England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No LTA 98/5629/2

Royal Courts of Justice

Strand

London WC2

Friday, 26th June 1998

B e f o r e:

LORD JUSTICE KENNEDY

LORD JUSTICE MORRITT

MORRIS

Applicant

- v -

KWIK SAVE STORES LTD

Respondent

(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

The Applicant Mr Morris appeared in person

The Respondent was not represented and did not attend

J U D G M E N T

(As Approved by the Court)

(Crown Copyright)

LORD JUSTICE MORRITT: This is an application by the plaintiff, Mr Morris, for leave to appeal and an extension of time within which to do so from the order of His Honour Judge Gibson sitting in the Lambeth County Court made on 16th February 1998. By that order the judge awarded to Mr Morris £350 damages for wrongful arrest on 6th March 1995, the wrongful arrest involving the defendants, their cashier and manager. Mr Morris contends on a number of grounds that the award of damages in his favour was insufficient, and that in addition to compensatory damages he should also have been awarded aggravated and exemplary damages.

The facts, in summary, are as follows. On 6th March 1995 Mr Morris, as was his then wont, was shopping at the Kwik Save Store in Walworth Road, London. In circumstances I will describe in greater detail later, he was accused by the cashier and the manager of shoplifting. Also involved was a store detective or security guard employed by an independent contractor called Temple Security Services Ltd. Mr Morris was greatly concerned at this false accusation. On 2nd March 1996 he obtained a psychiatric report from the Maudsley Hospital as to the distress and inconvenience caused to him by the false accusations. On 3rd April 1996 he instituted proceedings in the Lambeth County Court against Temple Security Services Ltd, claiming against them, in relation to the actions of their servant the security guard, compensatory and exemplary damages in respect of the incident of 6th March. On 24th January 1997 he recovered judgment in Lambeth County Court against Temple Security Services Ltd for £1,500 odd, but his claim in those proceedings for exemplary and aggravated damages was dismissed.

This action was commenced by Mr Morris on 20th March 1997 against Kwik Save in relation to the same incident. On 16th April 1997 Kwik Save accepted that there had been an incident when he had been wrongly accused but denied the sting of the allegation made by Mr Morris. The application of Kwik Save to dismiss his claim as being frivolous and vexatious due to the pre-existing judgment in his favour against Temple Security Services Ltd was dismissed by the district judge on 14th August 1997. The action came on for trial before His Honour Judge Gibson on 16th February 1998. On that day, at 11.20 a.m. in the morning, Mr Morris was handed by the solicitor for Kwik Save a copy of this court's judgment in Thompson v Commissioner of the Police for the Metropolis [1997] 2 All ER 762. The photocopy that he was handed was, he said, only partially legible. He sought, and was refused, an adjournment. The hearing commenced at about 3 p.m. in the afternoon. He told us that the defendants' solicitor indicated that they did not contest liability. The defendants did not call any evidence. When Mr Morris sought to give evidence he was cross-examined as to the absence of any physical interference and matters of that nature. He protested, so he told us, at the lack of any evidence from the defendants giving a true picture of the events as he said they occurred.

In the note of his judgment, which we have and to which I shall have to refer in greater detail later as to one of the allegations Mr Morris makes, the judge summarised the facts as follows:

"He went into the store in order to buy groceries. His case, which is not challenged on the facts, is that he completed a purchase of four different items. He paid a £5 note for these items and received change from a particular cashier.

He suggests that he must have dropped the receipt. I accept this. The relevant till receipt was later found in the vicinity.

Within minutes of leaving the store, the plaintiff realised that he had forgotten kitchen towels. He went back into the store with the other shopping and obtained kitchen towels. He passed through the same checkout. He says that eight minutes elapsed between the purchases.

When he went out of the store for the second time, he was detained by a Security Guard who brought him back into the store.

The Guard was present for the remainder of the encounter but did not actually participate in it.

Mr Morris complains in these proceedings about the conduct of the manager and cashier."

The note of the judge's judgment indicates that the judge then considered Thompson v Commissioner of the Police for the Metropolis , and he referred to the other action against Temple Security Services Ltd.

He returned to the facts of the case before him as follows:

"The cashier was first involved when Mr Morris came back into the store. The plaintiff said to her, ´You remember me, don't you?' The cashier brushed that suggestion aside and without doubt denied that she had served Mr Morris on the first occasion.

As a result, the manager was brought on to the scene. The plaintiff complains that the manager was hostile and said ´I'll call the police.' Mr Morris accepts that no one laid a hand upon him, but this was due to Mr Morris raising his voice and drawing the attention of other customers.

The plaintiff complains that the manager did not allow him to look for the receipt. The manager told him not to.

The plaintiff made a grab at the receipts and luckily, he found his receipt on the floor.

That was the key that unlocked the door and Mr Morris was allowed to go. He suggested that the manager make an apology, and he got a mumbled apology from the manager.

Mr Morris was very shaken at the time and cannot now visit the store."

The judge then referred to the report from the Maudsley Hospital which I have mentioned and continued with his decision. First, he referred to the £1,500 Mr Morris had been awarded in the proceedings against Temple Security Services Ltd and the judge said:

"That related to the consequences immediate and not immediate of the wrongful arrest and the coercion back into the store. Mr Morris is entitled to be compensated for suffering in the store caused by the manager and cashier.

I take the view that the incident, wrongful though it was, was not abnormal and [that this is] not a case for aggravated damages, still less for exemplary damages.

Mr Morris did suffer more due to the incident than another might have done in his [position].

The incident itself lasted for 20 minutes. Judge James awarded compensation for the first (with the guard) and the later suffering. I find it impossible to see any part of the experience and suffering referred to in the medical report before Judge James that was not compensated.

I think that Mr Morris should be compensated only [in respect of] time in the store."

The judge then referred to Thompson and the suggested starting point for liability of £500 for the first hour. He continued:

"In this case it was in a public place and very embarrassing. Against this, I must allow for the fact that Mr Morris was already under restraint due to the actions of the Security Guard. Having regard to the guidance of the Court of Appeal and that part of the suffering for which he has already been compensated, damages are assessed at £350. Nothing that happened later needs further compensation."

On 18th March Mr Morris submitted his application for leave to appeal. In connection with that it is necessary to obtain a note of the judge's judgment. He applied to Lambeth County Court for a note and was told that there was not one. The defendants' solicitor provided a note that he had made for the approval of the judge. The note was approved by Judge Gibson on 24th April 1998. Mr Morris wrote to the court complaining that the note of the judgment was not an accurate summary of the judgment the judge had given. This was accepted by Judge Gibson in a letter of 29th May 1998 written by the listing section of the Lambeth County Court which says:

" ..... [it] has been placed before the circuit judge ..... "

and the circuit judge said:

"Responsibility for the sentence ´The cashier was first involve[d] when Mr Morris came back into the store is mine not that of the defendants' solicitors[.] I accept that it is inconsistent with passage in Mr Morris's witness statement which were not challenged in cross-examination[.] Whether this is significant is a matter for argument. As I have concluded my function [in] the case it would not be right for me to comment."

Before us Mr Morris put his case on three separate grounds. First, he complained that by virtue of the defendants admitting liability they avoided the necessity of calling the cashier and the manager, thereby obscuring from the judge the severity of the false allegation that had been made and its effect on Mr Morris. It is suggested that, as a result, they avoided the liability which they otherwise would have incurred for exemplary and aggravated damages. I, for my part, do not accept that suggestion. The fact is that the judge was well aware of all the circumstances, subject to the point on the note of judgment, on which Mr Morris relied. And the absence of witnesses from the defendants was no reason to interfere with the judge's judgment or the conclusions he reached on the matters which were in issue before him.

The second point was that there was unfair conduct of the trial. In that respect Mr Morris complains that he was handed an illegible copy of Thompson v Commissioner of the Police for the Metropolis at 11.20 am and was refused an adjournment. The fact is, as he told us, that the trial commenced at 3 pm. The trial was inevitably somewhat truncated because of the admission of liability. I, for my part, cannot see that the intervening 3 hours 40 minutes was not adequate time for Mr Morris to prepare by reading Thompson v Commissioner of the Police for the Metropolis and making such other notes or submissions in due course as he wished. He complains that the judge was, in his view, obdurate. That is as may be. The judge was performing his judicial function, and I cannot see anything wrong in refusing the adjournment.

The third point arises in relation to the note of judgment. Mr Morris evidently considers that the solicitor was seeking to mislead this court. I do not take that view. The judge accepted that he was in error in saying that the cashier was only involved when Mr Morris re-entered the store whereas Mr Morris's own statement had indicated that the cashier was involved on the first occasion when he pointed Mr Morris out to the security guard, and it was in consequence of that action that the security guard followed Mr Morris out on the later occasion. Be that as it may, that is no reflection on the defendants' solicitor. I, for my part, do not see how it makes any difference to the award of damages at which the judge arrived, bearing in mind, as he did and as he was entitled to do, there had already been a judgment in favour of Mr Morris and against Temple Security Services Ltd for £1,500.

The other inaccuracy relied on, as I understood it, was that the judge referred to Mr Morris's case before him as not abnormal whereas at the trial it is said that he referred to the case as a standard case. I cannot regard that difference as being in any way material as to the nature of the trial.

For all those reasons I would refuse this application because I do not see that there is any point which is reasonably arguable before the full court if leave were granted.

LORD JUSTICE KENNEDY: I agree.

Order: Application dismissed