TPKN v The Ministry of Defence

JurisdictionEngland & Wales
JudgeMr Justice Sweeney
Judgment Date12 June 2019
Neutral Citation[2019] EWHC 1488 (QB)
CourtQueen's Bench Division
Docket NumberCase No: QB/2018/0125
Date12 June 2019

[2019] EWHC 1488 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ON APPEAL FROM MASTER THORNETT DATED 16 MARCH 2018

CASE NUMBER HQ15XOO868

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Sweeney

Case No: QB/2018/0125

Between:
TPKN
Claimant/Appellant
and
The Ministry of Defence
Defendant/Respondent

Ms Una Morris & Ms Camila Zapata Besso (instructed by Hodge Jones and Allen Solicitors) for the Claimant/Appellant

Mr Jonathan Dixey (instructed by Government Legal Department) for the Defendant/Respondent

Hearing dates: 12 February 2019

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.

THE HONOURABLE Mr Justice Sweeney

Mr Justice Sweeney Mr Justice Sweeney

Introduction

1

This is an appeal by permission of Murray J (granted at an oral hearing in October 2018) against the Judgment and Order of Master Thornett (both of 16 March 2018) in which he:

1) Granted the Defendant / Respondent (hereafter the Defendant) summary judgment on the whole of the claim on the basis that the Claimant / Appellant (hereafter the Claimant) had no real prospect of succeeding on her claim on the ground that the Defendant was not vicariously liable to her.

2) Struck out paragraphs 55–58 of the Claimant's Amended Particulars of Claim on the basis that they did not disclose any reasonable grounds for bringing a claim of misfeasance in public office.

2

The appeal involves three issues, namely whether:

1) The Master erred in granting the Defendant summary judgment on the basis that it was not vicariously liable to the Claimant.

2) The Master erred in striking out paragraphs 55–58 of the Claimant's Amended Particulars of Claim.

3) Even if the Master did err in striking out paragraphs 55–58, that aspect of the case was disposed of in any event by reason of his findings on vicarious liability.

3

For reasons set out shortly below, I have no doubt that the Master did err in striking out [55] – [58] of the Claimant's Amended Particulars of Claim. It was common ground between the parties that, in the event of my reaching that conclusion, the outcome of the appeal would turn on the resolution of the first issue.

Background

4

The Claimant is now aged 42. She began her service in the Royal Navy in September 2003 and was stationed at the Devil's Tower Camp (“the base”) in Gibraltar from July 2011 onwards, ultimately in the rank of Leading Hand (the equivalent of a Corporal). The base had accommodation for around 400 personnel.

5

The claim arises out of events at the base in the early hours of Wednesday 16 May 2012 when the Claimant alleges that, after a social Tuesday night out with TS (a Private serving in the British Army, who had been based at the base for a short time as part of a training exercise, and who the Claimant had first met in April 2012) and others they had returned to the base where, after the others had retired, TS had given her a shot of what she had understood at the time to be rum, after which she remembered very little other than that TS had raped and sexually assaulted her.

6

The Claimant did not report the offences at the time (because of previous negative experiences of reporting a rape whilst serving in the Royal Navy, and her perceptions of how she would be treated) nor when she later discovered that, as a result of the offences, she was pregnant. She informed the Navy that she was pregnant in or around July 2012. In October 2012 the Claimant returned to the UK where, in February 2013, she gave birth to her daughter.

7

In May 2013 the Claimant reported to a civilian doctor that she had been raped and sexually assaulted. In November 2013 the Claimant reported the offences to the Wiltshire Police, and an investigation began. In February 2014 the Claimant made a Service Complaint (which was ultimately withdrawn in June 2014) about the rape and the treatment that she had received thereafter – as to which she alleged that, rather than receiving adequate support from the Royal Navy, she had received poor treatment and perceived that she had been discriminated against due to her gender and pregnancy, her sexual orientation, her psychiatric symptoms and her ethnicity.

8

The Claimant left the Royal Navy in October 2014. In January 2015 Wiltshire Police referred their investigation of the alleged rape to the Crown Prosecution Service (“the CPS”) for pre-charging advice. It concluded that it had no jurisdiction over the case because the alleged offence had been committed in Gibraltar – where the Sexual Offences Act 2003 did not apply. Wiltshire Police thereafter referred the investigation to the Service Police.

9

A Letter of Claim was sent to the Defendant on behalf of the Claimant in February 2015. The Claim was issued in February 2015 and the Claim Form was served in June 2015.

10

In October 2015 the Service Prosecuting Authority (“SPA”) determined that there would be no prosecution of TS in relation to the alleged rape and sexual assault – noting, the Defendant asserts, that: “ the fine detail of the surrounding circumstances of the complaint has a tendency to undermine rather than strengthen the prosecution case”. Thereafter the Defendant served a Letter of Response to the Claimant's Claim in January 2016.

11

In May 2017 the Claimant filed and served Particulars of Claim, a Medical Report and Schedule of Special Damages. In [44] of the Particulars it was asserted that, by reason of the history (as broadly summarised above):

“…the Defendant, by reason of the conduct of TS in Gibraltar, is liable to the Claimant in assault and battery and misfeasance in public office”.

Particulars of assault and battery were set out in [46] – [49]. In [50] it was asserted that further, and/or alternatively, the Defendant was liable to the Claimant for misfeasance in public office, the particulars of which were set out in [51] – [53]. In [54] it was asserted that:

“In all the circumstances, there was a close connection between the acts in question and TS's performance or purported performance of his service in the British Army, so that the Defendant ought to be held liable for those acts”.

Particulars of personal injury, loss and damage were set out in [56] – [62], and in [64] it was asserted, for reasons set out therein, that aggravated and exemplary damages were appropriate.

12

In early July 2017 the Defence was filed and served. In [2] the Defendant asserted that:

“Insofar as the Claimant proves that she was raped by TS on 16 May 2012, as to which the Defendant is unable to make admissions, TS was not acting in the course of his employment. There is no connection, or no sufficiently close connection, between the nature of TS's employment and the alleged assault of the Claimant”.

The Defendant also made clear in [3] that it pleaded to the Particulars of Claim without prejudice to the contention that they fell to be struck out pursuant to CPR 3.4(2) as disclosing no reasonable grounds for bringing the claim. Thereafter it was variously denied that the Defendant was responsible for the acts and omissions of its personnel that did not have any, or any sufficiently close, connection with their employment; that at the material time TS was acting under the direction and control of the Defendant and/or acting in the performance of his duties; that the content of [1] – [44] of the Particulars disclosed any basis upon which any actions of TS which the Claimant might prove had any, or any sufficiently close, connection with TS's employment for the purpose of holding the Defendant vicariously liable for them; that the matters set out in [51] & [52] of the Particulars were sufficient to establish that the alleged rape amounted to the exercise of power as a public officer; and that the Claimant was entitled to aggravated and exemplary damages. It was asserted that, in so far as TS was stationed at the base at the material time, it was in a capacity that was unconnected with the Claimant's role.

13

As indicated, the Defendant also made an application for strike out (pursuant to CPR 3.4(2)(a)) upon the ground that the statements of case disclosed no reasonable grounds for bringing the claim, and/or summary judgment on the whole of the claim (pursuant to CPR 24.2) upon the ground that the Claimant had no real prospect of succeeding on the Claim and there was no other compelling reason why the case should be disposed of at a trial. The application was supported by a witness statement from Mr Andrew Kelly of the Government Legal Department who indicated that it was understood that in interview during the police investigation TS had admitted that he had had sexual intercourse with the Claimant but had asserted that it was consensual. Mr Kelly asserted that the prosecution file disclosed matters which tended to undermine the Claimant's account of what had happened.

14

The grounds for strike out / summary judgment that Mr Kelly advanced were that:

(1) Whilst he had regard, in particular, to the observation of Ward LJ and Tomlinson LJ in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2013] QB 722, to the effect that vicarious liability is a fact sensitive issue, there were no pleaded facts, and no additional facts known to the Defendant but not pleaded, which could give rise to a finding of vicarious liability.

(2) In Various Claimants v Catholic Child Welfare Society & Ors [2012] 3 WLR 1319 at [34] the Supreme Court had confirmed that the criteria that had to be satisfied for the imposition of vicarious liability were, firstly, consideration of the relationship between the individual tortfeasor and the party said to be liable to see if it was capable of giving rise to vicarious liability; and, secondly, to consider the connection that linked the...

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