The Commissioner of Police of the Metropolis v Abdulle and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Kitchin,Lord Justice Moore-Bick |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1260 |
| Docket Number | Case No: A2/2014/0809 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2015 |
[2015] EWCA Civ 1260
Lord Justice Moore-Bick
Lord Justice Lewison
and
Lord Justice Kitchen
Case No: A2/2014/0809
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
HQ10X00745
Royal Courts of Justice
Strand, London, WC2A 2LL
George Thomas (instructed by Metropolitan Police Service) for the Appellant
Hugh Southey QC (instructed by Hersi & Co Solicitors) for the Respondent
Hearing date: 24 th November 2015
This appeal from Hickinbottom J raises, in an acute form, the width of the discretion given to a first instance judge when deciding whether or not to strike out a claim for failure to comply with procedural rules, and the grounds upon which an appeal court can or should interfere with that exercise of discretion.
I take the background facts from the judge's judgment. On the evening of 28 February 2007, the three claimants were driving in a car in Willesden Lane, North London, when they were overtaken and forced to stop by a police car. Police officers dressed in black and holding rifles with tracing lights got out and approached them. The officers smashed windows in their car, pulled the claimants out and forced them to the ground where they were handcuffed. The claimants contend that there was no lawful justification for the use of any force against them, so that their detention and all force used against them was unlawful. In any event, they say that the amount of force used was excessive.
The claimants instructed Hersi & Co, Solicitors, to represent them; and this claim was issued on their behalf by that firm on 25 February 2010. In his Defence, the Commissioner of Police (who is responsible for all of the relevant police officers) contended that the officers' actions were lawful, because they had a reasonable – if, as is now accepted, mistaken – belief that there was an assault rifle in the boot of the car. That belief arose, it is said, primarily as the result of CCTV footage that was available to the police, which led them to believe the rifle had been put there. The Commissioner also says that the amount of force used was no more than reasonable.
The procedural history of the claim has been protracted, and beset by delays. Not all of them have been attributable to the claimants or their solicitors, but many of them have. On 28 March 2011, the matter came before Deputy Master Rose, who allocated it to the multi-track. He also refused the Commissioner's application to strike out the claim, and ordered the claimants to restore the matter for further directions after the exchange of evidence for which his order provided. However, preparations were delayed whilst the Commissioner pursued an appeal against the refusal to strike out, which was ultimately dismissed by Cranston J on 24 November 2011. He ordered the Commissioner to pay the claimants' costs of the appeal to be assessed if not agreed. No formal steps towards assessing those costs have ever been taken. As the judge observed, none of that eight month delay was the fault of the claimants.
The next step in the proceedings should have been a case management conference ("CMC"). For reasons that remain unexplained the claimants' solicitors, whose job it was to arrange that CMC, took 14 months to do so. The claimant's solicitors' attempts to lay the blame at the feet of the Commissioner's legal department did not impress the judge; and he concluded that the delay remained unexplained and that it was clear that the claimants' solicitors "were doing less than they could or should have done to move the claim on towards trial".
The CMC was eventually listed for 21 May 2013. However, unfortunately, the claimants' solicitors failed to inform the Commissioner's legal department of this date, as they should have done; and the Commissioner's Counsel was in the event unavailable. The CMC was consequently moved to 4 June before Master Cook, who then duly gave directions. He directed that liability be tried as a preliminary issue, with a trial window of 1 October to 31 December 2013, with a seven-day time estimate; and he gave detailed listing directions, including orders that (i) the claimant's solicitors apply to the Queen's Bench Listing Office for a listing appointment (paragraph 3(a)); (ii) the parties each file pre-trial checklists as directed by the Queen's Bench Listing Office (paragraph 3(f)); and (iii) no more than seven days and no less than three days before the trial, the claimants were ordered to file an indexed and paginated bundle of documents that complied with the requirements of CPR rule 39.5 and CPR 39 PD39A (paragraph 4).
There was some slippage in this timetable, although the Commissioner does not blame the claimants for any of that particular delay. The listing appointment in fact took place on 15 October 2013 when, no one attending on behalf of the claimants, the trial was fixed without reference to the claimants' dates of availability, in what was effectively a short trial window: it was ordered that the trial would begin between 6 and 12 May 2014. The judge recorded that the provision of a short window of that kind is not unusual in Queen's Bench listing: nearer the time, and after the hearing fee has been paid, the actual start date is fixed within that period. 6 May 2014 was a Tuesday, Monday 5 May being a Bank Holiday.
Notification that the trial period would begin on 6 May 2014 was sent to the parties on 17 October 2013. That notice confirmed that pre-trial checklists would be sent to the parties at least eight weeks before the trial date and, pursuant to the Civil Proceedings Fees Order 2008, on the filing of the checklist, the claimants would be required to pay the trial fee of £1,200, namely £110 for the checklist, and £1,090 for the hearing fee. On 18 February 2014, the court sent out pre-trial checklists with an accompanying notice indicating that they were required to be completed and returned on or before 31 March 2014. The claimants' solicitors did not suggest that that notice was not received. The checklist noted possible sanctions for failure to return the checklist, the existence of which was highlighted on the face of the notice.
In accordance with the notice, on 31 March, Ms Fowler, who had conduct of the action on behalf of the Commissioner, filed the Commissioner's pre-trial checklist. Before doing so, she sent a draft trial timetable by fax to the claimants' solicitors, and telephoned them to ensure that it had been received. She was told that the fax was not working that day, and so she sent it through by email. However, no claimants' pre-trial checklist or listing questionnaire was ever received by Ms Fowler, or indeed referred to in the fairly scant correspondence she received from the claimants' solicitors. Mr Hersi, the claimants' solicitor, said that he had sent the claimant's checklist to the court under cover of a letter of 2 April. Neither the letter nor the check-list has ever been found. Although the judge described Mr Hersi's evidence on this topic at [12] as "far from satisfactory" and at [35] as "rather dubious" he nevertheless accepted it.
By the week before the opening of the trial window Ms Fowler had heard nothing at all from the claimants about preparation, including the drafting of a trial bundle index, preparation of a trial bundle or arrangements for playing the available video evidence in court. She sent a chasing letter to the claimants' solicitors on 29 April, when she also telephoned the court. She was told that the listing fee had not been paid, nor the pre-trial checklist filed; but the court were contacting the claimants' solicitors and would give them written notice to pay the court fee within two days, in default of which the action would be referred to a judge to be struck out.
The claimants were now late in filing the pre-trial check list which should have been filed by 31 March 2014, and had also failed to pay the fee as required by the rules or to apply for fee remission.
CPR Part 3 .7 provides for sanctions for the non-payment of court fees. It applies both to non-payment of the fee payable on filing a pre-trial checklist and also non-payment of the hearing fee. The procedure in such a case is laid down by CPR Part 3.7 as follows:
"(2) The court will serve a notice on the claimant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the claimant has not paid it or made an application for full or part remission.
(3) The notice will specify the date by which the claimant must pay the fee.
(4) If the claimant does not —
(a) pay the fee; or
(b) make an application for full or part remission of the fee,
by the date specified in the notice –
(i) the claim will automatically be struck out without further order of the court; and
(ii) the claimant will be liable for the costs which the defendant has incurred unless...
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