England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(MR RECORDER JACK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2012

Lord Justice Moses:

1. This is an appeal which raises the issue as to the management of a trial which lasted six days between 3 October 2011 and 10 October. The two essential issues that it raises relate to a decision of the Recorder, Recorder Jack, at Birmingham County Court that, in order to accommodate the trial within the available time, the West Midlands Police should not, in resisting a claim for assault and false imprisonment, be entitled to call a number of witnesses they wish to call, police officers and civilian detention officials, that claim being brought against them by the claimant, the respondent to this appeal, Mr Lorenzo.
2. The second issue which arises is as to whether the jury that gave verdicts broadly in favour of Mr Lorenzo were subjected to improper pressure by being required to limit the time in which they conducted their deliberations.
3. The claim that was brought was for assault and false imprisonment by Mr Lorenzo when police were called to his house on 20 November 2007 in response to an allegation of assault. He contended that, during the course of his assault that constituted false or unlawful imprisonment, he was assaulted on six separate occasions and subjected to racist abuse.
4. The trial unfortunately took place many years later, as alas is not uncommon, and it started, as it was planned to start, on 3 October 2011. Sensibly Mr Chippeck, counsel on behalf of Mr Lorenzo, produced a detailed template containing the times that he foresaw witnesses would need in order to give their evidence in chief and be cross-examined. Defence counsel had not been in a position to respond to that.
5. The trial continued throughout that week. It could not sit on Friday afternoon in anticipation of a religious holiday the following day. Counsel had very properly notified the court of this but unfortunately, through the court's fault and not the parties' fault, the defence were not aware of this until they arrived at court on the Monday.
6. By the Friday, 7 October 2011, it became quite apparent that there would not be time to finish hearing all the witnesses and send the jury out to consider their verdict on the Monday. Accordingly there was argument as to what should occur and the judge ruled that certain of the witnesses that the police wished to call should not be called.
7. In a careful judgment, given whilst the jury were considering their verdict, the judge on Monday 10 October 2011 set out his reasons for taking the course that he did. He is, in my view, to be commended for doing so. The reasons which he set out show that he carefully considered and weighed the matters he was required to consider, before taking what has to be accepted was the serious step of declining to allow the police to call all the witnesses they wished to keep. But the careful explanation of those reasons in a detailed judgment enables this court to see the strength or otherwise of the considerations which weighed with him. Let it be said at the outset that which is trite, namely that this court cannot and should not interfere with case management decisions such as this unless the conclusions of the judge are outwith the range of reasonable conclusion. If authority is needed for so well-settled a proposition it can be found in Walbrook Trustee (Jersey) Limited v Fattal [2008] EWCA 427 at paragraph 33.
8. The judge, in setting out the reasons for his conclusion, dealt in detail with the conduct of the case during that week between 3 and 7 October when it became apparent that the time demanded that witnesses be curtailed or the trial would have to be abandoned, in his judgment on 10 October.
9. In particular, he drew attention to the fact that the counsel for the police had had a substantial amount of material on which to cross-examine and had cross-examined Mr Lorenzo, as the judge put it, "very minutely on everything".
10. He also drew attention to the time that had been taken in showing a video of cells in which it was alleged two of the assaults had taken place but which had not been prepared in a manner adequate either to demonstrate to the witness by way of cross-examination or to the jury the points that the defence sought to advance in cross-examination of the claimant.
11. This led the judge also to make, during the course of the discussion on the Friday 7 October, further remarks in relation to cross examination. She said that the time spent on the claimant's case was disproportionately large. Unsurprisingly this has led to considerable dispute between the parties, now represented on both sides by leading counsel, as to whose fault it really was that the original time estimate of five days was going to be substantially overrun. In my view it is quite impossible to determine precisely whose fault it was, nor is it necessary to do so.
12. The best person in the position to form a neutral judgment about whether one side or the other was responsible for unnecessary delay was the judge himself. He plainly did not reach the conclusion he did, curtailing the number of witnesses, on the basis solely that it was defence counsel's own fault and in my view it is not necessary to say more about whose fault it was that the time estimate proved inadequate at this stage. Rather, it is better to focus upon the reasons that the judge deployed for reaching the conclusion that he did.
13. He drew attention to the legal costs that had been incurred: £25,000 for each side and a very large number of police officers who had been spending their time, somewhat surprisingly, sitting in court listening to all the evidence" (see paragraph 31 of his judgment).
14. He next turned to what I regard as an important feature of the consequences of the delay. During the course of the argument about the delay, counsel for Mr Lorenzo, in putting forward the costs on his side of £25,000, said this:

"They will be at £25,000 which will not be extended any further so, were the defendant's application to successful, that could end the claimant's claim"

The Recorder said "Yes" and continued, later on:

"...quite apart from the fact that Mr Lorenzo's counsel is saying that it [that is, the retrial] will not happen because legal aid will not be extended for it.."

15. There was no demur from counsel for the police. No discussion took place as to the accuracy or otherwise of what the judge was being told. Today Mr Fisher QC, on behalf of the West Midlands Police, questions whether it can be right that the claimant, if there had been a retrial, would have been refused any legal costs for legal assistance. But it is far too late, in my view, to do that today. If the West Midlands Police wished to challenge the proposition that if there was a retrial it would mean Mr Lorenzo was unrepresented, they should have done so at the time. As it was, the judge could do no other than proceed on the basis that, if he granted a retrial, because the case could not be concluded in the appropriate time, then Mr Lorenzo would have to conduct that retrial himself.
16. I am in no position to say whether it is right or not that the Legal Services Commission would not have given any money for further representation. We were told by Mr Tomlinson QC that there had been discussions between responsible solicitors acting for the claimant and the Legal Services Commission, which led to the information I have identified being given to the judge. The fact of the matter is that that was what the judge was told, and it is of note that in Ground 6 of the notice of appeal it is not disputed, but rather it is said that the judge should not have taken into account the fact that Mr Lorenzo would be unrepresented on a retrial. That, in my view, is wholly incorrect. It was clearly a factor, and an important factor, in the decision for the judge and it was a factor that clearly weighed with him. As the judge put it :

"...if public funding is not going to be available for any retrial to Mr Lorenzo then he was going to be at an unequal footing with the defendant since he would have had to act as a litigant in person."

17. West Midlands Police did not dispute that at the time and, I may add, if that was the position with which they were faced and they were desperate to call all their witnesses, they could of course have offered financially to assist Mr Lorenzo in his representation at the retrial. That is easy to say with hindsight. It did not happen at the time. The important point is the judge was compelled to proceed on that factual basis and he did so.
18. In those circumstances the judge, being faced with the prospect of five days having been wasted, enormous time and expense having been wasted and the foreseeability that Mr Lorenzo would not be represented on a retrial, he proceeded to consider the question as to what witnesses it might be possible to compel the defence to do without. He identified four witnesses who he would not allow West Midlands Police to call. It is now said that they were important witnesses in relation to important issues, particularly focused on assaults that were said to have taken place in two cells in the police station. One of them was the senior officer there at the police station, Sergeant (Acting Inspector) Holliday. The judge dealt with him specifically, saying that he was a corroborating witness and, since questions of the regular reviews of a prisoner in custody were not in issue, he could be dispensed with. He described another of the witnesses, PC Beard, as being relevant to alleged assaults in the first cell, at paragraph 50 of his judgment; a civilian officer Detention Officer Madley who was involved in cleaning out the cell as not having important evidence to give; and another officer, PC Beggan, who he described as being a corroborating officer of minor importance (see paragraphs 52 and 57).
19. He concluded that the West Midlands Police would be deprived of some corroborative evidence in relation to alleged assaults in the two prison cells. In my view the judge was, again, in a peculiarly good position to appreciate the importance or otherwise of being allowed to call those witnesses in addition to the two witnesses who did give evidence about what had happened on the way to and in those two police cells. He had to consider of what the police would have been deprived by not being allowed to call those witnesses and weigh against that the consequences of the wasted trial in the respects which I have sought to identify.
20. In my view, it is quite impossible to say that he conducted that balancing exercise in such a way that it was outwith the range of reasonable conclusion. What he did was to consider what was fair and proportionate in circumstances that made it consistent with the Overriding Objective.
21. The Overriding Objective (see CPR 1.1) draws specific attention to the need to deal with cases justly. Dealing with cases justly involves not dealing merely with the case before the particular judge but also with the cases of other litigants waiting for their litigation to be conducted in the courts. It requires cases to be conducted proportionately, having regard to the importance of the issues and the amount of money involved and specifically the financial position of each party (see 1.1(2)(iv)). In my view the approach of the judge amply demonstrates the proper deployment of that Overriding Objective in the context of CPR 32.1, which enables the judge to exercise the power to curtail the evidence being adduced.
22. In my view West Midlands Police has failed to demonstrate that the judge's approach was wrong either in law or in the process by which he weighed the competing considerations. In those circumstances, in relation to that part of the appeal I would dismiss it.
23. The second issue relates to what is said to be improper pressure placed upon the jury before they returned their conclusions on the question which they were required to answer. They were required to answer, if it is split into separate parts, some 20 questions in relation to alleged assaults outside Mr Lorenzo's flat and in the police station. It is apparent that they carefully considered each of those questions, answering some of them in favour of Mr Lorenzo and some of them in favour of the West Midlands police. As the judge put it, when considering the effect of the verdict and the amount of damages, it is apparent that the jury accepted the broad case put forward by the police but thought that the officers went further they were entitled to in the struggle on the floor of the lobby outside his house (see paragraph 6 of his judgment in relation to the damages given on 12 January 2011).
24. The jury were given to understand that something was expected of them on the Monday when the judge gave instruction to them on Friday 7 October. I deliberately put it in that vague manner, because there is no transcript of the judge's remarks on Friday 7 October and a dispute about precisely what he said. In the police skeleton what is said is that:

"The Recorder told the jury, after his interlocutory direction on Friday, that there had to be sufficient time on Monday for speeches and summing up, as well as a reasonable time for their deliberations. Thus were they told that they had to return verdicts on Monday."

It is tolerably clear from that that it was not suggested that the judge told them they had to return verdicts on Monday.

25. A more contemporaneous account from counsel for the police, however, is to be found in the skeleton argument he proffered to the judge at the time complaining about the approach of the judge :

"Furthermore, this Jury has been informed that they must answer these questions on Monday: the jury are therefore aware of the deadline."

There are, as Longmore LJ remarked, deadlines and deadlines. The real question is whether the jury were put under improper pressure. The jury, on examination of the transcript of the course of their deliberations, certainly gave no sign of that. The jury went out at 2.27. There was a discussion as to when a majority verdict should be given, quite properly, between both counsel, although it was suggested today there had been no such discussion and the jury were, it appears, brought back shortly after two hours had elapsed. It is important to note that at that time they did appear to have reached an agreement but it was not unanimous. The foreman said:

"We have made a finding on all the questions asked but we are not in unanimous agreement on all of the questions. On three of the questions we have a majority decision."

26. In other words they were not sure what was and what was not an acceptable majority. They were told what the majority acceptable would be, seven to one, and they were then left for further consideration until about 5.15. They came back at about that time and told the judge that they had made their findings, but that there were two questions on which they had done no better than reach a majority of six to two. That apparently was not acceptable and the judge sent them out again in relation to those two questions, saying this:

"...as you will appreciate the costs of these trials not just to the public purse but also to the parties is very extreme so I would ask you to make a last attempt at those last two questions [those are the questions about which they had not reached a majority of seven to one].

Obviously let me make it clear. Each of you jurymen and women are obliged to act in accordance with the oath that you took at the outset of this matter so do not feel under any pressure to give way in order to simply reach a verdict on which you are all agreed or on which seven to one of you agree. But, members of the jury, do listen to each other's arguments and weigh up whether there is some form of -- whether the arguments are good and sound and whether you can see where the other jurors are coming from so that you can continue to keep an open mind and listen to each other's decisions."

27. The jury then did come back shortly afterwards and answered all the questions on which they had reached a majority conclusion, except for the two in which they had not and, which the parties then accepted, did not require resolution.
28. The question arose as to whether, looking at all the circumstances and doing the best that it is possible to do about what instructions the judge gave the jury, they were being told that they had to reach verdicts on that day or otherwise they would be discharged. In my view, they were not told anything of the sort. It is clear that they were expected to reach verdicts on the Monday and they must have been under that clear impression not merely because of what the judge said to them but because they had sat early and they had only been allowed a very short period of some 20 minutes or so to find the sandwiches, there being no refreshment facilities at Birmingham County Court for that jury.
29. But the question for this court is whether we can distil from all those facts an inference that they were induced, or some of them were induced, to agree upon a verdict that they would not have otherwise agreed because of pressure of time. For my part, I am quite unable to draw that inference. They were certainly not told what the consequences would be if they did not agree, were not threatened with being discharged, nor told that one of the problems was that counsel for the police was not available on the following day and that the Recorder also was in difficulties.
30. The discussion led to the problem of the compatibility with the Overriding Objective with juries trying civil cases to which at least some of the provisions of the Juries Act 1974 apply. For that purpose we were referred to Clayton v HM Coroner for South Yorks and Chief Constable of South Yorks Police & Ors [2005] EWHC 1196 (Admin) for the proposition that a jury in an inquest must not be subjected to improper pressure by being required to bring in a verdict within a specified time of being discharged (see paragraph 16).
31. I am quite willing to accept that if juries are to be deployed in civil trials their integrity must be protected by protecting them from improper pressure to reach a verdict within a specific time.
32. We were also referred to a case that had dealt with a different subject matter, although there was a civil jury in Mrs Morrison v The Chief Constable of West Midlands Police [2003] EWCA Civ 271. It was there contended that the jury had indicated that they had been unable to agree upon their verdict but, rather than discharge them, the judge imposed improper pressure upon them by requiring them to continue to consider their verdict and giving them a direction that failed to comply with what is commonly known as a Watson direction ([1988] 87 Cr App. Rep 1). The allegation was rejected in that particular case, but Lord Phillips MR questioned the extent to which the Overriding Objective might impose upon a party an obligation to agree upon a majority verdict of less than seven to one (see paragraph 26). It was in that specific context that he considered, without reaching any conclusion, the relationship between the civil rules and the ordinary rules which would apply to protecting the integrity of the jury in criminal cases. In my view, this is not the case to identify with precision the principles which apply in order to achieve consistency between the civil rules and the use of juries to which the Juries Act 1974 applies. Suffice it to say that in my view there was no objection to making it clear to the jury that they were expected to reach a verdict on Monday. Of course, the issues were important to both Mr Lorenzo and the West Midlands Police, but they had had all of five days of witnesses being examined and cross-examined and debated about, the weekend and then the following Monday to consider it and they had reached verdicts that showed that they had conscientiously put their mind to the specific factual issues. The mere expectation that they should return their verdict on Monday falls far short of establishing that they were subjected to improper pressure and, in those circumstances, I would dismiss that ground of appeal also.
33. I would dismiss this appeal.

Lord Justice Longmore :

34. I agree.

Lord Justice Kitchin:

35. I agree also.

Order: Appeal dismissed