England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(JUDGE IN CHAMBERS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th May 1999

Mr Justice Garland: This is an appeal from the decision of Master Leslie given on 9th March 1999 when he struck out the Statement of Claim as an abuse under Order 18 Rule 19(1)(d), dismissed the action and gave judgement for the Defendant with the costs of the action and the summons to be taxed if not agreed. The action was commenced on 6th May 1998 after the failure of earlier litigation by the Plaintiff who seeks to recover damages for alleged negligence from the Defendant, a barrister, who in 1992, represented the Plaintiff at an Industrial Tribunal, the matter having been referred to her by the Free Representation Unit ("FRU"). It is convenient to set out a brief history of events before turning to the issues in the appeal.

The Plaintiff, Eileen Annette Waters, joined the Metropolitan Police as a probationer in May 1987. In February 1988 she was stationed at Harrow Road and was living in residential quarters known as the Robert Mark Section House adjoining Marylebone Police Station. She was then aged 20. She alleges that in the early hours of 15th February 1988 she was visited by a Police Constable who was also stationed at Harrow Road. They went out for a walk together and when they returned to her room he committed a very serious sexual assault on her. She did not make a formal complaint immediately. She alleges that her superiors failed to take proper action on her complaint, that it was met with aggression if not outright hostility, and that from then on she was subjected to harassment, unfair treatment and victimisation by other police officers of all ranks up to the Deputy Assistant Commissioner and that the final straw was her removal from the list of police officers who are specially trained to search for explosives known as POLSA. This prompted her to apply to an industrial tribunal completing Form IT1 in the following terms:-

"On 1.7.91 Chief Superintendent Spice of Marylebone Police Station W1 unfairly removed me from the active POLSA search team list. This victimisation is part of ongoing harassment which started in 1988 when I made formal allegations of assault against an officer of the Metropolitan Police Force which was deemed against the public interest to take further action."

She sought advice through the Police Federation. On 30th October 1991 a Police Federation representative drafted a letter for her signature setting out her principal complaints and seeking advice from Russell, Jones and Walker, the solicitors retained by the Federation. On 10th December the Plaintiff was seen by a solicitor who obtained further details of her complaint. He obtained a copy of the Commissioner's Notice of Appearance to her application and on 7th January wrote to the Police Federation a detailed and closely argued 10-page letter of advice concluding that:-

"Any sex discrimination claim is likely to be extremely difficult. It is by no means clear that Miss Waters' real grievances relate to sex discrimination. There is on her account a pattern of victimisation over several years following her allegation but we doubt whether this can be brought within the ambit of the Sex Discrimination Act. Even if it could, proof will be extremely difficult and, if the entire history of the past four years has to be rehearsed before a tribunal, the case would last weeks, if not months. Overall, the prospects of proving discrimination on the grounds of sex are not, in our opinion, high."

In relation to her allegations of failure to investigate the assault and of adverse annual reports the writer had emphasised the necessity of being able to demonstrate that a man making a serious allegation against a fellow police officer would have been treated differently, the need to demonstrate that the Plaintiff was being treated to her detriment on grounds of sex and that it would be necessary to prove that the adverse reports were a result of making the allegations rather than assessing officer's real opinion. The writer's conclusion was that a Sex Discrimination Act claim was not the best way forward. A directions hearing by the Industrial Tribunal was listed for 23rd April 1992. On 15th April, the Plaintiff went to the Free Representation Unit which on the 20th contacted the Defendant on her behalf. The "essential facts of the case" on the FRU referral form are:-

"On 1.7.91 Chief Superintendent Spice of Marylebone Police Station W1 unfairly removed me from active POLSA search team list. This decision has restricted my duties and has been part of an ongoing harassment which began in February 1988 when I subsequently reported a police officer for a criminal offence which no further action was taken as the case was against the public's interest."

The Plaintiff had by this time produced two records of her complaints: one she gave to the Defendant who saw her in conference on 22nd April. It runs to 17 pages of manuscript and appears at pages 56-72 of the bundle. The other was longer, running to nearly 40 pages and was given by the Plaintiff to Mr Robin Lewis of Bindman & Partners who she consulted on the same day. The Defendant was unaware that the Plaintiff had seen solicitors other than Russell, Jones and Walker and indeed this fact only emerged during the first day of the hearing of the appeal. The Defendant, having seen the Plaintiff in conference on the 22nd, attended the hearing for directions on the 23rd.

Paragraph 2 of the interlocutory order is in the following terms:-

"The applicant brings her claim under Section 4(1)(d) of the Sex Discrimination Act 1975 only. She alleges that she made complaint about an act of discrimination which occurred against her on 15th February 1988 and that thereafter she was treated more unfavourably within the meaning of Section 4 of the Act. She asserts that on 1st July 1991 Chief Superintendent Spice transferred her to other duties which constituted the unfavourable treatment. This was within the three months time limit running back from the issue of her original application."

Then at Paragraph 4 there is the following:-

"The case as pleaded by the applicant bears no relationship to the case put forward today. Ms Maguire has undertaken to file an amended originating application, with full particulars of all matters on which she relies within 14 days and I give her leave so to do."

The Commissioner was given leave to file an amended notice of appearance and the case was listed for hearing from 11th August 1992 until 20th August. On 7th May the Defendant filed "Particulars of Originating Application", the material parts of which are as follows:-

"4. On 15th February 1988, the applicant was seriously sexually assaulted by a male police officer of Harrow Road police station. The assault was reported verbally to WPC Enright on 15th February 1988; the PS Griffith on 18th March 1988 and to CS Kouger on 3rd April 1988. The applicant also informed a Welfare Officer of the assault.

5. On 7th May 1988 the applicant completed a crime sheet regarding the assault and further reported the assault verbally to CS Isles, of Gerald Road, on the same date.

6. The applicant was interviewed about the assault by Criminal Investigation Branch 2 (CIB 2) and her injuries were photographed. No criminal proceedings or disciplinary proceedings have been instituted against the alleged perpetrator of the assault.

7. By reason of the matters aforesaid, the applicant has alleged that the Respondent and/or its servants or agents committed an act/acts which amounted to a contravention of Section 6(2)(b) of the Sex Discrimination Act 1975.

8. On 14th May 1990, the applicant was transferred to Marylebone police station.

9. Between 12th November 1990 and 16th November 1990, the applicant completed and passed the POLSA training course. The applicant also completed and passed the POLSA update training course.

10. On 20th February 1991, the applicant was presented with a detrimental appraisal containing allegations that the applicant had problems regarding which the applicant had no knowledge. The applicant has at no time accepted the contents of that appraisal.

11. On 1st July 1991, the applicant was informed by CS Spice that she had been removed from the POLSA list on "medical grounds". The applicant at that time had no medical problems which would have necessitated her removal from the POLSA team, nor was any recommendation made by the relevant medical department that the applicant was unfit in any way for service in any particular field or team.

12. In the absence of any real medical grounds for the applicant's removal from the POLSA team, the applicant maintains that the said removal was due to her earlier allegation of sexual assault.

13. By reason of the matters aforesaid, the applicant has suffered victimisation contrary to Section 4(1)(d) of the Sex Discrimination Act 1975."

The Defendant saw the Plaintiff in conference again at the end of July. The Commissioner made an offer of settlement on condition that the Plaintiff left the Police. The Plaintiff was determined to remain in the Police Force: the Commissioner was not prepared to contemplate this and no settlement was effected. At the hearing on 11th August 1992 the Defendant agreed a Statement of Facts in order to enable the tribunal to decide a preliminary point of law, namely, whether the complaint of sexual assault was capable of amounting to an allegation within the terms of Section 4(1)(d). I have taken the Agreed Facts from the judgement of Lord Justice Waite in the Court of Appeal. They were subject to slight amendment to take account of matters relating to the applicant's occupancy of the Section House and the place of residence of the police officer alleged to have assaulted her.

"(a) The applicant joined the force on 11 May 1987. She was posted to Harrow Road Police Station in October 1987.

(b) Whilst posted to that station, the applicant lived at Robert Mark Section House, where she had a room. She was required to live there as part of the terms of her probationary engagement.

(c) On Sunday, 14 February 1988 the applicant had come off duty at 2.00 pm and had gone to her room. In the early hours of 15 February 1988, at about 2.30 am, a male police constable (T), who was also posted at Harrow Road, but who was neither required to reside nor did reside at the Robert Mark Section House, came to the applicant in her room. The applicant and T decided to go for a walk together in Hyde Park, and then returned to the section house.

(d) The assault(s) of which the applicant complained is/are alleged to have taken place in the applicant's room after the applicant and T returned from their walk in Hyde Park to the applicant's room.

(e) Neither the applicant nor T had been on duty at the time of the alleged assault(s). T had been off sick and the applicant had had a rest day.

(f) There is nothing in the applicant's or T's contract of employment which gives any extended meaning to the expression `on duty'."

The Industrial Tribunal decided in favour of the Commissioner and dismissed the Plaintiff's application. I will turn to the detail of the law but the basis of the decision was that since neither the Plaintiff nor her alleged attacker were on duty at the time the assault could not be regarded as something done in the course of her attacker's employment. She appealed to the Employment Appeal Tribunal which dismissed the appeal. She was represented by Mr Robin Allen. On 4th February 1994 she commenced a civil action against the Commissioner for damages and an injunction "to restrain the Defendant [Commissioner] by officers and/or agents of the Metropolitan Police Force or otherwise from taking any steps that interfere with the proper course of the Plaintiff's duties as an officer of the Crown and/or harassing or intimidating her in any way whatsoever". The Statement of Claim, settled by Mr Robin Allan, runs to 91 paragraphs and contains a number of allegations of harassment which had not previously formed part of any of the accounts given by the Plaintiff. That action was struck out by Wright, J. but the Plaintiff appealed. That appeal and her appeal from the EAT were heard together and dismissed on 3rd July 1997. The report is at 1997 IRLR page 589.

The Defendant had been called to the Bar in November 1990 and had only been in practice for a very short time. The FRU depends on the voluntary services of law graduates, bar students, pupils not yet entitled to appear in Court and pupils and young barristers having a right of audience. Their activities are limited to tribunals and the client has direct access to them so that to some extent they are required to undertake work normally done by a solicitor. The alleged duties of the Defendant are pleaded in detail by paragraphs 4 to 7 inclusive of the Statement of Claim. These include the assertion that the Defendant was under a duty "to refuse to accept or to return the Plaintiff's instructions in a matter which she lacked sufficient experience or competence to handle, or had insufficient time to do the preparatory work required". Paragraph 7 asserts that:-

"Insofar as the Defendant agreed to act and did act for the Plaintiff as both solicitor and barrister the Defendant was under an additional duty to act with the ordinary care and skill of a solicitor."

There was argument as to the nature of the duty owed by a FRU volunteer: whether there was a general duty applicable to all or whether the duty was subjective to the particular person who might, like the Defendant, be a barrister entitled to rights of audience in contrast to a law graduate with no professional qualifications. I propose to resolve this particular issue by assuming, for the purposes of a striking out, that the Defendant owed the duty of a junior barrister of ordinary competence qualified by the fact that she had no Instructing Solicitor and limited facilities for making enquiries. She would be entitled to such "forensic immunity" as the law allowed her. I stress that I have made an assumption for the purposes of this case only. The definition of any duty of care owed by a volunteer undertaking work referred by the FRU is a task to be approached with caution, and it is to be regretted, having regard to the public service provided by the FRU, that any issue of possible liability has to be considered at all.

Before turning to the alleged breaches of duty and issues of immunity, it is necessary to set out the relevant statutory provisions applicable to the Plaintiff's claim before the Industrial Tribunal and allegations of negligence in the present action. The Sex Discrimination Act 1975 provides as follows:-

"1(1). A person discriminates against a woman in any circumstances relevant to the purposes of any provision of this Act if –

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man ..."

Section 6 is entitled "Discrimination against Applicants and Employees" and continues:

"(2) It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - (...

(b) by dismissing her, or subjecting her to any other detriment;"

Section 4 deals with victimisation in the following terms:-

"(1) A person (`the discriminator') discriminates against another person (`the person victimised') in any circumstances relevant for the purposes of any provision of this act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (...

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 (...

(2) Sub-section (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

Section 17 provides that for the purposes of Part II of the Act the holding of the office of constable shall be treated as employment. Section 41 creates a vicarious liability. By sub-section (1):-

"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

Sub-section (3) provides a defence which is not relevant to the present proceedings. In August 1992 the test for determining whether an act had been committed in the course of an employee's employment was to be found in IRVING v. THE POST OFFICE [1987] IRLR 289. The Industrial Tribunal summarised the effect of the decision as follows:-

"The employer is liable:-

(a) for acts authorised by him;

(b) for acts which he has not authorised, provided that they are so connected with acts which he has authorised that they may be regarded as modes – although improper modes – of doing them.

"In other words, where the act is unauthorised a distinction has to be drawn between an act which is outside the sphere of the employment, and an act which is merely an unauthorised or prohibited mode of doing an authorised act."

At the hearing on 11th August 1992 Counsel for the Commissioner invited the Industrial Tribunal to decide as a preliminary issue whether the Defendant's alleged attacker could be said to have been acting in the course of his employment for the purposes of Section 4(1) because if he was not, the allegation would not fall within Section 4(1)(d) "that the discriminator has committed an act which would amount to a contravention of this Act". The Defendant then agreed the facts which have already been set out. The Industrial Tribunal determined the issue in favour of the Commissioner as did the Employment Appeal Tribunal and the Court of Appeal. The Defendant's argument is summarised in paragraph 9 of the Industrial Tribunal's reasons:-

"It was not for the Tribunal to decide on the truth or otherwise of the alleged assault in 1988 (... It was sufficient for the applicant to allege a sexually discriminatory act of some sort and that it did not matter whether or not the respondent would in the event be vicariously liable."

The Tribunal held that a claim for victimisation depended on proof of an allegation of a breach of the Act. Before the Employment Appeal Tribunal and the Court of Appeal Mr Robin Allen QC (as he had become) argued that the Industrial Tribunal's approach was unduly restrictive and deprived complainants of protection from victimisation in circumstances in which they might not be sure that they had made their complaint correctly. He relied on sub-section (2):-

"Sub-section (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

It was suggested that an allegation would be covered by the Act and not attract a defence under sub-section (2) where:-

(a) it was false and made in good faith, or

(b) true and made in bad faith.

In an advice dated 24th May 1996 (after the appeal to the EAT and before the hearing in the Court of Appeal) he stated:-

"If this analysis is correct it would appear to give the protection which public policy would suggest should be given and would allow Ms Waters to bring her claim. In my view this is a powerful argument."

The Court of Appeal, of course, did not agree and I feel bound to comment that the plain words of sub-section (1)(d) require an allegation that the discriminator or any other person has in fact committed an act which would amount to a contravention of the Act.

The allegations of breach of duty are spelt out in fine detail. I set aside at once the allegations in Paragraph 23: the Plaintiff wished to remain in the Police but the Commissioner was only prepared to compromise the claim on the basis that she did not. The gravamen of the other allegations can be summarised as follows:-

(1) By wrongly agreeing the limited Statement of Facts, the Defendant presented a case which was bound to fail.

(2) The various acts of victimisation should have been pleaded as direct discrimination.

(3) Had the Defendant taken a proper proof from the Plaintiff or pursued obvious lines of enquiry from the information contained in her lengthy notes, she would have discovered further gender-specific acts which could have been pleaded as direct discrimination.

1. I heard extensive argument on the issue of immunity. It was accepted that the Defendant could claim "forensic immunity" in respect of (1) above provided the Industrial Tribunal is, contrary to the assertion in paragraph 9 of the Statement of Claim, a Court of law. I have no hesitation in holding that it is. It certainly falls within RSC 052, see PEACH GREY & CO v. SOMMERS [1995] ILR 549. It is not necessary to make any finding in respect of matters protected by immunity, but I was referred to SMITH v. GARDNER MERCHANT LTD [1999] ILR 134, the relevant part of the headnote of which states:-

"Industrial tribunals are to be discouraged from trying to identify preliminary points of law in cases in which the facts are in dispute and when it is far from clear what facts will ultimately be found by the Tribunal and what facts should be assumed to be necessary to form the basis of the proposed point of law."

2. It was submitted on behalf of the Defendant that immunity would extend back as far as 7th May when she filed the Particulars of the Originating Application because these were, in effect, her "case plan", the forensic decision on how the claim should be presented. I was referred to the leading authorities RONDEL v. WORSLEY [1969] AC 191, SAIF ALI v. SIDNEY MITCHELL & CO [1978] 3 AER 1033, REES v. SINCLAIR [1974] 1 NZLR 180 and to the recent decision of the Court of Appeal in ARTHUR J.S. HALL & CO v. SIMONS in which a large number of authorities were reviewed, including ATWELL v. MICHAEL PERRY & CO [1998] 4 AER 65. The Vice-Chancellor held that the immunity of an advocate in respect of out of Court work which was intimately connected with the conduct of the case in Court extended to inadequacies in his pre-trial deliberations as to how the case should be conducted. There was no reasonable distinction to be drawn between how an advocate proposed to conduct the case and how he did conduct the case in Court. Accordingly, since it was right for public policy reasons to hold an advocate immune for the manner in which he conducted the case in Court, it was right, in the instant case, to hold Counsel immune against allegations that he negligently formed his case plan. A brief had been delivered late after a change of solicitors and Counsel had had only a very limited time in which to consider the issues and to decide how best to present the case before the commencement of the hearing. In my judgement, it is not possible to "carry back" immunity from August to May. There is no public policy justification for so doing. The Defendant had ample time in which to reflect and reconsider. The issue is whether she was negligent in failing to leave open an alternative claim of direct discrimination either on the material provided to her, or on additional material which it is alleged she should have elicited from the Plaintiff, in particular the three gender-specific matters which appeared in the 91-paragraph Statement of Claim:-

(i) Placing pornographic material in her locker;

(ii) Sexist cartoons;

(iii) Placing a truncheon with what appeared to be blood on it on top of her locker.

It is to be noted that neither the Police Federation representative nor Russell, Jones & Walker elicited these items. Russell, Jones & Walker repeatedly emphasised the difficulty of establishing that a man making a serious allegation against a fellow officer would have been treated differently and their conclusion that a sex discrimination claim was likely to be extremely difficult has already been referred to. I was referred to PORCELLI v. STRATHCLYDE REGIONAL COUNCIL [1986] ILR 564 which emphasises that it is the actual conduct to which the Industrial Tribunal must have regard, not the motive for it. The headnote continues:-

"It was irrelevant that the treatment had no sexual related motive or objective but it was material whether the applicant had been treated by the male technicians less favourably than they would have treated a man they similarly disliked; that, since part of the treatment meted out to the applicant was a form of unpleasant treatment that was only meted out because she was a woman, the applicant had been treated less favourably than a man for the purposes of Sections 1(1)(a) and 6(2)(b) of the Act."

It is clear that Russell, Jones & Walker had this principle well in mind and insofar as I was informed of it, this also appeared to be the view of Bindman & Partners. Apart from the gender-specific matters nothing asserted by the Plaintiff comes within the PORCELLI principle and it is difficult to see how, as a matter of evidence, the Plaintiff could have established that a man who had made a serious allegation against a fellow officer would have been differently treated. Was the Defendant negligent in failing to leave open an argument of direct discrimination on the original material? I find myself in agreement with the Master. The Defendant was entitled to exercise judgement whether or not to pursue a claim of direct discrimination. Her Second Affidavit sets out her reasons for not doing so. It is to be borne in mind that the Plaintiff had consistently presented her complaint as one of harassment following an allegation of serious assault which had not been properly investigated. The victimisation argument was a difficult one but was argued all the way to the Court of Appeal by Queen's Counsel. The direct discrimination approach involved formidable evidentiary difficulties. In my judgement, the Defendant is not to be branded as negligent because she preferred one to the other.

Should the Defendant have elicited in one way or another the gender-specific matters to which reference has been made? In my judgement this would be to impose too high a duty on the Defendant. She had a very full manuscript note provided by the Plaintiff who for reasons best known to herself had provided Bindman & Partners with a different and even fuller version. She had not seen fit to mention these matters to the Police Federation representative or to Russell, Jones & Walker let along volunteer them to the Defendant who was, of course, concerned with harassment following an allegation.

A number of other points were made by both parties with which it is, in my judgement, unnecessary to deal having regard to the views which I have formed. The allegations of negligence are unsustainable. I indicated that I would proceed under the Civil Procedure Rules rather than the Rules of the Supreme Court. I take the view that not only was the Master correct in his determination which would now fall under CPR 3.4(2)(d) but the matter could also be disposed of under CPR 24.2(a)(i) having regard to the Practice Direction at 4.2(2). The appeal will therefore be dismissed.

E N D O F T E X T