Thorpe v Chief Constable of Greater Manchester Police

JurisdictionEngland & Wales
JudgeLORD JUSTICE DILLON,LORD JUSTICE NEILL,LORD JUSTICE MUSTILL
Judgment Date23 November 2010
Judgment citation (vLex)[1989] EWCA Civ J0321-1
Docket Number89/0296
CourtCourt of Appeal (Civil Division)
Date23 November 2010
Kevin Thorpe
(Plaintiff) Respondent
and
James Anderton (Chief Constable of Greater Manchester Police)
(Defendant) Appellant

[1989] EWCA Civ J0321-1

Before:

Lord Justice Dillon

Lord Justice Neill

and

Lord Justice Mustill

89/0296

1986 T. No. 10572

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

(MR. JUSTICE HODGSON)

Royal Courts of Justice.

MR. S. KHAN (instructed by Messrs. Rhys Vaughan of Manchester) appeared on behalf of the (Plaintiff) Respondent.

MR. E. SHANNON (instructed by Messrs. Sharpe Pritchard, London agents for Mr. R.C. Rees of Swinton) appeared on behalf of the (Defendant) Appellant.

LORD JUSTICE DILLON
1

The Chief Constable of Greater Manchester, the defendant in this action, appeals by leave of the judge against an interlocutory ruling in relation to discovery in the action which was given by Mr. Justice Hodgson on the 19th February, 1988.

2

The background to the action is as follows. On the 1st March, 1985 the plaintiff, Mr. Thorpe, attended what he says was a peaceful demonstration outside the Students' Union Building of Manchester University on the occasion of a visit of the Home Secretary to that building. The plaintiff was arrested by the police and taken to a local police station and detained for a while. He was charged with an offence of obstruction of the highway and was convicted in the magistrates' court. His conviction was however quashed on appeal to the Crown Court presided over by the Recorder of Manchester, and we were told that there were comments by the Recorder to the effect that it appeared that the magistrates' court had been deceived by false evidence given by at least one—if not both—of the two police officers who were concerned with the plaintiff's case. The plaintiff therefore sues the Chief Constable, as the person vicariously liable for torts committed by the two officers in the course of their duties, claiming damages for assault, unlawful arrest, false imprisonment and malicious prosecution. From the nature of the case it is likely that it will be tried by a judge and jury and not by a judge alone.

3

As a result of complaints by persons other than the plaintiff, there was an investigation of the events of the 1st March, 1985 by the Avon and Somerset Police, and because of the Recorder's comments the investigating officers opened a file in respect of the two police officers in their relationship with the plaintiff.

4

There was an application by the plaintiff's solicitors for further discovery. That came initially before the District Registrar. He made an order for discovery of (a) the custody records relating to all persons arrested by the two police officers in the vicinity of the University of Manchester Students' Union on the 1st March, 1985, (b) the record sheets which recorded the reception into police vans of the aforesaid persons after their arrest and (c) any documents pertaining or relating to the arrest of such persons. He declined, however, to grant the plaintiff any further relief. The plaintiff accordingly appealed, and his appeal came before Mr. Justice Hodgson, who ordered further discovery under two headings.

5

The first, as to which there is no appeal, covers "all evidence taken by the investigation by the Avon and Somerset Police with regard to the two police officers who gave evidence against the '[plaintiff]' in the Magistrates' Court and Crown Court proceedings save for the report of the investigating officers and counsel's memorandum."

6

The second, against which the Chief Constable now appeals, is expressed in the order of the judge as drawn up as follows:

"all documents relating to any previous convictions and/or adjudications of guilt against the two police officers who were allegedly involved in the arrest and detention of the ['plaintiff]' on the evening of the 1st March 1985."

7

It is common ground between the parties, and is borne out by the note of the judge's judgment, that the words "all documents relating to", etc. are intended to mean no more than the certificates of any convictions in any criminal courts and the comparable documents recording adjudications of guilt in police disciplinary proceedings.

8

It is conceded for the plaintiff that, even so, the disputed part of the judge's order is too wide in that it would cover matters which have no conceivable relevance to any issue in the present action. That is obvious. What the plaintiff actually seeks can be put under two headings, viz. (1) certificates of conviction and adjudications of guilt on charges arising out of the incidents of the 1st March, 1985 so far as such incidents involved the plaintiff or on charges arising out of the evidence given by the two officers against the plaintiff, and (2) certificates of conviction and adjudications of guilt on charges, not necessarily relating to the 1st March, 1985, which might support a "similar facts" line of inquiry or evidence. I refer to these as "heading (1)" and "heading (2)".

9

Conversely the Chief Constable concedes that if there are certificates of conviction by criminal courts within heading (1) they would be and should be disclosed. Such certificates of conviction would directly affect the issues in the action, in that under section 11 of the Civil Evidence Act 1968 they would be admissible in evidence at the trial and the officers would be taken to have committed the offences unless the contrary were to be proved. Section 11 does not apply, however, to adjudications of guilt in police disciplinary proceedings, and the Chief Constable's concession does not extend to such adjudications; counsel for the Chief Constable submits that a document recording an adjudication of guilt in police disciplinary proceedings would be unintelligible without the investigating officer's report and that report would be protected by public interest immunity from production at the trial or any earlier stage in the course of these proceedings.

10

Discovery is to be given, under Order 24, rule 2, of all documents "relating to any matter in question" between the parties in the action. It is very well established, however, as explained in the note 24/2/5 in the White Book that the words "relating to any matter in question between the parties" refer not to the subject matter of an action but to the questions in the action, and that any document must be disclosed which it is reasonable to suppose contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead him to a train of inquiry which may have either of these two consequences. Discovery is thus not necessarily limited to documents which would be admissible in evidence. Mr. Khan for the plaintiff refers also to Order 24, rule 8, where there is a reference, in a discovery context, to "disposing fairly of the cause or matter" and he submits that fairness requires that the Chief Constable, who has ready access to information about the criminal convictions (if any) of the plaintiff whether or not relevant to any issue in the action should disclose certificates of convictions (if any) of the two police officers on what broadly can be described as "similar facts" charges as mentioned in (2) above.

11

There are however a number of relevant limitations on the principles which I have mentioned.

12

The first is that the court should not order discovery, or interrogatories which are a form of discovery, on matters which would go solely to cross-examination as to credit. I think that Mr. Justice Walton was right, in George Ballantine & Son Ltd. v. Dixon & Son Ltd. [1974] 2 All E.R. 503 to deduce that limitation from the judgment of Lord Justice A.L. Smith in particular in Kennedy v. Dodson [1895] 1 Ch. 334, although the actual decision in Ballantine v. Dixon is better put on the different ground that the discovery sought was in itself oppressive. It would indeed be an impossible situation in my view if discovery had to be given of every document, not relevant to the actual issues in the action, which might open up a line of enquiry for cross-examination of the litigant solely as to credit.

13

In the second place, while, as Lord Herschell pointed out in Kennedy v. Dodson at page 338, there are cases in which the evidence of what happened in one transaction may be relevant to the question what happened in another, where that is not so to order discovery in respect of what may turn out to be similar fact transactions would be likely to be oppressive and so the order should not be made. That is very much emphasised in the judgments of Lord Herschell and Lord Justice Lindley in Kennedy v. Dodson. That fully justifies the decision in Ballantine v. Dixon, where the plaintiffs in their pleading alleged passing off by the defendant in the supply of whisky in named countries, and sought discovery of documents relating to the defendant's supply of whisky, and it would seem gin, to other countries.

14

Instances, to which we were referred in argument, of cases in which evidence of what happened in one transaction was relevant to the question what happened in another are Board v. Thomas Hedley & Co. Ltd. [1951] 2 All E.R. 431 and Blakeborough v. British Motor Corporation [1969] 113 Sol.Jo. 365. In those cases the issue was whether certain goods supplied by the defendants were dangerous or unfit for use and discovery was ordered of documents relating to complaints by other purchasers about similar goods supplied from the same source, and to the investigation of such complaints. Similarly in an action for damages for negligence which has caused personal injury,...

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