England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
((Mr Justice Buckley)

		Royal Courts of Justice Strand London WC2 Friday 6 April 2001

Friday 6 April 2001

1. LORD JUSTICE SIMON BROWN: This is a second tier appeal brought with the permission of Sedley LJ against part of the order of Buckley J made on 12 January 2000, dismissing the appellant's appeal against the order of District Judge Henson on 30 June 1999, striking out three consolidated actions which the applicant had brought against the respondent, the Chief Constable of Thames Valley Police.
2. Sedley LJ gave permission to appeal on a limited basis. First, he gave it only in respect of one of the appellant's three actions, an action begun by specially endorsed writ in January 1998 alleging wrongful arrest and false imprisonment. He did not give permission with regard to actions respectively for malicious prosecution and for slander. Secondly, he gave permission only in respect of a particular cause of action, namely a claim pursuant to section 22(1) of the Data Protection Act 1984, and not for a claim (which was apparently floated before him) also in negligence.
3. The facts relevant to the appeal can be briefly stated. In December 1993 the appellant was disqualified from driving for four years by the Windsor Justices, having been prosecuted by the Thames Valley Police and convicted of two drink driving offences. On appeal to the Crown Court, the period of disqualification was reduced to two years, ending on 1 December 1995. Regrettably, however, the Police National Computer record was not properly amended to reflect the outcome of the appeal. It is not altogether easy to see precisely what happened, but the PNC entry was clearly capable of being understood to indicate that the appellant remained subject to a four-year ban. It rather looks as if the Thames Valley Police attempted to have the entry corrected but that the DVLA failed to achieve this, with the result that it read:

"Warning: report expired 01/12/95. DVLA expiry 01/12/97."

4. Thus it was that on 4 September 1997, some 21 months after the appellant's disqualification had in fact ended, he nevertheless came to be arrested by officers of a different police force, the Surrey Police, on suspicion of driving whilst disqualified and was detained on that account for some two and a half hours before being released.
5. The appellant's first claim for damages arising out of his arrest was made against the Surrey Police. Before even proceedings were issued, however, that claim was settled in January 1998 for £950. The solicitor for the Surrey Police Force wrote to the appellant on 6 January 1998 explaining how the DVLA had failed to amend their records, recognising that there was indeed fault on the part of the arresting officers, and stating:

"You may be aware that the Court of Appeal have issued guidelines on the award of damages in the civil actions against the police for false imprisonment. These guidelines suggest a starting figure of £500 for the first hour of detention, up to a maximum of £3000 for the first 24 hours. On this basis I calculate that if a court were to find that you were wrongfully arrested and falsely imprisoned, you would receive an award of between £750 and £800. Taking into account the other aggravating factors to which you have alluded in your correspondence, I am prepared to recommend a payment of £950 in full and final settlement of any claims you may have against the Surrey Police arising from this incident."

6. On 14 January, the appellant accepted that offer in these terms:

"I accept your offer of £950 which takes care of my arrest, detention and embarrassment. I reserve the right to draw attention to the motoring issue [in circumstances not presently material]."

7. The writ against the respondent police force followed within days. As stated, it is brought, so far as now relevant, pursuant to section 22(1) of the 1984 Act:

"An individual who is the subject of personal data held by a data user and who suffers damage by reason of the inaccuracy of the data shall be entitled to compensation from the data user for that damage and for any distress which the individual has suffered by reason of the inaccuracy."

8. The respondent Chief Constable in fact disputes that he, as opposed to the DVLA, was the data user in respect of the inaccurate entry in this case; and, I think, would dispute too that any fault on his part was causative of the arrest, given that the Surrey Police themselves clearly should have known better than to arrest the appellant in the light of the actual DVLA entry. The Chief Constable accepts, however, as he accepted before both the District Judge and Buckley J, that for the purposes of a strike-out application, such as we are concerned with here, such issues as these cannot be decided and must accordingly be assumed in the appellant's favour.
9. The respondent's central and critical argument is that nevertheless the action was impermissibly brought and has been rightly struck out because it advances a claim for damages in respect of which the appellant has already been compensated by the settlement of his claim against the Surrey Police. The Thames Valley Police and the Surrey Police, submits Mr Warnock in his helpful skeleton argument (on which we did not find it necessary to invite oral elaboration), were concurrent tortfeasors in that, although the respondent is liable by reason of a different cause of action, both Forces, on the facts assumed, caused the same damage to the appellant. In settling his claim against the Surrey Police, the appellant crystallised the value of that damage and he cannot now, in a further action, claim more from the respondent. In short, submits Mr Warnock, this case is essentially indistinguishable from the House of Lords decision in Jameson v CEGB [2000] 1 AC 455.
10. Although perhaps that puts the point rather too high, even if strictly the two Forces here are not to be regarded as concurrent tortfeasors, in my judgment they are plainly in a very closely analogous position, and I would regard the case as falling completely within the dictum of Robert Walker LJ in Kenburgh Investment (Northern) Ltd v Minton [2000] LLR PN 736 at 744:

". . . I would not exclude the possibility of the [Jameson] principle being extended to closely analogous situations (although where the two actual or potential defendants are not liable in respect of precisely the same damage, abuse of process may be a safer foundation for the court to restrict further proceedings. . . )"

11. Mr Hawkin for the appellant (and let me at this stage record our gratitude to him for conducting this appeal on a voluntary basis, and thereby providing the court with very considerable assistance) contests this analysis. He draws attention to what Sedley LJ said when granting permission to appeal:

"I consider that the argument now advanced under the Data Protection Act 1984 is available on Mr Ogle's homemade pleading and is not necessarily precluded by his settlement with the Surrey police. Arguably the nature of the damage is different.

I do not consider, however, that the case in negligence is separately sustainable. Here the situation seems to me to be governed by the House of Lords' decision in Jameson v CEGB: the damage caused to Mr Ogle was precisely his arrest by the Surrey police."

12. What in essence Mr Hawkin submits is that Mr Ogle's acceptance of the Surrey Police's £950 offer was not in full satisfaction, but only in partial satisfaction, of his overall claim for damages. Section 22(1) of the 1984 Act in terms allows for recovery not merely of compensation for damage caused but also "for any distress which the individual has suffered by reason of the inaccuracy".
13. Here, Mr Hawkin argues, the respondent's failure to ensure that the computer record was effectively corrected once the Crown Court appeal had succeeded, so that the appellant was still inaccurately recorded (at least on one reading of the PNC entry) as disqualified 21 months after his ban ended, "caused me alarm and distress". (I quote there from the proposed amendment to the appellant's statement of claim, an amendment which, for the purposes of this appeal, we should assume to be made). This consideration, submits Mr Hawkin, enables the appellant to bring a fresh action for further damages. True, he accepts, the appellant can no longer claim damages in respect of the wrongful arrest and false imprisonment (as the unamended statement of claim purports to do); true, too, he concedes, "the quantum of this claim would ultimately not be the greatest". But, runs the argument, the appellant has still not been compensated for his distress and his action should therefore be allowed to proceed to this limited extent.
14. I have difficulty with this argument. What to my mind it overlooks is the clear principle that damages recoverable for wrongful arrest and false imprisonment include whatever sum or uplift is appropriate to reflect any particular distress occasioned to the claimant by that arrest and imprisonment. Mr Hawkin seeks to meet that point by suggesting that the appellant's "alarm and distress" here are not only what he has suffered through his arrest and detention, but stem rather from the conduct of the Thames Valley Police in failing to secure an effective correction to the PNC entry. The transparency of that argument, however, seems to me apparent from a consideration of the language of the original form of writ settled by the appellant himself:

"The Plaintiff's claim is for damages for wrongful arrest and loss of liberty on 4th September 1997 as a result of the failure of Thames Valley Police to maintain a correct and up to date record on the Police National Computer. . . "

15. There is nothing there hinting of any distress occasioned independently of the arrest and detention, namely by the Thames Valley Police's incompetence or bad faith in failing to ensure that the PNC entry was corrected. To my mind, the suggestion that a viable claim could be brought for damages for additional stress on that footing is quite absurd. Not least is that so when one reflects that, on the facts likely to be established here, the fault in any event lay rather with the DVLA than with the Thames Valley Police.
16. I for my part am satisfied that this case is indeed so closely analogous to Jameson that it would be impermissible to allow the claim to proceed unless only a cogent claim for a discrete head of damage or distress were available to this appellant. To my mind, it is not. In these circumstances it would be an abuse of process to allow the action to proceed.
17. I add by way of footnote this. In a judgment I gave (and with which Longmore LJ agreed) on 16 January 2001 in Gary Lee Hough v Chief Constable of the Staffordshire Constabulary (where we held that in the circumstances of that case an arresting police officer could properly rely on a PNC entry and so should not have been found liable for wrongful arrest) I suggested, in paragraph 18:

"Perhaps, however, a claim in negligence would lie against the officer making the entry in the first place (or perhaps for failing later to remove it) if it could be established that he had no proper basis for ever having made it."

18. I was unaware at that time of the provisions of section 22(1) of the Data Protection Act 1984. Now that this section has been drawn to my attention, it would seem to me to provide an altogether better basis for such a claim than the tort of negligence.
19. For the reasons I gave earlier, however, it cannot avail a claimant like this appellant, whose claim for damages for wrongful arrest has already been met.
20. For these reasons I would dismiss the appeal.
21. LORD JUSTICE MANCE: I agree. The appellant has devoted to the subject matter of this action and appeal a great deal of attention and effort since 4 September 1997, when he was arrested and thereafter learned that the cause of his arrest was an out of date entry on the police national register, which is subject to the Data Protection Act 1984.
22. The claim which he made in his writ against the Chief Constable of the Thames Valley Police, in his action 1998 R No 1798, was framed as follows:

"The Plaintiff's claim is for damages for wrongful arrest and loss of liberty on 4th September 1997, as a result of the failure of Thames Valley Police to maintain a correct and up to date record on the police national computer as required under the provisions of the Data Protection Act 1984, and specifically the requirements of the fifth data protection principle, which requires that personal data shall be accurate and kept up to date."

23. He then went on to explain in greater detail the circumstances of the arrest and the out-of-date nature of the computer record. It was in fact some 20 months out of date. This resulted from the fact that his original sentence to four years' disqualification was reduced to two years' disqualification and that reduction was not fully reflected on the computer.
24. The loss thus claimed for the breach under the Data Protection Act consisted, and consisted solely, of damages for the wrongful arrest and loss of liberty which the appellant was unlucky enough to suffer on 4 September 1997. Counsel (who has helpfully appeared before us and put in helpful written submissions as well as made oral submissions) pointed out that this was a home-made claim, but it must be seen in the context of a litigant who is articulate and thorough and, so seen, it seems to me that it does not assist to suggest that he may have omitted some real grievance which he felt at the time.
25. We asked during the course of the hearing to see any indication of any further claim for additional damages or distress being made or suggested prior to the present time. In particular, we asked whether there was any suggestion of distress arising from the mere fact of the failure to keep a properly up-to-date computer record, as distinct from the resulting wrongful arrest and loss of liberty. Similar points were, I note, considered in each court below and received a somewhat different response on each occasion. Before the District Judge on 30 June 1999, attention was drawn to the letter dated 14 January 1998, which the claimant wrote to the solicitor for the Surrey Police in the course of the negotiations which led to his accepting £950 in satisfaction of his claims for arrest, detention and embarrassment as against the Surrey Police, who were the immediate arresting force. He added in that letter:

"I reserve the right to draw attention to the motoring issue if I lose the existing case, and the motoring incident can be seen to have been a contributory factor in my failure to produce sufficient information in the suggested time."

26. Before Buckley J on 12 January 2000 reference was made to further damage:

". . . in that he apparently was involved in some other High Court proceedings which were going to the Court of Appeal. Although this was not in his affidavit, he feels that the time spent in the police station would have been better used preparing for the hearing in court. He might have got a better result."

27. That type of suggestion is not pursued before us. What is suggested takes the form of a draft amended pleading which, instead of the words "wrongful arrest and loss of liberty" reformulates the claim by reference to distress so that it reads as a claim "for damages for distress from 4th September 1997 and continuing thereafter." There is also a reference to his wrongful arrest and it is proposed supplementing it by the words "and subsequent unlawful detention". But it seems to me that that must clearly have been catered for by the sum received from the Surrey Police Force. Finally it is proposed to plead:

"The failures of Thames Valley Police in these respects have caused me alarm and distress and I accordingly claim compensation pursuant to Section 22(1) of the Data Protection Act 1984."

28. We were shown, in answer to our question whether this type of claim had ever previously been suggested, what I understood to be the high water mark of previous material, pages 135-136. Having read those, they do not seem to me to assist the point at all. Rather to the contrary. They confirm that, as at the date of that handwritten first affidavit, which was 14 December 1998, the appellant did not have in mind any such claim as is now proposed.
29. The whole concept of the present proposed claim is, on the facts of this particular case, one which I find it extremely difficult to accept. The essential shock must have been the wrongful arrest and loss of liberty. The idea that the appellant suffered distinct shock at police incompetence at maintaining the police register is hard to grasp. Medical certificates now produced to counsel's certificate lend it no support. They are in a very general form and certainly do not support the particular point now alleged.
30. I am prepared to start by reviewing the matter on the basis of an assumption that the amendment is in the arena, although on any formal application to make such an amendment its prospects would have to have some materiality. The context in which the proposed amendment is now put forward is, of course, that it has now become potentially very important to the continued pursuit of this litigation whether such additional distress can be shown to have been sustained. The way or ways in which the matter was put before the judges below are not being pursued and this is now the basis on which it is wished to pursue this litigation. Mr Hawkin said (and this was a point where it did seem to me that his submission became even less realistic) that the fact that the appellant wished to pursue the litigation should itself lend credence to the suggestion of further distress. That, as my Lord said in argument, is not the experience of this court.
31. For my part, I would accept that the £950 received from the Surrey police can only go to loss, including, of course, distress (or, as the appellant put it in his correspondence "embarrassment") arising from the wrongful arrest and loss of liberty. It cannot go (because that would not have been an available claim against the Surrey Police) to any wider distress, arising simply from failure to maintain a proper computer record, which the appellant might plausibly suggest that he sustained irrespective of the wrongful arrest and loss of liberty. The claims for wrongful arrest in tort and the claim for compensation under the Data Protection Act are, in conception, different. They involve distinct causes of action; in other words, distinct factual bases. One is in fact a common law tort claim, whereas the other is under a specific statutory provision entitling an individual in certain circumstances to compensation. So I would not regard this case as directly within the authority of Jameson v CEGB [1999] 2 WLR 141.
32. That, however, as my Lord has pointed out, is not the end of the matter. The passage in Kenburgh Investment (Northern) Ltd v Minton CA 28 June 2000, in Robert Walker LJ's judgment, to which my Lord has referred, identifies the merging of the area of the law considered in Jameson into a wider principle of abuse of process. In the present context we are in any view also bound to consider whether any amendment would be permitted as having any real prospect at all. It seems to me that it would have not. It would, in the light of the circumstances that I have set out, be one which was bound to fail.
33. This is in reality an attempt to keep an action alive on a basis never originally hinted at, one which has no intrinsic plausibility and no evidential support, and one which is only raised at a time when it has become legally critical to raise it if this action is to survive at all.
34. With these additional reasons, I agree with the judgment which my Lord has given.
ORDER: Appeal dismissed with costs.