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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 December 2008

Mr Justice Eady :

1. On 11 December 2008 I was asked to resolve an outstanding dispute as to the scope of the redactions in the copy of the Moonstone Report supplied by the Defendant to the Claimants' advisers. I touched upon this report in my judgment dealing with the objections made on Mr Sherwood's behalf to permitting the inspection of documents. I need not repeat the introductory background set out in that judgment: [2008] EWHC 3151 (QB).
2. Prior to the hearing I was asked to read the whole of the report and to consider whether any of the redacted portions were, on a proper analysis, to be treated as falling within the Defendant's obligations of disclosure under CPR Part 31. I did this and canvassed my preliminary views with Mr Stagg in the course of the hearing, as a result of which he agreed on behalf of his client to give a little further limited disclosure in respect of the report.
3. So far so good. What was fundamental to this exercise, however, was the test I was to apply to the redacted parts of the report. I had approached it on the basis that to justify further disclosure the relevant passages would have to fall within the well known criteria identified in CPR Part 31. That is to say, I judged the matter according to the outstanding issues on the parties' statements of case. Those issues seem to me to be whether or not Mr Sherwood believed himself to be under attack at the material time (together with the reasonableness of that belief) and the quantification of damages. The Master of the Rolls observed that the only relevant pre-shooting issue relates to the conduct of PC Sherwood and material relevant to his experience and condition and to instructions given to him before the raid: [2007] 1 WLR 398, 441 at [161].
4. Mr Hermer, for the Claimants, suggested that I was applying too restrictive a test. There were two principal pillars to his argument. First, he submitted that anything should be disclosed which threw light on the misconduct attributable to the Defendant (as opposed to Mr Sherwood) in respect of the planning and execution of the armed raid on 15 January 1998. As I pointed out in my other judgment, extensive admissions have been made as to the negligence attributable to the Chief Constable in this respect, as identified in the amended defence. On one view, therefore, negligence is not a live issue in the case. Moreover, although there was at an early stage a claim for misfeasance in public office, this was withdrawn several years ago in so far as it related to events prior to the time of the shooting. (This part of the claim had been struck out by Dobbs J in March 2005 and an appeal in respect of that aspect of her judgment was not pursued.)
5. Despite these considerations, Mr Hermer submits that anything to the Defendant's discredit revealed in the Moonstone Report should be disclosed because it has a potential for aggravation of damages.
6. This argument I reject because one can only have disclosure of documents in respect of acts or omissions which are actually pleaded by way of aggravation of damages. Furthermore, aggravated damages are simply one aspect of compensation. They are quite distinct from punitive damages. Acts or omissions of a defendant, or conduct for which he is vicariously liable, may be pleaded in support of aggravation of damages if it can be shown that it caused additional hurt to the claimant's feelings. It is elementary that conduct outside a claimant's knowledge cannot have had any such impact. It is not permitted to use the process of disclosure of documents for the purpose of "fishing" for a case which has not been pleaded, whether in relation to aggravation or anything else.
7. Secondly, Mr Hermer argues that at trial it will be open to him to submit to the judge that if Mr Sherwood's state of mind, at the material time, was affected by false information imparted to him in preparation for the raid, while he himself might (if sued) be able to rely upon that in support of his honest belief, nevertheless the Chief Constable should not be permitted to do so if the false information was imparted through the incompetence or misfeasance of other officers for whom he was responsible. It is thus important to remember that the Chief Constable only is sued in these proceedings (not Mr Sherwood) and that the Claimants can only succeed on the basis of establishing vicarious liability for Mr Sherwood's acts or omissions. That is borne out by the terms of s.88(1) of the Police Act. In accordance with the principles of vicarious liability, therefore, it seems to me that it would not be relevant in these proceedings, when judging Mr Sherwood's legal responsibility for the shooting (and through him that of the Chief Constable), to take into account the wrongdoing of other police officers for whom the Chief Constable might also have to take responsibility.
8. Mr Hermer wishes to argue that if the Chief Constable would be responsible, vicariously, for the imparting of false information to Mr Sherwood in advance of the raid (for example, in relation to the likelihood of Mr Ashley responding with violence or of his having available a firearm on the premises), he should be precluded from relying upon any state of belief on the part of Mr Ashley which was induced by that false information. In my judgment, that is to confuse the status of the Chief Constable as Defendant in these proceedings. He is sued because he stands in the shoes of Mr Sherwood and, it would follow, can take advantage of any defence which would be open to Mr Sherwood if sued personally.
9. To counter this analysis, Mr Hermer relies upon certain dicta to be found in the judgment of Arden LJ in the Court of Appeal: [2007] 1 WLR 398, 449 at [195]-[196]. What she said was as follows:

" … I would like to lay down a marker as to the possible need hereafter to distinguish between different sorts of mistakes. It is said that PC Sherwood made a mistake as to whether Mr Ashley was pointing a gun at him. Mr Ashley's conduct may be found to have contributed to or created this mistake in PC Sherwood's mind. There may be no doubt that facts of this kind should be taken into account as PC Sherwood reasonably but mistakenly thought them to be: that is in line with the principle that a person is entitled to respond with reasonable force to a threat made against him. But the position may not be so clear in relation to other mistakes, such as any mistake that was not one caused by Mr Ashley but by an earlier inaccurate briefing. This raises a factual paradigm that has not previously been considered by our courts, and indeed may not arise in this case. I would therefore wish to leave open for further consideration the extent to which a mistake as to the facts in these circumstances, which did not form part of the immediate events in which PC Sherwood perceived a real and imminent danger or result from any action on the part of Mr Ashley, should be taken into account."

10. Similarly, Mr Hermer relied upon dicta of Lord Neuberger in the House of Lords: [2008] 2 WLR 975, 1004 at [93]-[94]. Having referred to the observations of Arden LJ, cited above, his Lordship continued:

" … given that the defendant in these proceedings is the chief constable, I question whether it would be open to him to rely on what his police officers told PC Sherwood about Mr Ashley as justifying PC Sherwood's belief, at least to the extent that they were negligently inaccurate in their briefing. There must be a strong case for saying that it should not be open to the chief constable to rely on his own (if vicarious) negligently inaccurate imparted information to PC Sherwood to justify the reasonableness of a shooting by PC Sherwood for which he was vicariously liable."

11. It is my duty when assessing what is relevant for the purposes of CPR Part 31 to judge matters according to the law as it stands and, in particular, the established principles of vicarious liability. The dicta I have quoted do not purport, in either case, to state the law as it stands at the moment; what is more, they are not echoed in any of the other judgments, either in the House of Lords or in the Court of Appeal. They are, if I may respectfully say so, interesting suggestions about how the law could or should be developed, whether by the legislature or by the judiciary. Mr Hermer wishes to argue, seeking some sustenance from those passages, that the Chief Constable would be precluded from relying upon information imparted negligently or otherwise wrongfully. He may or may not succeed before the trial judge, or on appeal, but I do not think it would be right as a matter of principle for me to grant disclosure on the hypothetical basis that he is ultimately successful. Should he fail, he would have obtained the wider disclosure impermissibly.
12. One way of dealing with this matter (although I make no recommendation to that effect) would be for the point of law to be determined as a preliminary issue. As a point of law, it can be stated very clearly, as it has been in the course of the dicta set out above. It does not need the determination of facts to decide whether the law of vicarious liability should be subject to this particular exception.
13. Even if it were not possible to decide this matter without a factual matrix, there are the very full admissions contained in the amended defence, which would include the conduct of the briefing. I am quite satisfied that it is not necessary or proportionate to give disclosure of the more wide ranging matters to be found in the Moonstone Report for the purpose of enabling Mr Hermer to develop his argument for extending, reforming or changing the law.
14. For these reasons I have decided to reject Mr Hermer's submissions on the criteria to be applied and to make it clear that my preliminary views on the scope of disclosure, and my ultimate decision in the light of Mr Stagg's submissions, were both based on the narrower criteria which I identified earlier (at paragraph [3]) in this judgment.