the Claimant in a civil action against Serco Limited and others, may lawfully supply the Guardian with a copy of a document disclosed by Serco in those proceedings; or alternatively for permission to have the document supplied to them by the Claimant's solicitors. Serco resist the application and in the alternative cross-apply for an order under CPR 31.22(2) prohibiting the Claimant and her solicitors from supplying the document to the Guardian or others.
NAB was from 4 th October 2010 until 17 th February 2011 an immigration detainee at Yarl's Wood Immigration Removal Centre, which is and was operated by Serco Ltd. In January 2011 she made a complaint alleging that on three occasions in the preceding two months at Yarl's Wood she had been sexually assaulted and harassed by a male nurse (whom I will call "T") employed by Serco.
Serco appointed their deputy head of security and operations to investigate the alleged inappropriate behaviour by T towards the claimant. A report, each page of which is marked "Serco in Confidence", was produced on 21 st January 2011.
On 24 th November 2011 NAB issued a claim for damages in this court against three defendants: Serco, the Home Office and the Chief Constable of the Bedfordshire Police. Her claim against Serco was in respect of the three alleged sexual assaults by T referred to above, and argued that "each and every touching of the Claimant by [T] which was not justified by his professional role amounted to a battery for which the First Defendant is vicariously liable."
Against the Home Office NAB claimed damages for false imprisonment in respect of all or part of her period of detention. The claim against the Bedfordshire Police was based on an allegation that they failed to conduct an effective investigation of the assault allegations: it was settled at an early stage and I need say no more about it.
Following the close of pleadings in NAB's claim Serco served lists of documents on 15 th April and 4 th June 2013. On 16 th May 2013 the claimant's solicitor Harriet Wistrich made a witness statement in what was still at that stage a claim against both Serco and the Home Office. Paragraph 2 records that the purpose of the statement was to set out the steps taken by NAB to complain about the conduct of the nurse who assaulted her and about the investigations into her original complaint. She exhibits 15 documents to her statement including the Serco internal investigation report. She refers to it in paragraph 12 of her statement:-
"I have now seen their investigation report and have to say I find some of the conclusions extraordinary. … At D7 it is stated that the allegations "are very detailed and appear to be consistent each time [NAB] has relayed them". The suggestions seems to be that there is something suspicious about her consistency. I have to say, though, this is the first time I have ever come across an analysis that a claimant may be lacking in credibility because of her consistency; normally credibility is questioned when a claimant is inconsistent."
On 7 th June 2013 Serco settled NAB's claim against them by the payment of a sum in damages. On 18 th June the claimant's solicitors wrote seeking Serco's permission to disclose the report to third parties and stating that they intended to make an application to the court in the event that Serco did not agree.
The Home Office was now the only remaining defendant. The claim against the Home Office for damages for false imprisonment proceeded to a trial which took place before His Honour Judge Sycamore (sitting as a judge of the High Court) from 8–10 July 2013. The report remained an exhibit to one of the witness statements, and as such was in the trial bundle; but it was not referred to in the skeleton arguments or reading lists lodged by counsel before the trial. I accept Mr Johnson's submissions that it was not relevant to the issues which the judge had to try between NAB and the Home Office.
By a reserved judgment handed down on 30 th August 2013 Judge Sycamore held that the claimant was detained unlawfully from 3 rd to 17 th February 2011 but otherwise rejected the claim for false imprisonment. He heard evidence from the claimant, Ms Wistrich and three witnesses employed by the Home Office. His judgment contains criticisms of the claimant whom he found to be an "evasive" witness, and "quick to blame others for the provision of false and misleading information".
In paragraph 50 he noted that the claimant had not pleaded any cause of action against the Home Office relating to alleged failures in the investigation of her complaints of sexual assault, adding:— "the original claim was also against Serco and the Chief Constable of Bedfordshire Police. The claim against this defendant is limited to the tort of false imprisonment."
The report itself is not mentioned in Judge Sycamore's judgment. At paragraph 18 he notes that following the complaint by the claimant on 8 th January 2011 Serco recorded that complaint "and began an investigation".
Immediately after judgment had been handed down NAB's solicitors wrote to Serco asserting that their client was now free to disclose the report to third parties. Serco disputed this. After further correspondence between the solicitors for NAB and for Serco, on 29 th October 2013 the legal department of the Guardian wrote to Serco stating that they were "aware" of the investigation report having been an exhibit to a witness statement which had formed part of the evidence in the trial, and saying that unless Serco agreed that the report was now a public document the Guardian would make an application to the court. Serco's response was that the report had not been referred to in Judge Sycamore's judgment and was not a public document.
The without notice application of 10 December 2013
On 10 th December 2013 the Guardian issued an application notice seeking:
"a ruling that a document disclosed by the Respondent to the Claimant NAB in the above proceedings (the Serco investigation report) is a pubic document under CPR 31.22(1)(a) and/or that the Claimant's legal representatives are granted permission to provide the report to the Applicant under CPR 31.22(1)(b) and/or that the Applicant is entitled to a copy of the report from the court file under the principles in Guardian News and Media Limited v City of Westminster Magistrates' Court."
June Sheehan, a solicitor employed by the Guardian, made a witness statement in support of the application. A copy of Judge Sycamore's judgment was exhibited. Ms Sheehan's witness statement summarises paragraph 18 of that judgment as recording that in January 2011 the claimant had reported that she had been sexually assaulted on three occasions "and that Serco recorded an official complaint and began an investigation which culminated in a report". This paragraph was inaccurate. It is true that Judge Sycamore's judgment noted that Serco had recorded the claimant's complaint and begun an investigation. It is also true that Serco's investigation culminated in a report. But the fact that the investigation had culminated in a report was not stated in Judge Sycamore's judgment.
Ms Sheehan attended before Master Roberts with a document headed "Draft Order" which included the following:-
"Upon hearing counsel for Guardian News & Media Ltd and counsel for Serco
IT IS ORDERED that for reasons given in the judgment dated ……. the report is a public document under CPR 31.22(a)".
An application under CPR 31.22(a), unless made with the written consent of the respondent, must be heard on notice. Nevertheless, and despite the inclusion in the draft order of the words "and upon hearing…… counsel for Serco", the Master dealt with the application there and then on a without notice basis. The date of 10 th December 2013 was inserted and the order was sealed the same day. On the strength of this, and before the order had even been served on Serco, the claimant's solicitors provided the Guardian with a copy of the report. At this point the error was spotted. On 12 th December Ms Sheehan again attended at court (this time before Master Yoxall). The previous order was amended to delete the reference to Serco having been represented and to give the opportunity to them to apply to vary or set it aside within seven days. The next day Master Leslie stayed the order of Master Roberts altogether.
Serco were notified shortly afterwards of what had occurred. On 18 th December the Guardian undertook not to publish the contents of the report without giving notice. They subsequently returned it to Serco, although it has been made available to counsel and solicitors acting for the Guardian for the purposes of this application.
Ms Sheehan has apologised for the unfortunate and unintended inaccuracy in her witness statement of 10 th December. Serco, through Mr Jeremy Johnson QC, accept that she did not intend to mislead the court, as do I. But Serco understandably complain...
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