Judgments - Ashley (Fc) and Another (Fc) V Chief Constable of Sussex Police

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41.  The Court of Appeal held that Dobbs J had been wrong to strike out the claim for misfeasance in public office, relating to the events after the shooting, but that, for the reasons which they gave, she had been entitled to direct that the issue of compensatory damages should be determined before the issue of liability. There is no appeal against that aspect of the judgment of the Court of Appeal.

42.  In the case of the claims for battery, Dobbs J noted that:

“the experts were not able to exclude the explanation given by PC Sherwood about what he believed the deceased to be doing with his hands/arms immediately prior to the shooting. Given what the claimant has to prove, I am of the view that this claim has, on the evidence, no real prospect of success.”

Dobbs J accordingly struck out the claims based on battery. She also indicated that, if she had been against the Chief Constable on the application to strike out, in the exercise of her case management powers she would have stayed the proceedings pending the trial of the negligence aspect of the claims.

43.  The Court of Appeal held that Dobbs J had erred in holding that, in a civil case, the burden of negativing self-defence was on the claimants. The Chief Constable has accepted the Court of Appeal’s view on that point.

44.  In the course of submissions developed before the Court of Appeal Mr Starmer QC also argued on behalf of the claimants that the test for self-defence in a civil case was not the same as the test in a criminal case. In a criminal context, the defence would be available if the accused honestly, even though unreasonably, believed that the deceased was armed and was going to shoot him imminently: R v Williams (Gladstone) [1987] 3 All ER 411 and Beckford v The Queen [1988] AC 130. But, in this civil case, the claims for battery would succeed unless the Chief Constable proved that the deceased had actually been armed and might have shot PC Sherwood imminently. Alternatively, the claims would succeed unless the Chief Constable proved that PC Sherwood not only honestly, but reasonably, believed that the deceased was armed and might shoot him imminently. The Court of Appeal upheld the claimants’ alternative submission. The Chief Constable has appealed against this decision and contends that the test of self-defence is the same as in the criminal context. There is no cross-appeal by the claimants against the rejection of their other argument.

45.  Applying their view of the law, the Court of Appeal reconsidered the decision of Dobbs J that the claims for battery should be struck out. Having done so, the court concluded that it could not properly hold that the claimants had no real prospect of defeating the defence of self-defence. Plainly, the House would have to reconsider that assessment if it allowed the Chief Constable’s appeal on the test for self-defence. But at the hearing, when the committee indicated that it was not disposed to allow the appeal on that point, Mr Faulks QC did not seek to argue that, nevertheless, the claimants had no real prospect of defeating the defence of self-defence.

46.  In the course of the hearing before the Court of Appeal, the parties came to an agreement as to the basis upon which damages for negligence and false imprisonment should be assessed. The terms of that agreement are explained in the opinion of the Master of the Rolls: [2007] 1 WLR 398, 404, paras 9 and 10, which Lord Scott has recited in his speech, at para [13]. The majority of the Court of Appeal (Sir Anthony Clarke MR and Arden LJ) held, however, that, despite the judgment in the claimants’ favour and the agreement between the parties, the claimants should be allowed to have the claim based on the alleged battery tried - but only with a view to the court making an appropriate declaration, if it found the battery established. The Master of the Rolls explained, at para 96:

“The role of the civil courts is not solely to provide compensation. As I see it, the civil justice system exists to adjudicate on the merits of individual claims by application of the law to the facts. The role of a civil court is to determine the parties’ legal rights and liabilities. Such a determination can result in different types of relief, including compensation by way of damages, an injunction or a declaration. The pursuit of a declaration that the defendant is liable in the tort of battery for the shooting of the deceased by PC Sherwood is a remedy available to the court. While it does of course remain within the court’s discretion whether declaratory relief should be granted, it seems to me, without wishing to prejudice the matter if it arises before the trial judge, that the court may well think it appropriate to grant such a declaration if the defendant fails to show that PC Sherwood used reasonable force in necessary self-defence (as described above).”

This particular approach had not been suggested by counsel for the claimants and had not been the subject of submissions to the Court of Appeal.

47.  The Court of Appeal ordered that the issues of the Chief Constable’s liability for battery and of the quantum of any damages should be tried at the same time as the issue of the assessment of compensation for negligence and false imprisonment. The Chief Constable has appealed against this aspect of the decision of the Court of Appeal. He contends that - as Auld LJ held - the claims for battery should now be stayed permanently.

48.  Both in his written case and in the hearing before the House, Mr Faulks presented the issue as one which went beyond mere case management. He submitted that, by insisting on going ahead with their claim in battery, the claimants were guilty of abuse of process.

49.  Basically, Mr Faulks argued that the claimants had no legitimate interest in pursuing their claims in battery now that the Chief Constable had admitted liability and agreed to pay damages in the negligence claims. Their only aim was to obtain a judgment from the civil court on the circumstances in which PC Sherwood had shot and killed the deceased. This was, he said, wholly unnecessary in the public interest. PC Sherwood had been charged with murder, had gone to trial and had been acquitted on the direction of Rafferty J, who had held that the Crown had not been in a position to negative his defence of self-defence. The deceased’s family had sought a public inquiry but, after due consideration, that request had been turned down, because the circumstances of the shooting had been explored at the criminal trial. The claimants accepted that, as a result of the agreement on damages reached during the hearing before the Court of Appeal, even if they succeeded in their claims for battery, they could not obtain any higher sum by way of damages either under the 1934 Act or under the 1976 Act. In these circumstances, the claimants were merely trying to obtain a judgment from the civil court which would cast doubt on the verdict of acquittal in the criminal trial. A trial of their claims for battery would serve no legitimate purpose.

50.  I turn very briefly to the first issue, the appropriate test for self-defence.

51.  If a person is actually under a potentially lethal attack or such an attack is imminent, the law recognises that he is entitled, or permitted, to defend himself and, if need be, to kill his assailant. The killing is justified. See, for instance, A Ashworth, Principles of Criminal Law, 4th ed (2003), pp 135-136. In my view the civil and criminal law would look at that situation in the same way: it would be absurd to say that the person under attack was justified in killing his assailant, but nevertheless potentially liable in damages to the assailant’s estate or to his dependants. To this extent the civil and criminal rules on self-defence must march together. And indeed the ex turpi causa and contributory negligence defences help to reinforce that policy.

52.  The position is rather different where, for example, D believes that V is attacking him with potentially lethal force, when that is not in fact the case. For instance, V threatens D with a gun, which, unknown to D, is unloaded. There is a dispute among academic writers as to whether, in such circumstances, D is justified in killing V or whether what D did was wrong, but he has a defence to any criminal charge - in English law, even where his mistaken belief was unreasonable. See, for instance, Gardner, Offences and Defences (2007), pp 108-113 and 269-276, and H Stewart, “The Role of Reasonableness in Self-Defence” (2003) 14 Canadian Journal of Law and Jurisprudence 317, 320-323.

53.  In situations where issues of mistake arise, I respectfully agree that, for the reasons given by Lord Scott of Foscote, there is nothing anomalous in the civil law and criminal law now continuing along separate paths and adopting different standards. In the Court of Appeal the Master of the Rolls analysed the cases and other material which describe the approach of the civil law: [2007] 1 WLR 398, 413-418, paras 45-62. Moreover, as Lord Scott has explained, there are good reasons why the civil law should hold the balance between the victim and the defendant by insisting that, for the defence to operate, any mistake on the part of the defendant must be reasonable. So the Chief Constable’s appeal should be dismissed. I wish to reserve my opinion on two points, however.

54.  First, Arden LJ [2007] 1 WLR 398, 449, para 196, drew attention to the situation where D shoots V, in the reasonable belief that V is about to attack him, but that belief is based to a material extent, not on V’s actions, but on something which D has been told previously by a third party. Like Arden LJ and Lord Scott, I should wish to leave the effect of a reasonable belief of that kind open for further consideration.

55.  Secondly, since the respondents did not cross-appeal against the rejection of their argument that self-defence should be available as a defence to a claim for battery only where the defendant was actually being attacked or in imminent danger of an attack, the House did not hear argument on that point. Although he ultimately rejected the argument, the Master of the Rolls acknowledged what he called, at para 39, its “undoubted force", especially in the light of Cope v Sharpe (No 2) [1912] 1 KB 496 and Cresswell v Sirl [1948] 1 KB 241. The argument is encapsulated in Sedley LJ’s crisp observation that “honest belief in a non-existent state of affairs does not excuse a trespass to the person": Hepburn v Chief Constable of Thames Valley Police [2002] EWCA Civ 1841; The Times, 19 December 2002, at para 24. Again, I would reserve my opinion on that, fundamental, question.

56.  My Lords, in addressing the second issue, I start by reminding myself that “English law has no objection to concurrent liability … between one wrong and another": Burrows (ed), English Private Law, 2nd ed (2008), para 17.246. In an ordinary action of personal injuries arising out of an industrial accident, for example, it is commonplace for the claimant to rely on more than one cause of action. So the claimant may use the one claim form to initiate both a claim based on the common law and a claim based on a breach, or breaches, of statutory duty: CPR r 7.3. Leaving aside any question of case management, at the trial the claimant is entitled to pursue both claims - and will often be well advised to do so. There may be problems about some aspect of the common law claim or about the application of the statutory provisions to the particular circumstances. The claimant will run both cases, in the hope of succeeding on at least one of them. Of course, the evidence needed to establish liability at common law and under the statute may well be different: for the purpose of his common law case, the claimant may have to explore circumstances relating to the reasonable foreseeability of harm which do not arise in his statutory case. Nevertheless, the advantage will generally be in favour of proceeding with both claims in a single trial.

57.  At the end of the trial, the judge may hold that the common law claim is established and so find it unnecessary to deal with the statutory claim - or vice versa. In that event, the judge will find the defendant liable to pay damages on the basis of the claim that he has held to be established. Part 36 offers or payments aside, the defendant will usually have to pay the claimant’s costs. But, equally, the judge may find both the common law and statutory claims established. The defendant will then be held liable to pay damages to the claimant both in respect of the common law tort and in respect of the breach of statutory duty. Again, the defendant will have to pay the claimant’s costs.

58.  Although, in such a case, there are two causes of action and the defendant is found liable in respect of each, both causes of action relate to the same injuries. It follows that, as a rule, the damages recoverable under both causes of action will be the same. And, since the damages are intended to provide compensation for the injuries suffered by the claimant, he is entitled to the same damages, whether he succeeds on one cause of action or on both. The only material advantage to the claimant in succeeding on both causes of action is that he will be entitled to retain his damages, even if an appeal court later holds that he should not have succeeded on one of them.

59.  From the outset, in their various capacities, the claimants in the present case had a cause of action against the Chief Constable based on the negligence of his officers and another cause of action against him based on battery by PC Sherwood. The Chief Constable admitted liability in respect of the negligence claims and Dobbs J gave judgment for the claimants on their claims in negligence and false imprisonment. She ordered that a hearing for the assessment of damages should take place, but, in the event, that did not happen because of the appeal to the Court of Appeal.

60.  A claimant has no cause of action in negligence unless he has suffered injury or damage. By contrast, battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity: the law vindicates that right by awarding nominal damages. I respectfully agree with what Lord Scott has said, at para [22], on that matter. But the 1934 Act claim of the estate of someone, such as the deceased, who has allegedly suffered the ultimate form of battery, resulting in pain and suffering before death supervenes, is not for nominal damages, but for compensatory damages for what he suffered due to the battery. The award of such damages can indeed serve a vindicatory purpose. Especially since there is no longer any right to damages for the loss of expectation of life, in a case like the present it would be artificial to divorce damages for the battery itself from damages for the deceased’s pain and suffering. In any event, the parties are agreed that, for purposes of the 1934 Act, the deceased’s estate could not “recover more damages for assault and battery than those to which it is entitled pursuant to the appellant’s concessions.” Equally, there is no suggestion that the damages due to the deceased’s estate for assault and battery would be smaller. The same applies to the claims on behalf of the dependants under the 1976 Act.

61.  The position can be summarised in this way. The claimants have a judgment in their favour on the Chief Constable’s liability in negligence and false imprisonment. In addition, in the course of the hearing before the Court of Appeal, the parties agreed a formula under which damages in respect of the claims of negligence and false imprisonment would be assessed. Finally, it is agreed that the claimants cannot obtain any more by way of damages if they succeed in their claims for battery.

62.  The judgment and the agreement on damages do not have any direct effect on the claimants’ cause of action based on battery. In other words, while they are entitled to judgment for the damages to be assessed in relation to the claims of negligence and false imprisonment, their causes of action based on battery remain intact. Prima facie, therefore, they are entitled to proceed with the cause of action in battery and, if they succeed, they can ask the court to pronounce judgment, in the usual way, ordering the Chief Constable to pay the appropriate sum of damages, both in respect of their claims in negligence and false imprisonment and in respect of their claims in battery.

63.  In these circumstances there is no need to consider whether, as the Master of the Rolls and Arden LJ held, it would have been appropriate for the proceedings to continue only in order to give the claimants an opportunity to obtain a declaration in respect of the claims in battery. If the proceedings continue, any declaration which the judge chose to make would be ancillary to any ultimate judgment that the Chief Constable should pay damages in respect of both causes of action. The decision of the Court of Appeal of New Zealand in Re Chase [1989] 1 NZLR 325, where no damages could be claimed, is accordingly distinguishable. Indeed, in the present case the discretionary nature of the remedy of declaration is irrelevant: what matters is that, if the claimants are permitted to proceed, and if they then prove their case, they will have a right ex debito iustitiae to a judgment for the appropriate sums of damages for the battery done to the deceased. That judgment would necessarily involve a finding that PC Sherwood had not been entitled to shoot the deceased in self-defence.

64.  Despite this, the Chief Constable submits that the claims for damages for battery should be permanently stayed as an abuse of process. In my view, however, parties who have a claim for damages for battery, which is not struck out, cannot be said to abuse the process of the court by proceeding with that claim. Suppose, for example, that the claimants had chosen to sue PC Sherwood as well as the Chief Constable for battery. In that situation, the judgment against the Chief Constable and the agreement on damages could not possibly have been a basis for holding that it was an abuse of process for the claimants to continue their action against PC Sherwood. The position should not be any different just because the only claim is against the Chief Constable.

65.  The Chief Constable draws attention to the claimants’ supposed motives in continuing with the claims in battery. Assume that one of their motives is indeed a desire to obtain a judicial finding about the circumstances in which PC Sherwood killed the deceased. The existence of that motive is not in itself a reason for the court to stay their claims.

66.  As the Chief Constable accepts, the fact that PC Sherwood was acquitted of the criminal charge against him does not, of itself, make it improper or an abuse of process for the claimants to raise and insist in the civil claims based on battery. That emerges quite distinctly from the discussion by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 542H-543C. I refer also to the decision of Lightman J in Raja v Van Hoogstraten [2005] EWHC 2890 (Ch), paras 43-46. For the reasons given by the Master of the Rolls [2007] 1 WLR 398, 426, para 98, not only the processes but the issues in a civil trial relating to the shooting would be significantly different from those in the criminal trial. Therefore the acquittal of PC Sherwood does not justify the conclusion that a civil trial of the allegation of battery would be an abuse of the process of the civil court.

67.  Nor would an award of damages for battery violate PC Sherwood’s article 6(2) Convention right to be presumed innocent of the charge of murder of which he was acquitted. This is made quite clear by the European Court of Human Rights in their judgment in Y v Norway (2005) 41 EHRR 87, 102-103, para 41:

“In the view of the Court, the fact that an act which may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence could not, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being ‘charged with a criminal offence'. Nor could the fact that evidence from the criminal trial is used to determine civil law consequences of the act warrant such characterisation. Otherwise, as rightly pointed out by the Government, article 6(2) would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to court under article 6(1) of the Convention. This again could give an acquitted perpetrator, who would be deemed responsible according the civil burden of proof, the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of article 6(2) or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude establishing civil liability in relation to the same facts.

Thus, the Court considers that, while the acquittal from criminal liability ought to be maintained in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v Austria (Application No 9295/81), Commission decision of 6 October 1992, Decisions and Reports (DR) 30, p 227; MC v United Kingdom (Application No 11882/85), decision of 7 October 1987, DR 54, p 162).”

The European Court added, in para 42:

“However, if the national decision on compensation contains a statement imputing the criminal liability of the respondent party, this could raise an issue falling within the ambit of article 6(2) of the Convention.”

Provided that the judge makes no such statement, an award of damages would be quite consistent with PC Sherwood’s article 6(2) Convention right.

68.  It is, of course, well established that the courts will not entertain cases which serve no sufficient or legitimate legal purpose. Courts of law have no concern with hypothetical or academic questions and are “neither a debating club nor an advisory bureau": Macnaughton v Macnaughton’s Trs 1953 SC 387, 392, per Lord Justice Clerk Thomson. So the House dismissed a claim for a declaration of incompatibility in relation to a statutory provision which was, in practice, a dead letter: R (Rusbridger) v Attorney General [2004] 1 AC 357. A court will also dismiss proceedings which might have had a legitimate purpose when they began, but no longer do so, because of a change of circumstances: Clarke v Fennoscandia Ltd [2007] UKHL 56; 2008 SLT 33.

69.  Frequently, however, a defendant cannot challenge the interest of the claimant to pursue the action without simultaneously calling into question his own real interest in defending the action. After all, if the claimant gains nothing of value by winning, equally, the defendant loses nothing of value if he is defeated. Cf Murray’s Trs v Trustees for St Margaret’s Convent (1906) 8 F 1109, 1116-1117, per Lord Kinnear. Conversely, in the present case the very fact that the Chief Constable remains understandably concerned to defend the claim of battery tends to confirm that the claimants may remain, equally understandably, concerned to pursue that claim.

70.  Case management is intended to assist, not to frustrate, the administration of justice between the parties. Where parties have a valid cause of action, justice is unlikely to be served by preventing them from advancing their cause of action on the ground that their motive for doing so is somehow improper. For instance, a trade union backing a claimant with an established cause of action for personal injuries may, quite legitimately, wish to use the proceedings to try out another novel, and more doubtful, cause of action. Or, like Mrs Doreen Fox, the principled widow of one of the victims of industrial mesothelioma, a claimant may feel morally obliged to refuse a full offer of settlement and to proceed, in order to try to establish a point of law which would help others in a similar plight. In these circumstances the House recognised her right to press on with her appeal against the unfavourable ruling of the Court of Appeal. The result was the decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.

71.  In the present case the claimants have a cause of action for damages for battery as well as for negligence and false imprisonment. Any motives - besides obtaining damages - which they may have in pursuing their claims in battery neither enhance nor damage their case for allowing those claims to proceed: Halford v Brookes [1991] 1 WLR 428, 440H-441A, per Nourse LJ. In fact, the issue raised by the claims for damages for battery is far from academic - even if, in the end, the judge could choose not to decide it. In respectful agreement with the majority of the Court of Appeal, I accordingly consider that it would be wrong to use the court’s case management powers to impose a permanent stay of these claims.

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