LIES, EVIDENCE, DISCLOSURE AND PROCEDURE : AA -v- LONDON BOROUGH OF SOUTHWARK CONSIDERED
It is certain that the decision in AA -v- London Borough of Southwark  EWHC 500 QB will receive considerable coverage. It is a remarkable case. There are enormous implications for local authorities. Here we look at the procedural issues in the case.
The claimant (as a litigant in person) was bringing an action for damages arising out of his eviction from his home. The tenor of the case can be found in the judge’s summary.
(1) The eviction was unlawful and an abuse of process both because the warrant was issued without the prior permission of the court and in the manner in which it was executed.
(2) The various officers of the defendant conspired to evict the claimant by unlawful means, to seize and destroy his possessions by unlawful means and to cause him harm and loss be evicting him of his possessions by unlawful means. This conspiracy was subsequently covered up by a further conspiracy which gave rise to abuse of process in the subsequent court proceedings and to a continuing deprivation of the claimant’s enjoyment of his tenancy and loss of his possessions.
(3) Three officers exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive with the intention of harming the claimant by having him evicted when there were no reasonable grounds for his eviction and by arranging for his possessions to be seized and destroyed unlawfully.
(4) The claimant had, as a result of these facts, also been caused loss by the negligence of the defendant, by its breach of his right to the quiet enjoyment of his tenancy and as a result of the lack of respect shown to his private life by the defendant.
(5) The claimant was entitled to substantial damages that extended to special or general damages, aggravated and exemplary damages and damages for breach of contract and for the various torts he had been subject to and for equitable remuneration for the lost work stored on his hard drives, discs and memory sticks and for his lost photographs as well as a remedy for the loss of his tenancy on a basis still to be determined.
The defendant alleged that, because of previous court orders, the claim was confined to an assessment of damages arising out of their (admitted) failure to care for the claimant’s property after the eviction. The defendant had failed (the judge found for no good reason) to provide a report which was highly critical of the defendant’s conduct. This was not disclosed until part way through the trial.
THE JUDGMENT ON THE “CUTTING DOWN” ALLEGATION
- Cutting down by subsequent court orders. This extensive pleaded agenda for the trial was not cut down by subsequent court orders. The relevant parts of these orders that LBS now contends had the effect of confining the trial to a limited agenda were merely concerned with interim applications related to one specific claim – for special damages for the loss of AA’s possessions quantified under the TIGA – whilst leaving open and for trial all other causes of action, loss and special and general damages for the loss of both his tenancy and his possessions.
- What has been set down for trial? All claims made by AA have been set down for trial. The directions for trial identify a limitation on that general setting down order by identifying that one claim is now limited to an assessment of damages. That limitation arises because LBS admitted in its defence that it had unlawfully disposed of AA’s possessions. That admission was confined to an admission of liability under the TIGA and it can be seen to have reserved any further admission or denial pending the obtaining and disclosure of the Matthews report. LBS did not subsequently pursue its threatened application to strike out the conspiracy claims as disclosing no cause of action and as being abusive and it only sought to confine the trial to the narrow assessment of damages that it contended was the only claim remaining for determination in order to prevent AA and the court from considering and giving appropriate effect to the matters disclosed in the Matthews report.
- Abuse of process or res judicata. Such abuse of process as occurred was occasioned by LBS’s conduct of its defence throughout the seven applications that have so far occurred in this litigation that have been analysed in detail in this judgment. The court has so far not considered AA’s applications for re-entry because on each of the three occasions that they should have been considered, the court declined to consider them for procedural reasons. Furthermore, LBS failed to provide the court of much essential detail at each of these hearings and the court was unaware at each hearing of the details of LBS’s unlawful conduct and its pursuit of its possession claim and its consequences for ulterior motives and in abuse of process. Moreover, all the applications were made on an interim basis and the judgments and resulting orders in each of them were procedural in nature, interim in outcome and neither conclusive nor determinative of any issue in the present claim.
- No abuse of process has yet occurred since AA’s present claim for conspiracy could not have been presented in court until he had had disclosed to him the documents that were relevant to that claim. This disclosure only occurred on the second day of the trial.
- Conclusion. The entirety of AA’s pleaded claims, save for items 4 and 5 of the schedule of special damages, remained for trial and no part of those claims were subject to either issue estoppel or an abuse of process.
FAILURE TO GIVE DISCLOSURE
This is as excoriating a judgment as you are likely to read in relation to disclosure and witness evidence. Firstly on the failure to give disclosure of the report.
- When Mr Matthews’ Report (“the Matthews report”) was published to senior management on 22 August 2013, it would or should have been obvious to LBS’s legal team that its contents and conclusions were highly material to AA’s claims since he was alleging that his eviction and loss of possessions had resulted from a conspiracy by the LBS officers that had been investigated to harm him. Moreover, LBS had pleaded in its defence that AA’s conspiracy allegations were strenuously denied, that there was no evidence of any malevolent intention on LBS’s behalf, that the allegations were absurd and without factual foundation, that they failed to disclose any reasonable cause of action and that they should be struck out pursuant to CPR 3.4(2).
- It follows that the entire report should therefore have been disclosed to AA once it came into LBS’s possession since the defence had asserted that full details of the report would be given in evidence once they had been published and its contents were highly material to support AA’s case as well as his refutation of LBS’s case. However, LBS failed to disclose the report until ordered to on the second day of the trial even though it had received it some four months prior to the trial.
- The evidence served by LBS included a lengthy witness statement by Mr Martin Hilder, the manager of the Central Operations Team that embraced all the income officers in LBS. This statement had made two months after the Matthews report had been provided to senior management. Mr Hilder made no reference to the Matthews report save to state at the end of his statement
“60. As a result of Officers’ failure to comply with Council procedures, various disciplinary proceedings have been commenced and the Council has reviewed its procedures to ensure so far as possible that such failures do not occur again and has already issued and implemented guidance and new procedures.”
- These few words in Mr Hilder’s witness statement served for use at the trial showed that the Matthews report was relevant to the issues at the trial. They showed that various officers had failed to comply with LBS’s procedures relating to the eviction of secure tenants, that those failings had led to disciplinary proceedings being started against the officers involved and that LBS had reviewed its procedures so as to ensure that failings by officers carrying out the eviction of tenants would not in the future lead to the loss and destruction of the possessions of such tenants.
- Given the potential significance of this report to AA’s claims, I directed LBS on Day 2 of the trial to disclose an unredacted copy of the Matthews report to AA. Following its disclosure, LBS opted not to seek to adduce further evidence from any of the officers involved in AA’s eviction but did opt to adduce a witness statement from Mr Matthews who attended the trial and was questioned by me and cross-examined by AA as to the contents and conclusions of his report. Mr Matthews’ overall conclusion was that there had been a series of negligent and grossly negligent acts by three of the four officers involved in the carrying out of AA’s eviction and grossly negligent conduct in a fourth officer’s response to, and cover up of, that negligent conduct. Mr Matthew stated in his oral evidence that had these officers not acted in that way, the realistic consequences would have been that AA’s possessions would not have been destroyed and, instead, he could have collected them from the flat after he had been evicted or that LBS would have taken them into storage and he could have collected them from there. Mr Matthews did not consider that any of the officers that he had investigated had been malicious or that there had been a criminal conspiracy. However, that finding was not conclusive since he did not investigate, and indeed was not asked to investigate, the eviction process albeit that it was the same process as he had investigated in relation to the destruction of AA’s possessions. Furthermore, he was not asked to and in consequence did not consider whether there was evidence of a tortious conspiracy such as to give rise to an entitlement to damages. At the very least, the contents of the report and of Mr Matthews’ oral evidence were both relevant and admissible as evidence in relation to AA’s claims relating to the destruction of his possessions. Not surprisingly, both sources of evidence were heavily relied on by AA in his closing submissions in support of all his claims.
- There is a further reason why the dispute as to the agenda for the trial is wrapped up in the detailed factual background of AA’s claims. If LBS fails in its argument that AA has not pleaded, or may not proceed with, claims based upon his unlawful eviction from the flat, it contends that it would be an abuse of process for AA to pursue them given that five successive court hearings have conclusively concluded that they have no substance.
Later in the judgment the judge observed:
- Preparations for trial. LBS did not provide any significant disclosure relating to the conspiracy claim, did not serve any witness statements concerned with that allegation and did not provide an expert’s report relating to its special damages defence, relying instead on prices obtained from a catalogue by Mr Hildred, valuations that were inadmissible since the Master had directed that valuation evidence should be given by an expert. That ruled out factual hearsay or second-hand evidence given by a witness of fact. Similarly, AA’s valuations were inadmissible for the same reasons.
- Of particular significance was the failure by LBS to serve by way of disclosure Mr Matthews’ investigation report. It was dated and provided to LBS on 17 August 2013. Disciplinary hearing involving Mr Davis, Ms Okwara, Miss Ashley and Ms Yusuff were heard in October and November 2013 and the internal hearing informed those officers of its decision on 30 October 2013 in Mr Davis’ case, 8 November 2013 in Ms Yusuff’s case and 15 November 2013 in Ms Ashley and Ms Okwara’s cases. No notices of appeal were served, as required under the relevant rules, within 2 weeks of the respective dates of these decision letters.
- LBS did not serve or disclose copies of the Matthews investigation as it had stated it would and did not inform AA or the Court that he had reported. The contents of the report and the findings reached were clearly of great significance to AA’s claims and, as this judgment has demonstrated, the findings and its supporting evidence are highly material, clearly disclosable and greatly detrimental to LBS’s defence to both the unlawful eviction and unlawful destruction of property claims and to AA’s causes of action based on conspiracy. When the disclosure of this report was raised by me at the trial, LBS’s initial responses were that it was not relevant and that its disclosure had been withheld on the additional ground that it would prejudice the officers’ conduct of their cases before the disciplinary hearing and any possible appeal. Neither of these justifications for withholding the report stand scrutiny and, indeed, I am driven to the conclusion that the report was withheld because its contents were so damning of and detrimental to LBS’s defences.
- It is clear that LBS were, until a late stage in its preparations, planning and preparing for a defence that included a defence to the conspiracy claims relating to both the unlawful eviction and unlawful destruction of goods. As already recounted, Mr Hilder asked Ms Okwara by way of an iWorld entry dated 11 October 2013 for answers to two significant questions relating to the apparent delay in her informing AA of the date of the intended execution of the warrant. He stated that he needed her explanation for the delay in notifying AA of the date in contravention of EVDA procedures so that he was only notified of the date on 15 April 2013 for a planned eviction on 23 April 2013 even though LBS were informed of the date some 6 weeks earlier. He also asked for an explanation for the failure to return for a second pre-eviction visit when being unable to gain entry at the first visit. He stated in this posting:
“Please answer honestly for me as barrister suspects I will be asked these in court.”
Ms Okwara provided no answers on iWorld and Mr Hilder could not explain to me why he had not chased up answers to these questions, what the answers were or why he had not dealt with these matters in his witness statement.”
- None of the witnesses who were named in the Matthews report as having been negligent or grossly negligent in relation to the unlawful destruction of AA’s possessions and who were alleged to have acted in concert to obtain or to cause his unlawful eviction gave evidence or were tendered for cross-examination. LBS appeared to have taken a deliberate decision not to adduce their evidence or to tender them for cross-examination since its counsel Mr Kevin Rutledge QC stated that LBS did not wish to call any further witnesses when asked by me after Mr Matthews had given evidence whether he wished to do so.
- Mr Matthews Report and the accompanying notes of the interviews he conducted of relevant LBS officials during his inquiry were admitted as evidence and I have considered that evidence carefully and have evaluated it in the knowledge that the individuals concerned did not attend to explain any part of that evidence. I concluded that I should only accept any particular piece of evidence or draw adverse inferences from it if I was satisfied on a balance of probabilities that that evidence was to be accepted and any appropriate inferences could be drawn from it.
THE JUDGE’S ASSESSMENT OF THE WITNESSES
- Summary. I have set out at length the evidence about what each witness who was directly or indirectly involved with the eviction told Mr Matthews about their respective parts in that eviction because these accounts are inconsistent with each other and, in the case of both Mr Davis and Ms Okwara, each of whom was interviewed three times, their account of their actions changed from interview to interview in an apparent attempt to explain away contradictory evidence that Mr Matthews presented them with. Similarly, Ms Ashley’s evidence was muddled and unclear, particularly her evidence as to whether she knew that no income officer had been present at the eviction, as to whether or not she was aware that AA’s possessions might have been left behind in the flat after the eviction, as to whether the keys should have been left for her at all and as to whether she should have realised that she should have visited the property on 24 April 2013 given that the keys were not accompanied by paperwork showing that the flat was empty or still contained possessions.
- In short, the four relevant individuals’ inconsistencies and prevarications highlighted their apparent attempts to exculpate themselves rather than to tell the truth.
- Analysis of the eviction evidence. In order to test their evidence, I have considered those parts of it that can be compared to external and credible evidence. The principal objective evidence collected by Mr Matthews that can be used to test the veracity of the evidence of Mr Davis, Ms Okwara and Ms Yusuff are their mobile phone records which, tellingly, had not been seen by them before they had been interviewed save that they had been made available to Mr Davis and Ms Okwara for their respective third and final interview after Mr Matthew had already interviewed them twice. These records and the obviously erroneous evidence about their phone calls given by the four principle witnesses enable a clear picture to be built up about the significant level of collusion and collaboration there was between them that had led to the unlawful manner in which AA was evicted from his flat and had lost all of his possessions.
- Senior management only became aware of the loss and destruction of AA’s possessions on about 16 May 2013. This led Mr Hilder and Ms Russell to report this to, presumably, the Director of Housing who initiated the Matthews investigation soon afterwards.
- No doubt as a consequence of the initiation of the investigation, Mr Davis, Ms Okwara and Ms Yusuff appear to have met on about 31 May 2013 to co-ordinate their evidence to the investigation. Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.
This is such an extraordinary case it is difficult to know where to start. It damages,immensely, confidence in the local authority system. It reinforces, enormously, confidence in the judicial system in that this judgment was obtained by a litigant in person in a case where the defendant had elected to instruct Leading Counsel. The lessons in relation the need to treat people decently and honestly are obvious and will, no doubt, be dealt with at length elsewhere. So far as procedure is concerned there are clear lessons in relation to:
- The need to give full and frank disclosure.
- The need for honesty in witness evidence.