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
		1 August 2014

Sir David Eady :

1. In July 2012, I ruled that the Claimant ("LUFC") had been charged for special police services ("SPS") over the three preceding football seasons, in respect of home matches, on a basis that was in part unlawful: [2012] EWHC 2113 (QB). It thus became necessary to find a methodology by which to calculate the appropriate rebate. It did not prove possible for the parties to agree a formula. Each, therefore, proposed a distinct methodology and sought to persuade the court of its merits. These proposals yield answers which Mr Beloff QC described as "dramatically" different. It is now for me to consider their respective merits and to try to find a means by which to calculate figures which approximate as closely as possible to the loss actually suffered. In the meantime, the Defendant ("WYP") has paid LUFC £1,238,816.61 which is said to represent the total loss including interest. LUFC, on the other hand, seeks a further £844,016.36 plus interest (to include claims in respect of 2012-13 and 2013-14).
2. Although the background is fully set out in my earlier judgment (and in that of the Master of the Rolls on appeal) I need briefly to summarise it so that the rival methodologies can be understood in context.
3. Following the onset of the recession, WYP decided to try and recover more for the public purse in respect of their regular deployments for matches at Elland Road. They sought to charge not only for policing within the stadium (as had been the position up to the 2008-9 season) but also over a wider geographical area (described as the "extended footprint"). The relevant area extended more widely than any land owned, leased or controlled by LUFC. It was thought by WYP that, since the need to police the fans and visitors in such areas was attributable to LUFC matches, it was only fair that it should foot the bill rather than meeting the cost out of diminishing public funds. It was ultimately held, however, by me and by the Court of Appeal on 7 March 2013, that a proportion of these policing services fell within the WYP's ordinary responsibility for public order policing and that SPS could only properly be charged (under s.25 of the Police Act 1996) in respect of services that were provided on land owned, leased and controlled by LUFC: see also Harris v Sheffield United Football Club Ltd [1988] 2 QB 77.
4. It thus became necessary to find a means of filtering out those parts of the SPS paid for by LUFC which strayed impermissibly into extraneous areas (the "extended footprint") and to ensure that LUFC would only reimburse WYP in respect of services in the area defined as legitimate. It is impossible to achieve this objective with complete accuracy and I have to find a method which will approximate most closely. As I have already noted, WYP traditionally only charged in respect of services rendered within the stadium itself (access to which requires a ticket). In the light of the judgments, however, it became apparent to WYP (if it was not already) that SPS could additionally be charged for in certain areas outside the stadium if they happened to fall within the definition of being "owned, leased or controlled" by LUFC. That was a formula to be found both in my judgment and in that of the Court of Appeal, and the Assistant Chief Constable, Mr Milsom, told me that he focused on this when trying to arrive at the appropriate rebate in 2013. He and his colleagues, therefore, came up with a methodology which was intended to enable them to repay what had been overcharged while, at the same time, not conceding any charges that had been made legitimately.
5. Even after the judgment was handed down, on 24 July 2012, there were disputes as to how the charging for SPS should be made in respect of the seasons 2012-13 and 2013-14. I am invited by the parties to resolve those issues also.
6. The methodology favoured by WYP for calculating the overpayments for the three previous seasons (2009-2012) was intended to identify the element of all relevant match-day policing operations in respect of which a charge was unlawfully made. The cost of this element, if it can be reliably calculated, will represent the appropriate rebate. So far, so good. Their starting point, however, proved to be more controversial. It was to define the overpayments by reference to the judgments and thus to identify the charges made in respect of operations carried out on any land not owned, leased or controlled by LUFC. This approach is challenged by LUFC.
7. I received evidence as to how the calculations were carried out from Mr Milsom, from Mr Mark Reeves and from Ms Helen Royan. They selected the charges made for the middle season (2010-2011), since in the first season LUFC was only charged at half the full rate by way of a concession. This was because, by the time the club became aware of the increased charging policy by way of the "extended footprint", ticket prices had already been set.
8. As I explained in the 2012 judgment, games were categorised in the light of past experience according to the risk of disorder occurring. Police charges would increase correspondingly. The lowest risk category is A. Categories B and C were sub-divided to allow for games labelled by reference to increased risk ("IR"): altogether there were some seven categories. Mr Milsom said that this was intended to pinpoint risk, and therefore policing requirements, with the greatest accuracy. It should thus tend to minimise the possibility of over- or under-charging.
9. At the next stage, however, there arises a considerable degree of uncertainty and speculation. Operational orders were studied for sample games selected in each of the risk categories or, as Mr Beloff prefers to put it, "cherry picked". At all events, once the cost of policing for the sample games had been arrived at on the basis of the operational orders, that element thought to be attributable to extraneous land would be deducted from the actual charge made for the match in order to arrive at the correct rebate. The percentage difference between the two was applied across all games in that risk category. From the LUFC point of view, this methodology is vague and lacking in transparency. It is difficult to check with any degree of confidence and involves taking WYP's assumptions (in particular, as to the similarity between games) on trust. While I readily acquit the personnel at WYP of any lack of good faith (as did Mr Beloff), the methodology does involve a degree of assumption and speculation which LUFC submits is unacceptable.
10. Some games were approached individually rather than on a sample basis. These were either Bank Holiday games or those categorised as giving rise to a more serious risk of disorder (C+IR). Therefore, in order to achieve greater accuracy, operational orders for each match were studied separately and the cost of operations on extraneous land worked out (on the assumption that the orders were complied with to the letter and on the basis of the appraiser's speculation as to how the order would have been carried out, with what number of officers deployed and where).
11. It was on the basis of this methodology that WYP repaid the rebate it thought due and claims now that no more is owed. As a matter of principle, however, it cannot be appropriate for the court to quantify loss on the basis of assumptions made by one of the parties and without having available a method to check the validity of those assumptions.
12. One of the particular problems was the attribution of police resources to an area of land, described as the "Lowfields Triangle", between the stadium itself and the Lowfields Road. It is accepted that this area of land was indeed "leased". It has to an extent been a focal point, since it lies immediately outside the entrance to the stadium (and is the location of the Billy Bremner statue). According to the evidence of Mr Harvey, however, the situation has improved somewhat since October 2011, when he changed the coach parking arrangements so that visitors alighted in a parking area round the corner. Be that as it may, Mr Beloff argues that the WYP calculations involve, notionally, crowding a disproportionate number of officers into this area and charging LUFC for their services. The land is virtually indistinguishable from other public areas immediately outside the stadium. Surging crowds could cross the invisible boundaries at will and without noticing that they had done so. In such a context, it becomes all the more desirable to have evidence as to exactly where police officers would have been deployed, rather than working on assumptions. Unfortunately, although it is understandable, such detail is not available.
13. Mr Beloff submits that far more weight has been placed on the fact that this relatively small "sliver" of land happened to be leased by LUFC than it will bear.
14. Indeed, he goes further and submits that because it is indistinguishable from the public land outside the stadium it should, for present purposes, be treated as tantamount to public land itself. This has significance, he suggests, because the Court of Appeal had actually promulgated this as being the relevant test. I had said in my judgment that there was no dispute that WYP could charge for services rendered on land "owned, leased or controlled" by LUFC, and my order had required "… the return of monies paid … in respect of the provision of policing services outside the areas identified on the plan attached". Mr Beloff suggests that the Court of Appeal required a rather different test to be applied; namely whether the land in question was public or private. In that context, the Triangle itself was characterised by Mr Harvey as private land to which the public had access except in very limited circumstances. Whether the difference in terminology reflects a difference of substance is open to question. Yet, as it happens, my order was not varied by the Court of Appeal; nor did the Master of the Rolls' judgment suggest at any point that it was wrong to define the right to charge for SPS by reference to land "owned, leased or controlled".
15. Although I am unable to produce a precise figure based on accurate and independently verifiable data, I am in a position to adjudicate to an extent between rival methodologies and upon these particular submissions of Mr Beloff which were given, in the course of the hearing, considerable emphasis.
16. The resolution of this issue does not depend on any factual dispute or upon conflicting evidence. It is not questioned that the "Lowfields Triangle" does fall within the definition of being owned, leased or controlled by LUFC. The narrow issue is whether there was anything in the Court of Appeal's judgment to justify departing from that test. The argument of LUFC in this respect appears to be of recent origin and may be refuted by simply observing that, if the Master of the Rolls had indeed intended to adopt a different criterion, he would have expressed that intention with clarity. The fact that he did not do so, and that correspondingly no variation was made in the terms of the order of July 2012, tends to confirm that WYP were always entitled to proceed on the basis that charges could properly be made in respect of the Lowfields Triangle.
17. On the plan used in submissions, the Triangle was hatched in blue. There were other areas adjoining the stadium, to the north and south west, which were hatched in green. These too fell within the criterion of "owned, leased or controlled". They required some officers to be deployed, although not so intensively as on the Triangle itself. By the same token, those services could also be charged for, in so far as they are separately calculable.
18. Because of the invisible boundary, and the inevitable movement back and forth of fans and visitors, there is no definitive method of identifying on any given occasion precisely how many officers were deployed on these areas, or what proportion of their time was spent elsewhere. The only practical way of achieving resolution, therefore, is to attribute to the blue and green areas a fair and reasonable proportion of the overall services rendered outside the stadium – if they can reliably be quantified. Because of the way the argument developed, counsel did not have the opportunity of addressing me on what that proportion should be. I will therefore entertain any submissions on the point (in writing, if the parties prefer). Whatever is the proportion of the cost attributable to those areas could legitimately form part of the charges made to LUFC or, to put it another way, could be deducted from the rebate claimed by LUFC. That would be my method of determining what Mr Beggs QC described, in his closing submissions for WYP, as "the key issue".
19. That still leaves the overarching debate as to which methodology is to be preferred as being likely to offer the nearest approximation to the appropriate charges for the relevant seasons. Both have drawbacks. I prefer an approach which takes established fact as the starting point, making due adjustment for changing circumstances, and minimises the need for assumption or speculation. The attraction of the LUFC method is that it proceeds on the basis of the charges made for the 2008-9 season, when the actual cost of policing within the stadium can be established with some confidence. (One of its drawbacks, however, is that the police deployed in the stadium at that time were selected and remunerated on a different basis from those outside – being usually volunteers who would otherwise be off duty. That needs to be borne in mind when seeking to draw any wider inferences from the 2008-9 figures.)
20. Thereafter, allowance has to be made to take account of rising costs (or, at least theoretically, any reductions). This will obviously include changes in police remuneration and other elements of cost over the period in question. It is necessary also carefully to consider any significant alteration in the distribution of matches in the higher or lower risk categories, as compared to the 2008-9 season. It will thus be clear that I regard the methodology advocated by Mr Beloff as likely to yield a more accurate approximation of the legitimate charges to be made in respect of policing, in later seasons, within the stadium.
21. When this exercise is carried out, it should be possible to identify within a reasonable margin of error the likely cost of policing within the stadium for each of the later seasons. Consequently, one can infer the amounts by which those notional "stadium costs" were exceeded in the invoices rendered. On the LUFC argument, these excess charges would equate to the rebate that should be recovered. In the light, however, of the argument over the blue and green hatched areas (considered above), any rebate should be reduced by whatever is the appropriate percentage reflecting those legitimate charges. That is obviously because, with the benefit of hindsight, WYP were entitled to charge in respect of services rendered in all the areas "owned, leased or controlled". That is not simply hypothetical, because they did charge for those areas (although the figures were not separately broken down from the rest of the "extended footprint").
22. There is, however, an obvious stumbling block. There is the problem of ascertaining, by a means acceptable to LUFC, as well as to the court, the proper method of calculating and apportioning policing costs outside the stadium. For so long as LUFC assesses its loss by reference to all SPS charges made outside the stadium, it is relatively straightforward. One simply calculates what could or should have been charged for policing inside and subtracts the total from the invoices rendered. On the other hand, once it is acknowledged that it is (and has always been) legitimate to charge for SPS also within the blue and green hatched areas, it becomes necessary to find a reliable means of assessing how those charges should have been arrived at. LUFC does not accept that the charges made for policing outside the stadium (whether on the hatched areas or otherwise) were properly calculated (for the reasons discussed above). Yet it has not proposed an alternative. Its methodology may work for arriving at a figure for SPS inside the stadium, but there is no comparable starting point available for calculating the legitimate charges for the hatched areas. That is simply because LUFC has hitherto proceeded on the assumption that no charges could be made at all for SPS outside the stadium. Furthermore, there are no pre-2009 figures available as a starting base.
23. If I am right about using the LUFC methodology as the basis for calculating the stadium element of SPS charges, then the only way of arriving at a figure for external policing is to extrapolate from those stadium costs and then to assess the right proportion attributable to the blue and green areas. It will be necessary, of course, to ensure that the figure represents a fair and reasonable proportion of the overall cost of policing on any given match day, having regard not only to the stadium costs but also to those incurred in relation to the "extended footprint" as a whole. In other words, it is necessary to guard against "loading" too high a proportion of the external costs on to the blue and green areas. (It is necessary to remember also that the remuneration for off duty officers within the stadium in 2008-9 was calculated differently from that of officers deployed outside.)
24. A relatively minor point, which probably accounts for a significant proportion of the increased charges for the three seasons after 2008-9, is the practice adopted of claiming for police time in six-hour units. Mr Beloff argues that four-hour units (plus 1.5 hours travelling time) would have been more reasonable. But this issue was resolved in the original judgment, at [58], where I indicated that the units could only be challenged if indefensible on public law grounds. No such argument has been advanced. Any element of increase attributable to the use of six-hour units is, therefore, acceptable. It follows, when calculating the amounts chargeable in respect of the stadium policing, that the LUFC calculations will need to be increased correspondingly to allow inter alia for that factor.
25. As for the post-judgment seasons, i.e. 2012-13 and 2013-14, the outcome again turns largely upon what Mr Beggs called the "key issue". In those two seasons, also, WYP charged in respect of land "owned, leased or controlled" in reliance upon the judgment (as they were entitled to do). Similarly, they relied on six-hour units (as permitted). During these seasons, no charges were levied relating to the rest of the "extended footprint", as WYP sought to give effect to the judgment. The only issue remaining in contention was that relating to charges on the green and blue hatched areas on the plan. That has now been resolved.
26. Mr Beggs also seeks declarations. The first is as to the six-hour units. In the light of my original judgment, at [58], I believe WYP is so entitled. The second point of principle relates, more generally, to time units in excess of the length of deployment. For the same reason, that can be covered in a declaration. The third is as to the "full cost" principle identified in Home Office Circulars 34/2000 and 09/2011 and as to the methodology contained in the ACPO Guidance, Paying the Bill 2. This was again addressed briefly in the judgment at [58], and I see no reason why it should not be reflected in a declaration for the avoidance of doubt.
27. A point raised by LUFC is the WYP method of invoicing. What is sought is a detailed breakdown of officer deployment. LUFC wishes to have an account of how many officers were deployed on each match day, for how long each was discharging duties inside the stadium and at what rates of remuneration. In an ideal world, and given unlimited time, no doubt this would be desirable, but it seems to me to go beyond what is reasonable and it would impose further unnecessary burdens upon the WYP and its staff. I would accept that it would not be appropriate for the court to seek to "micro-manage" the WYP invoicing process to this extent.
28. I have not been able to produce an exact calculation of the loss, but I hope that I have resolved the key issues of principle and that this will enable a final figure to be reached between the parties. There will be liberty to apply.