Wilding v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HENRIQUES |
| Judgment Date | 11 November 2004 |
| Neutral Citation | [2004] EWHC 3042 (QB) |
| Date | 11 November 2004 |
| Court | Queen's Bench Division |
| Docket Number | HQ/04/802 |
[2004] EWHC 3042 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Henriques
HQ/04/802
JEREMY CARTER-MANNING QC (Instructed by Kaim Todner) appeared on behalf of the CLAIMANT
JASON BEER (Instructed by the Metropolitan Police Legal Department) appeared on behalf of the DEFENDANT
I give a preliminary judgment relating to matters which have been placed before me this morning. Mr Carter- Manning QC, who has very recently been instructed on behalf of the claimant, submits that by reason of matters which he has advanced to me that I should, at this stage, recuse myself from continuing to hear these applications. In practical terms, that I should not give judgment.
The grounds advanced by him in short form are these. The claimant himself, Mr Wilding, asserts that at some time in the past, when I was at the Bar, that I represented his father who was sentenced to a term of 12 months imprisonment for an offence or offences of dishonesty. Thereafter, I am told—although I have no recollection whatsoever either of representing his father or indeed of this subsequent event—namely, that upon a train between London and Preston I met the claimant himself, a conversation took place relating to the claimant's computer, and apparently I asked him to give certain greetings to someone we both knew.
The third matter raised by Mr Carter-Manning is that at one stage, whilst a serving police officer, the claimant had certain responsibilities with the Lancashire Constabulary in Liverpool. At that time I was Queen's Counsel, practising on the northern circuit, in Liverpool on occasions, and apparently the claimant was aware of that, and, by reason of that fact, added to the other facts, contends that this is a situation where there is an apparent bias against him.
On behalf of the defendant, Mr Beer opposes this application. He points out that the issues before me in the seven applications are legal issues and pure issues of law. There was no evidence filed before me. There was no issue as to the veracity of the claimant. I had to make no judgment concerning the claimant personally. The further point that no doubt Mr Beer would have taken had I not taken it in advance, is that at no stage during the hearing, which lasted for approximately five hours, was any suggestion made that I should recuse myself, or that for any reason at all I was not an appropriate judge to try this action.
It should be noted that by reason of the nature of this action, various criticisms were made by me of the claimant's solicitors during argument. In relation to certain aspects of this claim, they were in an untenable position. Indeed, in relation to the claim in contract, counsel then acting for the claimant, Mr Simblett, conceded that his case was unarguable.
In relation to various other matters, not least the contents of the claim form, the claimant will have heard criticism falling from my lips.
He can have been in no doubt by the conclusion of the proceedings that in relation to the sum of these applications, the defendant was highly likely to succeed.
I have reminded myself, before giving this judgment, of the law so far as it relates to bias and so far as it has been stated in the House of Lords decision in Goff [1996] AC at 746, and in the Court of Appeal in Re: Medicaments and Related Classes of Goods (No.2) [2001] 1WLR at 700.
A judge should recuse himself if he has been influenced by actual bias. In an appellate capacity, where actual bias has not been established, the personal impartiality of the judge is to be presumed. An appellate court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside.
Material facts are not limited to those which were apparent to the appellant. They are those which are ascertained upon investigation by the court. An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice. Whether or not there was a legitimate fear that the judge might not have been impartial will depend on whether a fair-minded and informed observer would conclude that there was a real possibility or real danger, the two being the same, that the judge was biased.
The material circumstances will include any explanation given by the judge under review as to his knowledge of those circumstances, where that explanation is accepted by the appellant it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the view point of the fair-minded observer.
The appellate court does not have to rule whether the explanation should be accepted or rejected, rather it has to decide whether a fair-minded observer would consider that there was a real danger or real possibility, the two being the same thing, of the same thing, namely of bias.
I ask myself the same question that an appellate court must ask of itself. In my judgment no fair-minded observer, even if they concluded that I had represented the claimant's father and I had met the claimant on a train, and the claimant had known of me in my capacity of an advocate on the northern circuit, no fair-minded observer could possibly conclude that any one of those factors gave rise to any bias against the claimant.
The fact that this matter was not raised may, of course, be attributed to and be the responsibility of counsel then representing the claimant.
However, had these matters been canvassed before me at the commencement of the proceedings, my judgment would be as it is now. There is no basis for bias in this case. I am not biased against the claimant. And I decline to recuse myself.
Mr Carter-Manning did ask that I adjourn this case so that he could further refine his arguments and familiarise himself with the facts of the application. I declined such an adjournment. I am perfectly satisfied that he has put before me any matter which could give rise to bias. He has heard Mr Beer and myself describe the nature of these applications. They touch upon technical matters of pleading.
As a matter of courtesy, or indulgence, had it been convenient to grant further time then I would have done so, subject, of course, to ensuring that the defendants were not disadvantaged in terms of costs.
However, I have fixtures to attend in different parts of the country. I can see no possible benefit in any adjournment. For that reason I have not only declined the adjournment, I ruled upon the application.
There are in total nine applications before me. The defendant, the Commissioner of Police of the Metropolis, applies to strike out certain paragraphs of the particulars of claim, pursuant to CPR part 3.4. The grounds vary as between each application. There are claims for malicious procurement of a search warrant; for trespass to land; a claim in negligence relating to the suspension of the claimant from police duties; a claim in misfeasance in public office, relating to the suspension of the claimant from police duties; a claim for false imprisonment; a further claim in negligence relating to the conduct of the disciplinary investigation and proceedings; a further claim in negligence relating to the failure to include the usual phrase on the claimant's long service and good conduct medal certificate.
The eighth application can be disposed of in short measure. It seeks to strike out the particulars of claim on the grounds pursuant to CPR part 3.4(ii)(a). It discloses no reasonable grounds for bringing a claim against the Commissioner of Police of the Metropolis. The claim was originally commenced by claim form, dated 25 January 2001, against Metropolitan Police Force, there being no such legal entity.
In due course the claim form was amended with permission of Master Tennant on 23 May 2001 to substitute: "The Commissioner of Police of the Metropolis."
The particulars of claim, dated 28 and 29 July 2004, describe the defendant as "Commissioner of Police". Again, there is no such legal entity. An informal application has been made to me to permit the particulars of claim to be amended to describe the defendant as the Commissioner of Police of the Metropolis. It is not opposed and I have granted permission.
Finally, in the event of any part of parts of the particulars of claim surviving these applications, there is an application for a stay of the proceedings, pursuant to CPR part 3.2, firstly on the grounds that in breach of paragraph 4.3 of the practice direction to CPR part 16, requiring him to attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries he alleges in paragraph 23 of the particulars of claim; secondly, that in breach of the same practice direction, the claimant has failed to attach to the particulars of claim a schedule of any past and future expenses and losses which he claims.
The claimant is a former police constable in the Metropolitan Police. On 27 January 1998 he was suspended from duty pending an investigation pursuant to part (ix) of The Police and Criminal Evidence Act 1984 and the Police Discipline Regulations 1985. It is alleged inter alia that as a result of his suspension he has suffered stress and anxiety and that this has caused mental illness.
The claim form issued on 24 January 2001, under brief details of claim read: "Claims for...
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Southern Developers Ltd and Others v Attorney General of Antigua and Barbuda
...are therefore sufficient. Dicta of Lord Woolf in McPhilemy v Times Newspapers et al [1999] 3 All ER 775 applied; Wilding v Commissioner of Police for the Metropolis [2004] EWHC 3042 distinguished. 2. The rights of the public are vested in the Crown and the Attorney General enforces these ri......
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Southern Developers Ltd 1st Appellant/Defendant [1] Lester Bryant Bird [2] Robin Yearwood [3] Hugh C. Marshall SNR. v Attorney General of Antigua and Barbuda Respondent [ECSC]
...are therefore sufficient. Dicta of Lord Woolf in McPhilemy v Times Newspapers et al [1999] 3 All ER 775 applied; Wilding v Commissioner of Police for the Metropolis [2004] EWHC 3042 distinguished. 2. The rights of the public are vested in the Crown and the Attorney General enforces these ri......