COSTS,INDEMNITY AND CONTRIBUTION PROCEEDINGS: (OR "COPPERS COP IT")

January 27, 2016 · by · in Assessment of Costs, Contribution proceedings, Costs, Part 36, Uncategorized

In Mohidin -v-Commissioner of Police for the Metropolis [2016] EWHC 105 (QB) Mr Justice Gilbart carried out an extensive review of the principles relating to contribution proceedings and costs.

KEY POINTS

  • Two police officers who had been involved in the unlawful assault and arrest of two claimants were liable to indemnity the Commissioner for damages and costs awarded in an action for damages.
  • The “means” of the police officers were irrelevant to the question of whether an order indemnity should be made under the Civil Liability  Contributions Act 1978.
  • The contribution was assessed in relation to the involvement of the officers. However an officer of higher rank was held to have greater responsibility.
  • The two police officers were also liable to indemnify the Commissioner for the costs of the action.
  • The Commissioner was held liable to pay an additional 10% and interest because of a failure to beat the claimants’ Part 36 offers. The police officers were not liable to contribute towards these additional liabilities.
  • The Commissioner was liable to pay the costs of the two police officers who had been joined into the action but who had not been found liable.
  • The court would not consider issues relating to “proportionality” when considering contribution issues. The approach taken by the Commissioner,  although unusual, was lawful.

THE CASE

  • Two of three claimants had been successful in an action against the Commissioner for assault and false imprisonment. The Commissioner had joined the four police officers who were alleged to have committed the acts into the action as additional parties. The police officers were not joined as defendants by the claimants.
  • Two of the four police officers were found not to have committed any wrongful torts and it was common ground that the Commissioner should pay their legal costs.
  • The issue arose as to whether the two police officers who had been found to have been involved should contribute to the Commissioner’s liability to pay damages and costs.

THE LIABILITY OF THE POLICE OFFICERS TO CONTRIBUTE TO DAMAGES

  1. I shall deal firstly with the issues about whether or not there should be an indemnity or contribution made by the Third and Fifth Parties (Mark Jones and William Wilson). I shall then deal with the issues that have arisen about costs.
  2. The starting point is to recall that these were proceedings brought by the three Claimants against the Defendant. He then elected to make claims against the Additional Parties pursuant to CLCA 1978 and Part 20 of CPR. This is not a case where the Additional Parties have been brought into the action as Defendants to the claims of the Claimants, and as the Additional Parties’ submissions point out, joinder of the police officers concerned in such a case via a CLCA 1978 process is by no means the sure consequence of a claim being made against a Chief Constable or (in London) the Commissioner.
  3. It is of course inevitable in a case such as this, where allegations of misconduct are made against named officers, that if CLCA 1978 proceedings are taken against them, then their participation in the action, including the trial process, will be substantial. It was an obvious consequence of their being made the subject of indemnity and contribution notices, and joinder under CPR Part 20 that the proper conduct of their case would involve their challenging the cases made by the Claimants. The Defendant must have been alive to that when deciding to issue the claims for indemnity or contribution within the action as it proceeded.
  4. There is agreement between the Defendant and the Additional Parties that the law permits the claims made against them by the Defendant. That must be so given the terms of sections 1 and 6 of CLCA 1978. The First and Second Claimants could have sought redress from the Additional Parties, and on the basis of the findings made in the main judgment, the First Claimant Omar Mohidin would have succeeded in obtaining judgment against the Third Party Mark Jones, and the Second Claimant Basil Khan would have succeeded in doing so against both the Third Party Mark Jones and the Fifth Party William Wilson. Further, the Defendant could have awaited the outcome of the proceedings brought by the Claimants, and then issued his claim under CLCA 1978.
  5. It follows in my judgment that the test to be applied is that in section 2 of CLCA 1978, whose terms bear repeating:
“2 Assessment of contribution.

(1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

(2) Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

  1. While the issue of what is just and equitable is relevant, it is so within the confines of the discretion set out in subsection (1) – i.e. having regard to the extent of the person’s responsibility for the damage in question. That is reflected in the passage, relied on by the Defendant, in the judgment of Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426@445H:
“the extent of a person’s responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance.”
  1. In my judgment, the current means of the persons from whom the indemnity or contribution is sought cannot be relevant to the issue of the indemnity or contribution to the damages claim. Had the Claimants sued the Additional Parties as Defendants, it would have been no answer to the claim that the Additional Parties were indigent. It may be a reason why a commercial decision would have been taken not to issue proceedings, but it cannot affect the entitlement of a party to a judgment if the relevant cause of action and infliction of recoverable damage are proved.
  2. I am invited to address how it was that the Additional Claims came about. The Defendant has explained why he adopted a neutral stance. In my judgment, he could have decided to rely on the evidence of the Claimants and PC Onwugbonu, as he did for the purposes of the criminal trial, or relied on that of and called by the Additional Parties. Had he done the former, he would have been bound to concede liability in the action, albeit perhaps not the quantum of damages sought, and he could then have issued proceedings for an indemnity or contribution. Had he done the latter, he would have contested liability as well as quantum. He opted for the middle way of resisting liability but without calling evidence on what occurred in the TSG carrier, and without accepting the evidence of and called by the Claimants or that of and called by the Additional Parties. However, as the main judgment records, he did call evidence of importance, which rebutted the case for the Additional Parties that Basil Khan’s first complaint was somehow suggested to him.
  3. It is possible to have different views about that approach. But it was not unlawful, and the fact remains that the evidence called at trial proved that two of the Claimants should succeed in their action, having proved serious tortious misconduct by two of the officers. Had the two successful Claimants sued the officers as Defendants, they would have succeeded against them, and recovered damages and costs. The fact that the Defendant adopted an unusual approach does not of itself make the orders he now seeks unjust or inequitable in the context of the test in section 2 of the 1978 Act. One may test that. If he had admitted liability, he would still have been able to seek an indemnity or contribution under CLCA 1978. Had he mounted a positive case against the Claimants but lost, he would still have been able to seek that indemnity or contribution. I find it hard to see why the course he adopted alters the justice or equity of whether an indemnity or contribution should be made. The critical question under CLCA 1978 is whether the Third and Fifth Parties were responsible for the torts inflicted and the damage caused, not the choice of permissible route by which that responsibility was established.
  4. Of course the Defendant’s approach involved him running the risk that if one of the claims made against him failed, he would still have been responsible for bringing the Additional Parties into the action, and could be ordered to pay the Additional Parties’ costs of his doing so.
  5. I am similarly unpersuaded by the Additional Parties’ suggestions that there is some policy reason why an order should not be made. Although some arguments about abuse of process were mounted in the pleadings by the Additional Parties, and in their written statements of evidence, and in written submissions by the Claimants before trial, none were advanced before me at trial. (The First and Second Claimants put it on the basis that it was unreasonable for the Defendant to act thus. Although they have now contended in written submissions on the draft of this judgment that they were not arguing that there was an abuse of process as such, an argument about “reasonableness” could only be relevant in an action such as this if it was directed to the same point.) At the start of the trial, I raised my concern that that was not a matter justiciable before me at the trial. Counsel for both the Additional Parties and the Claimants did not abandon their cases on this issue at that stage, but it was made plain to me after the evidence and in submissions that the Additional Parties were no longer taking the point. In any event, I consider that such arguments would have been misconceived. Neither the CLCA 1978 nor the PA 1996 prevents, restricts or otherwise constrains the ability of the Chief of Police to obtain a contribution or indemnity from an officer or officers whose misconduct has led to his having to deal with a claim for which he is responsible under section 88 of the PA 1996. No authority has been placed before me which suggests that any such rule exists. The most that has been argued is that a Home Office Circular supports the approach that officers who are sued successfully for damages should in most cases expect to be repaid for the costs involved in resisting the proceedings, if they have acted in good faith and acted reasonably. But even if that was an apt description of the officers’ conduct here, that cannot amount to a defence to this claim of the Defendant. It has no effect on the question asked under the CLCA 1978, of whether an indemnity would be “just and equitable having regard to the extent of that person’s responsibility for the damage in question.” It has nothing to do with the sole relevant issue under section 2(1), that of responsibility for the damage.
  6. Unless the issue of the proceedings by the Defendant was impermissible legally (which no-one suggests) then the arguments of the Additional Parties can only go to whether the Defendant should have decided to issue the claims for indemnity or contribution. If that is justiciable, it is not so within the context of these proceedings before me. There is also no claim before the court of which I am aware in judicial review (and that is in no sense to be read as any form of suggestion that one might exist). I express no view on its relevance to any proceedings before the Employment Tribunal. I am also unpersuaded that a rule of law, let alone practice endorsed by the Courts, exists by which officers who have behaved unlawfully towards members of the public, and inflicted damage upon them, can then avoid civil liability for their wrongs should proceedings be taken against them.
  7. But even if I were to accept that I have jurisdiction to consider whether it was reasonable for the Defendant to issue these claims, I have no doubt that it was. I also find that the arguments of the Third and Fifth Parties are quite unpersuasive. I reach those conclusions for the following reasons;
i) I cannot accept the argument that this was somehow a confrontation of the kind to be expected by police officers in their service, in which the officers were acting properly but then the line was crossed in the heat of the moment or because of some other mitigating circumstance. I certainly accept that in very many cases, an officer faced with a difficult situation may make a misjudgement, or overreact, and may then face allegations of tortious conduct, where it would be reasonable that the Chief of Police would accept responsibility for meeting any claims, without that being a matter of legal principle, nor thereby setting up some benchmark which can be relied on in law. But this is qualitatively different. The incident with the First Claimant Omar Mohidin did not flow from any confrontation after the van had stopped, nor from any lack of cooperation by him. It occurred within the carrier, where PC Mark Jones had taken him, and involved PC Mark Jones acting in an entirely improper, racist and abusive manner. If there had been any provocation its effect had long passed, as any provocative conduct by Omar Mohidin had occurred much earlier when the TSG carrier was on the other side of Edgware Road. So far as Basil Khan is concerned, it is true that he had been involved in confrontational behaviour outside the van. But what then happened to him happened inside the carrier when he had offered no violence within it, and was intended to humiliate him;

ii) some time was taken up at the trial (and rightly so) in the calling of evidence by and for the Additional Parties on their training as TSG officers, including their training in diversity issues. I was invited by their case to accept that they were thoroughly and properly trained in matters relating to public order and the control of provocative situations. Evidence was also called of their firearms training, with emphasis being placed on their ability to maintain good judgment and a detached approach. I have no doubt at all that they received such training and that that was one of its purposes. But given that background, it is extremely hard to accept that the racist humiliation of the two Claimants was simply that of an officer in a difficult situation going too far. This was not a case of an officer going too far in defending himself, or being provoked by an offender into some excessive or over robust restraint. Both PC Mark Jones and Sergeant William Wilson knew perfectly well that what they were doing was improper, and contrary to the law and to the precepts of their training. As they well knew, they were sent out on patrol in the TSG carrier to keep order and deal with crimes committed by others, not to assault and humiliate youths once they had got them into the TSG carrier. In my judgment, having heard the evidence, this was a bad case of police officers taking the law into their own hands and engaging in an oppressive manner, and in PC Jones’ case, one that was also racist;

iii) the Defendant was entitled to conclude that, if the claimants’ evidence and that of PC Onwugbonu was accepted by the Court as true, what occurred that day had been caused by the serious breaches of the law by both PC Mark Jones, and by the man who was meant to be in charge, Sergeant William Wilson;

iv) there was no evidence here, nor the slightest suggestion, that what occurred was in any sense attributable to any inadequacies in the training given or the equipment provided, or the number of hours worked, or of any matter outside the responsibility of those on the TSG carrier. The incident occurred because, as recorded in the main judgment, the Third Party PC Mark Jones and others took offence at the gesticulations and gestures of the group of youths on the other side of the dual carriageway, and set off to find them, instead of proceeding to Brixton, which is where they had been sent;

v) the fact that there were other officers there, who might or could have intervened, does not absolve PC Mark Jones or Sergeant William Wilson from responsibility for their actions. In Sergeant William Wilson’s case, he was under a duty to restrain PC Mark Jones’ excesses, not (at the very least) turn a blind eye to them. I have more sympathy with Sergeant William Wilson than I do with PC Mark Jones, as I suspect that PC Mark Jones was a forceful character who resisted criticism, but that does not deprive Sergeant Wilson of the responsibility which went with his stripes and which he failed to exercise;

vi) the criticism of the custody sergeant with regard to the strip search of Basil Khan is quite unfounded. As found in the main judgment, he had been given false information by PC Mark Jones.

  1. The Additional Parties say that I have a complete discretion. In my judgment, I certainly do not have an unfettered one under section 2(1) of CLCA 1978, for the reasons already given. Although the Additional Parties did not put their argument in the context of section 2(2) as such, I am not persuaded that the use of the word “may” in that subsection gives the court the wide discretion which the Additional Parties claim. In my judgment it is still governed by the context set out in section 2(1). But even if it does give the Court the wider discretion contended for, I would not exercise it against ordering an indemnity. My reasons for that view are first those given in paragraph 34 above, and second that, as noted in paragraph 33, the effect of such an approach would be to absolve the Third and Fifth Parties from liability in this case, when had they been sued directly they would have been held liable. In the context of this case that would be unjust and inequitable. It was their conduct that caused the damage and that of no-one else.
  2. I turn now to the issue of the percentage split. In doing so, I apply the same test from CLCA 1978;
i) in the case of Mohidin, PC Mark Jones was wholly responsible. I do not consider that there is any reason not to require him to be held wholly responsible for the torts and damage inflicted on Mohidin. Sergeant William Wilson bears no responsibility for what occurred to Mohidin;

ii) in the case of Basil Khan, the original arrest (by Jones) was unlawful. Sergeant William Wilson, although thinking that he should not have been arrested for uttering threats to kill never intervened to substitute anything less serious. Khan was then taken into the TSG carrier, abused and hit by Sergeant William Wilson, and then subjected to racist humiliation and abuse and a serious assault at the hands of PC Mark Jones, but with the knowledge of his superior officer Sergeant William Wilson. His further humiliation, by being handcuffed while kneeling, was the responsibility of both. PC Kitchener added to the mix with his untoward comments, as recorded in the main judgment, but his degree of responsibility for the damage suffered by Khan in the context of the overall whole was marginal. PC Mark Jones then gave false information to the custody sergeant;

iii) in my judgment both Mark Jones and William Wilson were responsible for the false imprisonment of Basil Khan. Both hit him, and Jones’ attack on him and subsequent humiliation of him in the van both on the way to the police station and after its arrival was at the very least condoned by Wilson. I accept that the false allegations which led to the strip search were not made with the knowledge of Sergeant Wilson;

iv) had they been of the same rank, I would have ordered an indemnity of 75% against Jones, and 25% against Wilson. But Wilson was the sergeant in charge, and in my judgment, despite my sympathy for him in having to deal with Mark Jones as one of his crew, he must bear a significantly greater share of responsibility than proposed by the Defendant. In my judgment a fair and equitable split in the case of the damages payable to Basil Khan is Jones 60% and Wilson 40%.

COSTS AGAINST THE ADDITIONAL PARTIES FOUND TO BE AT FAULT

The judge then considered the issue of the recoverability of the Defendant’s costs, and the Defendant’s liability to pay costs, against the two police officers found to be liable.

  1. I turn now to the issue of costs insofar as they relate to the claims made by the Defendant against the Additional Parties. I start by setting out the context of this case and my approach;
i) the general rule under CPR 44.2 is that the unsuccessful party will be ordered to pay the costs of the successful party;

ii) however the court must also have regard to the matters set out at CPR 44.2 (4)-(5);

iii) the Claimants did not join in the Additional Parties as Defendants. It follows that the awards of costs to the First and Second Claimants against the Defendant, and by the Defendant against the Third Claimant, do not include the costs incurred in the making of the Additional Claims by the Defendant against the Additional Parties, nor incurred in defending them. However, as the Defendant joined in the Additional Parties, the successful Claimants must be entitled to any increase in their costs sustained as a result of the joinder by the Defendant, for it is another obvious consequence of joining in other parties that it may increase the costs incurred by the Claimants;

iv) further, any award made to a successful Additional Party is a claim against the Defendant for the costs involved in successfully resisting the Defendant’s claim: similarly an award made against an unsuccessful Additional Party is a claim by the Defendant for his costs in making and pursuing that claim, but the indemnity may include the costs of defending the Claimant’s claim. This is not a case where the response to the Defendant’s defence was that the Claimants joined in the Additional Parties (or any of them) as Defendants;

v) it is appropriate in this case to order a detailed assessment pursuant to CPR 44.6, 47 and paragraph 8.1 of the Practice Direction on costs. That being so, it would be inappropriate for me to deal with any detailed issues as to costs. I can however indicate in broad terms my conclusions about the conduct of the parties under Rule CPR 44.2(5) in so far as it affects the issues on costs now before me.

  1. Awards have already been made as between the Claimants and the Defendant, as recited above. Although some part of the award in the case of the First and Second Claimants was on an indemnity basis, there is no material whatever before me which is relied on as showing that the conduct of any of the Additional Parties’ case against the Defendant, or his against them, should attract an award of costs on an indemnity basis.
  2. I have considered the Defendant’s submission. I have noted the reliance placed on Chadwick LJ in McPhilemy v Times Newspapers. I do note that inBrawley v Marczynski & Anor No.2 [2002] EWCA Civ 1453 [2002] 4 All ER 1067, [2003] CPLR 241, [2003] 3 Costs LR 325, [2003] CP Rep 15. Longmore LJ (himself one of the court in McPhilemy v Times Newspapers) described the principle at [13] thus
“Recent authority has shown that it may also be appropriate to make an award of indemnity costs where there is little or no stigma to be attached to the manner in which the losing party has conducted the litigation, see eg Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer 12 June 2002, [2002] EWCA Civ 879 Para. 31 and Lord Woolf CJ’s re-emphasis in Para. 32 of:

“the point . . . that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm.”

He gives the example of a test case which benefits other litigants. Indemnity costs may, specifically, be also awarded where a claimant makes a Part 36 offer which the defendant should, but does not, accept, see CPR 36.21 and McPhilemy. But despite these examples indemnity costs are, more usually, awarded when, as here, the judge disapproves of a party’s conduct in the litigation.”
  1. In Revenue and Customs v Blue Sphere Global Ltd [2010] EWCA Civ 1448 [2011] BVC 30, [2011] STI 129, [2011] STC 547 Moses LJ at [12] referred to the approach as follows
“If a defendant involves a claimant in proceedings after an offer has been made, and in the event, the result is no more favourable to the defendant than that which would have been achieved if the claimant’s offer had been accepted without the need for those proceedings, the message of Part 36.21 is that prima facie it is just to make an indemnity order for costs and for interest at an enhanced rate to be awarded.” (Petrotrade v Texaco [2002] 1 WLR 947, at [64]; see also paragraph 63 of Petrotrade and McPhilemy v Times Newspapers[2001] EWCA Civ 933 paragraph 28.)
  1. In Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 [2002] CP Rep 67,[2002] CPLR 693, [2002] All ER (D) 39 the Court of Appeal emphasised that the context of a Part 36 offer and its rejection are all important: see Lord Woolf CJ at [31]-[33] and Waller LJ at [34] and [40].
  2. It thus seems to me that the general approach as between Claimant and Defendant, is that where a Claimant beats his own rejected Part 36 offer, it leads to a prima facie case that he should get indemnity costs. But as with any general or prima facie approach it must be applied in the context of the particular case.
  3. What the Defendant in this case seeks to argue is that because he rejected an offer made to him, therefore an Additional Party, joined by him, should indemnify him for his own decision to reject the offer and fight on. As already observed the Defendant had elected to adopt a particular stance in the litigation, which did not involve the admission of liability but advanced no positive case. One of the risks of maintaining that approach was that if a Part 36 offer was made by the Claimant, he could not accept it, but might well be unable to resist the Claimant doing better. I do not consider that it would be just and equitable for the Third and Sixth Parties to have to bear the additional expense of the way in which the Defendant elected to conduct the litigation in the context of a Part 36 offer. I therefore consider that any indemnity as to costs should be on the standard basis, and that the Defendant should be able to recover costs payable by him to the Claimants as if assessed on a standard basis.
  4. The effect of the Defendant’s stance was also that the award of damages were uplifted by 10%, and an enhanced rate of interest awarded from 22ndMarch 2012. That too was a matter for him, and it would not be just or equitable for the Third and Fifth parties to bear those additional burdens.
  5. I must deal also with the question of proportionality. The Additional Parties seek to compare the valuation of the damages to the overall costs of the actions, which they put at £ 500,000. Like some other seemingly simple arithmetical exercises deployed forensically, it is simplistic. Further, if it is well taken, then it may affect the entitlement of the Fourth and Sixth Parties (Messrs White and Brown) to an award of costs in their favour. They are of course jointly represented with PC Mark Jones and Sergeant William Wilson. However I note that nothing in the Additional Parties’ submissions suggests that the Fourth and Sixth Parties should not be awarded their costs, or that they should not get a full award, on the basis that the overall costs were disproportionate.
  6. As I set out in the main judgment, the incident in question took a short time, but its consideration in these proceedings generated a great deal of paper. I have already, in the main judgment, indicated a number of areas where I considered that irrelevant material was introduced, or arguments brought forward which were simply incapable of relevance. I was critical of all the parties to a degree, but it is fair to say that the Additional Parties, or it should be said their advisers, must shoulder a considerable degree of responsibility for what occurred. By way of example, the Additional Parties’ case that the investigation of the incident had been mishandled (at best) or deliberately misconducted (at worst) went to an issue which, as was accepted at the trial, could not and did not take matters any further. The Additional Parties also thought it right to fill up court bundles with documents from the IPCC investigation and related matters, employment tribunal hearings and other litigation, which could not and did not have any relevance to the issues which the Court had to determine. As my judgment also records, the Additional Parties’ and their witnesses’ witness statements also contained significant amounts of irrelevant and prejudicial material.
  7. So far as the Defendant is concerned, he served evidence of the various investigations conducted into the allegations made by the Claimants, and by the Additional Parties (strictly speaking by their families) against the officers engaged in the investigation of the original incident and the criminal proceedings which flowed from it. Given the nature of the attack from the Additional Parties (see for example paragraphs 3A, 29A and 45-47 of the Additional Parties’ Amended Defence), he had to do so.
  8. So far as the Claimants are concerned, I do not consider that it was unreasonable to obtain and serve the evidence on similar fact which was relied on at trial. Although in the event I placed little weight on it, it was relevant and admissible, and properly adduced. That being so, it was reasonable for the Additional Parties to adduce evidence to rebut it. I do not consider that either course of action was unreasonable. Nor do I consider the principle of its adduction or rebuttal disproportionate. If accepted, the evidence supported the Claimants’ cases, and in particular against PC Jones, that his manner of dealing with those he came across of other ethnic origins was violent and excessive. I am aware that there are arguments for the assessment process which will explore whether it was the Claimants or the Additional Parties who were responsible for the incurring of costs in relation to those parts of the similar fact evidence held to be inadmissible by Sir David Eady, and on whether the degree of costs incurred in relation to the calling or rebuttal of the similar fact evidence was unreasonable and disproportionate. I limit myself to saying that the adduction and rebuttal of the similar fact evidence was not unreasonable in principle, nor disproportionate in principle. Whether the amount of costs incurred in that course was reasonable and proportionate will be for the assessment.
  9. I should emphasise that I have been presented with none of the Parties’ assessment of costs. I do not have the material to decide whether the suggested figure of £ 500,000 is correct or not. But it follows from all the above that, when considering proportionality, an overall total, be it £500,000 as advanced by the Additional Parties, or some other sum, is not a proper figure to take. Further, this was a bad case of serious misconduct by police officers against teenage youths both of whom were under 17. Although the claims of injury were exaggerated, both suffered significant harm at the hands of police officers. At the same time, serious allegations were made about the treatment of a third youth by two other officers, who were properly entitled to resist liability for what they had done. Such cases required proper pursuit, defence and representation. Further, it seems to me that a significant part (albeit not the greater) of that figure will be attributable to the unsuccessful claim of the Third Claimant Hegazy, and the unsuccessful resistance of the Defendant’s Additional Claim by PC Mark Jones and Sergeant William Wilson, remembering also that much of the admissible similar fact evidence related to PC Mark Jones’ case, although not all.
  10. The costs relevant to the pursuit and resistance of the claims of the Claimants Omar Mohidin and Basil Khan, and the related Additional Claims, once one winnows out the irrelevant and unreasonable, will come to a great deal less than the total costs figure for all parties in the action, whether that is £ 500,000 or some other figure.
  11. I therefore conclude that there is nothing in the proportionality point which should dissuade me from making an award of costs against the Third Party PC Mark Jones in respect of the claim by Omar Mohidin, nor against the Third and Fifth Parties (PC Mark Jones and Sergeant William Wilson) in favour of the Defendant in respect of the claims by Basil Khan, nor from making one in favour of the Fourth and Sixth Parties against the Defendant in both cases, nor one in favour of the Fifth Party (Sergeant Wilson) in respect of the claim by Omar Mohidin.
  12. I do not consider that I should make any awards as between the Additional Parties and any Claimant. It was a matter for the Defendant whether he joined all or any of the Additional Parties, and he elected not to support or dispute any of the Claimants’ cases on liability.
  13. As the Defendant points out, if I made an order of indemnity or contribution with regard to the costs of the successful Claimants’ claims , that is not a liability which would fall on the Third and Sixth Parties (Messrs Jones and Wilson) personally, because of the role of the Police Federation. That being so, their lack of means cannot be a relevant consideration on the issue of any contribution to costs.
  14. The Additional Parties have argued that it was disproportionate for the Defendant to issue the claims. It is said that the increase in costs thereby occasioned was not proportionate to the likely level of damages. I do not accept that submission, for the following reasons
i) the Claimants were relying on expert medical evidence which, if accepted, would have justified a much higher award;

ii) if the Claimants proved their case on liability, the Additional Claim fell four square within the terms of CLCA 1978. This was a bad case of serious misconduct by experienced officers towards two youths under the age of 17, in which they were assaulted and subjected to racist abuse and humiliation. Had the officers been sued directly by the Claimants, no argument against the payment of costs could have been raised;

iii) I accept that one reason for the stance taken by the Defendant was that he was neutral as to the truth of the allegations made. However, if proceedings were not issued, he would have either had to call the Additional Parties despite the conflicts with evidence from another serving officer (PC Onwugbonu), and he would also have found himself having to deal with the evidence (that of Inspector Cruickshank) which was so important in showing that a significant part of the Additional Parties’ case (which argued that Basil Khan’s complaint was prompted) could not be sustained. If what the Claimants said was found to be true, the Defendant was facing the payment of damages and costs in respect of serious misconduct by officers for which they were wholly responsible, and in breach of their instructions and training. As already stated, I do not consider that it was unreasonable or disproportionate to issue the proceedings for an indemnity or contribution. As already noted, the Additional Parties bear no little responsibility for the level of costs incurred;

iv) in the case of both PC Mark Jones and Sergeant William Wilson, while I note that the Additional Claim also related to what happened to Hegazy, little if any additional costs were incurred, as that matter principally related to The Fourth and Sixth Parties Steven White and Neil Brown. In any event, the Defendant will be unable to obtain any part of his costs in defending that claim from the Additional Parties. All of the Additional Parties are jointly represented through the Police Federation. The reality is thus that the costs of the Third and Fifth Parties resisting the Hegazy allegations will be dealt with as a result of the award in favour of the Fourth and Sixth Parties PC White and PC Brown.

  1. Finally, I would return to the consequence of the Defendant issuing the proceedings for indemnity and contribution. So far as the Fourth and Sixth Parties Steven White and Neil Brown are concerned, and the Fifth Party William Wilson are concerned in the case of Omar Mohidin, the costs incurred by them in resisting the Defendant’s claim realistically included the cost of participation in the action, and of representation at trial. It may be that, on assessment, the costs of the Fifth Party William Wilson relating to the claim of Omar Mohidin are modest given the fact that he would have to be represented with regard to the claims made concerning Basil Khan in any event, but that is a matter for assessment.
  2. I therefore consider that the appropriate course is that
i) The claims of the Defendant against the Fourth and Sixth Parties (Steven White and Neil Brown respectively) in both actions HQ12XO3666 and HQ12XO4814 must be dismissed:

ii) The Defendant must pay the reasonable costs of the Fourth Party (Steven White) and Sixth Party (Neil Brown) of defending the Defendant’s claims in both actions HQ12XO3666 and HQ12XO4814 for indemnity and contribution made by the Defendant, such an award to be on the standard basis.

iii) The claims of the Defendant against the Third and Fifth Parties (Mark Jones and William Wilson respectively) relating to the claim of Ahmed Hegazy (HQ12XO4814) must be dismissed;

iv) The claim of the Defendant against the Fifth Party (William Wilson) relating to the indemnity or contribution in the case of the claim by Omar Mohidin (First claimant in claim no HQ12XO3666) must be dismissed;

v) The Third Party Mark Jones must indemnify the Defendant for the damages and costs which the Defendant is liable to pay to and in respect of the First and Second Claimants (claim no. HQ12XO3666) in the following respects and proportions:

a) 100% of the damages and costs payable by the Defendant to the First Claimant, save that

i) The amount of damages before interest shall be taken as being £2500;

ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012

iii) for the purposes of the indemnity such costs payable to the First Claimant shall be treated as if assessed on the standard basis;

b) 60% of the damages and costs payable to and in respect of the Second Claimant, save that

i) The amount of damages before interest shall be taken as being £11,950;

ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012

iii) for the purposes of the indemnity such costs payable to the Second Claimant shall be treated as if assessed on the standard basis.

vi) The Fifth Party must indemnify the Defendant as to 40 % of the damages and costs which the Defendant is liable to pay to and in respect of the Second Claimant (claim no. HQ12XO3666), save that

i) The amount of damages before interest shall be taken as being £11,950;

ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012

iii) for the purposes of the indemnity such costs payable to the Second Claimant shall be treated as if assessed on the standard basis.

vii) The Defendant must pay the reasonable costs of the Fifth Party William Wilson of defending the claims for indemnity and contribution made by the Defendant in the case of the First Claimant in claim no. HQ12XO3666, such an award to be on the standard basis.

viii) All awards of costs relating to the claims by the Defendant against the Additional Parties, and the Additional Parties against the Defendant, are referred under CPR 44.6 to be assessed by the costs officer, such assessment to be on the standard basis.

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This case has been looked at before on this blog in the context of evidence:

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