Rod James-Bowen and Others (Claimants Appellants) v Commissioner of Police for the Metropolis

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Moore-Bick,Lord Justice Longmore,Lord Justice Patten
Judgment Date30 November 2016
Neutral Citation[2016] EWCA Civ 1217
Docket NumberCase No: A2/2015/1783
Date30 November 2016

[2016] EWCA Civ 1217

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr. Justice Jay

[2015] EWHC 1249 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Vice-President of the Court of Appeal, Civil Division

Lord Justice Longmore

and

Lord Justice Patten

Case No: A2/2015/1783

Between:
Rod James-Bowen (1)
Nigel Cowley (2)
Mark Jones (3)
John Donohue (4)
Claimants Appellants
and
Commissioner of Police for the Metropolis
Defendant/Respondent

Mr. Nicholas Bowen Q.C. and Mr. David Lemer (instructed by Pattinson & Brewer) for the appellants

Mr. John Beggs Q.C. and Miss Cecily White (instructed by Weightmans LLP) for the respondent

Hearing dates: 18 th & 19 th October 2016

APPROVED JUDGMENT

Lord Justice Moore-Bick

Background

1

This is an appeal against the order of Jay J. striking out the particulars of claim and entering judgment for the respondent, the Commissioner of Police for the Metropolis, in an action brought against him by the four appellants, all of whom were, at the time of the events with which it is concerned, serving officers in the Metropolitan Police Service ("MPS").

2

The origin of the proceedings lies in the arrest of a terrorist suspect, Babar Ahmed ("BA"), in December 2003, in which each of the officers took part. BA subsequently complained that he had been seriously assaulted in the course of his arrest and subsequent detention by the police and in July 2007 he brought proceedings for personal injury against the Commissioner as the person vicariously liable under section 88 of the Police Act 1996 for torts committed by constables in his force.

3

The proceedings were conducted by the Metropolitan Police Department for Legal Services ("DLS"), an internal legal department headed by the Director of Legal Services. The Director himself and a number of his staff are qualified solicitors. Although none of the officers had been joined as defendants to the action, it must have been obvious to all concerned that, since they had been directly involved in the arrest and detention of BA, it would be necessary for them to give evidence on behalf of the Commissioner if the claim were to be successfully defended. Moreover, their personal reputations and standing within the MPS were liable to be affected by any findings that the court might in due course make. To that extent, therefore, they had a close personal interest in the proceedings.

4

Following service of particulars of claim on behalf of BA, the DLS instructed counsel to advise and act on behalf of the Commissioner in connection with the proceedings. On 10 th January 2008 the Commissioner made an offer to settle the claim, but it was rejected by BA. On 18 th March 2008 the officers attended a conference with counsel, in the course of which it is alleged that he and the representative of the DLS who was present said that the legal team was acting for and in their interests, which they would protect, and that BA's claims would be vigorously defended. The names of the second, third and fourth appellants as being officers involved in the arrest of BA had been made public in early 2005, but photographs of them had not been published, and because of the threat which they considered supporters of BA represented to themselves and their families, the officers were anxious that they should not be required to give evidence in open court unless special measures were put in place to conceal their identities. It is said that in the course of the conference on 18 th March 2008 counsel assured the officers that they would not be called to give evidence unless special measures of that kind were put in place. The trial of BA's action was fixed for March 2009.

5

In the event, an application for the use of screens to protect the officers while giving evidence was rejected on 13 th February 2009. There was a further conference with counsel on 11 th March 2009, at which the officers were again present together with a representative of the solicitors Russell Jones and Walker. It is said that in the course of that conference the view was expressed that the claim was unlikely to be successfully defended. It is also said that the DLS made it clear that it was no longer acting on their behalf. The officers reiterated that they were reluctant to give evidence unless special measures were put in place.

6

The trial of BA's action began on 16 th March 2009 and on 18 th March 2009 the Commissioner agreed to compromise the claim on terms which included a consent order, the recital to which admitted all (save one) of the 22 allegations of gratuitous violence, and a public apology demanding an investigation into the officers' refusal to give evidence and other conduct. In August 2010 the appellants were charged with various criminal offences arising out of the arrest of BA, but, after a hearing lasting five weeks, the jury, after a very short retirement, acquitted them of all charges.

The present proceedings

7

The present proceedings were begun in the Mayor's and City of London Court in January 2014 and were subsequently transferred to the High Court. In them the officers seek to recover damages against the Commissioner for reputational, economic and psychiatric harm suffered as a result of errors made by both the MPS itself and the DLS in the preparation and conduct of the defence to BA's claim. They contend that the Commissioner's admission of liability and his public apology unfairly branded them as abusive thugs, which resulted in their being required to undergo the stress of a criminal trial and damage to their prospects of promotion.

8

On 28 th April 2014 the Commissioner applied for an order that the officers' claim be struck out pursuant to CPR rule 3.4(2)(a) or that summary judgment be entered against them pursuant to CPR rule 24.2(a)(i) and (b). He also applied for an order pursuant to CPR rule 3.4(2)(a) striking out certain paragraphs of the particulars of claim which, he contended, pleaded or relied on matters protected by legal professional privilege, but that application was adjourned pending a decision on the two primary applications. The applications were heard by Jay J., who struck out the particulars of claim in their entirety and entered judgment for the Commissioner.

The applications

9

Before turning to consider the parties' submissions and the issues to which the appeal gives rise it is necessary to say a little about the nature of the applications with which the court is concerned. CPR rule 3.4(2)(a) provides as follows

"The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;"

10

By contrast the material parts of CPR 24 provide as follows:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; … and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

11

Although defendants seeking to challenge claims at an early stage often seek to rely on both Part 3 and Part 24 (as in this case), it is important to appreciate that they provide different grounds of relief. Rule 3.4 is concerned with striking out defective statements of case, principally statements of case that disclose no reasonable grounds for bringing or defending the claim. An application under rule 3.4(2)(a), therefore, requires the court to examine the statement of case in order to decide whether the allegations it contains are, if established, capable as a matter law of supporting the claim or providing a defence, as the case may be. It does not involve an examination of the evidence that may be called in support of the pleaded case.

12

Part 24, by contrast, is concerned with the prospects of success. It proceeds primarily on the assumption that the statement of case is not defective as a matter of law, but that the pleaded case has no real prospect of being made good at the trial. Inevitably the two overlap when the pleaded case is said to be bad in law, because a case which is bad in law has no prospect of success, but in principle it is desirable not to confuse the different procedures.

The nature of the officers' case

13

The essence of the officers' case is that the Commissioner let them down badly by failing to defend BA's claim in a robust and efficient manner and instead undermining their emotional, physical and economic well-being by admitting and asserting publicly that they had behaved in a reprehensible manner, when that was the opposite of the truth. They formulate the claim in four ways: breach of a retainer to protect their interests; breach of a duty of care arising at common law from the relationship between themselves and the Commissioner corresponding to that of employer and employee; breach of a duty of care at common law arising from an assumption by the Commissioner of a responsibility to protect their interests; and misfeasance in public office. The last of these was abandoned by Mr. Bowen Q.C. in the course of argument and I need say no more about it. It is convenient to consider the other three limbs of the claim separately, although the different ways of putting the case are to some extent interrelated.

14

Some of the ways in which the case is put appear at first sight to lie outside the scope of established legal principles, but Mr. Bowen submitted, and I fully accept, that the court should be cautious about striking out at an early stage claims which raise novel questions of law or questions which lie in areas of the law that are currently developing. On the other hand, if the court is satisfied that the case as pleaded...

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