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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fleming v Sussex Police Force  EWCA Civ 643 (04 May 2004)
Cite as:  Po LR 251,  1 Costs LR 1,  EWCA Civ 643
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
LORD JUSTICE JACOB
|THE CHIEF CONSTABLE OF THE SUSSEX POLICE FORCE||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR L THOMAS (instructed by Christian Khan, London WC1A 1LY) appeared on behalf of the Defendant
Crown Copyright ©
Tuesday 4 May 2004
"The Defendant is currently unable to admit or deny the allegation that the Claimant was told by a police officer that the sample would be destroyed until that officer has been better identified by the Claimant."
It went on to state that whatever the claimant was told by one of the defendant's officers, it is denied that there was any misfeasance in public office or that the facts alleged amounted to facts on which it could be concluded that there was.
"The Claimant failed on his allegation of False Imprisonment. The jury presumably must have thought that the officers were justified in thinking that Mr Fleming looked and was acting in a suspicious manner and were justified in approaching and stopping him initially. Even if their purported reason for arresting him and taking him to Gatwick Airport Police Station was not so justified. The jury found that the officers had twice used unreasonable force in doing so. Two assaults. Then, Malicious prosecution for an alleged assault against one of the officers that he had not committed, also in the process of the arrest at the airport. The police were therefore initially justified, used excessive force in dealing with Mr Fleming but then, very regrettably, went on to prosecute him for what he had not done, knowing that to be the case."
"17. Applying the Overriding Objective to it all - as I must - it struck me forcibly that certainly one, probably both of these officers were too easily prompt falsely to accuse and, in consequence, falsely to arrest, someone that they thought might be at the Airport for no good reason and who was behaving awkwardly. But perjury is not a legitimate tool of their trade.
18. The jury thought their conduct deserved Aggravated Damages. That is significant. Probably the Court, and certainly they, would think justice ill-served if [the claimant] did not receive that money, if they had known what I do of the Police conduct of the case as a whole, so admirably laid out for me now by both Counsel. He can only receive the damages the jury thought he deserved if the Police pay his full costs. They always knew that. They refused to compromise. My problem is essentially that, had the Police appreciated all the matters I have outlined - not excluding the last - they would have realised that, should Aggravated Damages be awarded, particularly for what was the effect of a perjured arrest, the Court would be more anxious to see that the Claimant received at least a substantial part of his compensation, rather than balancing somewhat tactical issues, whether as to costs or otherwise, and whether under Part 44.3 or not.
19. I should hope that the Claimant's lawyers are not going to put in a bill to the LSC for the misfeasance issue, either.
20. I should like to know the outcome on that, eventually.
21. In other proceedings (in particular in Family Cases) the Court of Appeal has emphasised that decisions regarding financial matters must take account of the overall outcome of any order, including the incidence of costs upon either party. These principles are now but examples of a system of awarding (or refusing) costs which, under the CPR, apply across the board to all forms of litigation. In the circumstances, I have not the slightest doubt that the Defendants should pay the claimant's costs in full, subject to detailed assessment. I so order."
(Appeal dismissed; the appellants do pay the respondent's costs of the appeal, excluding the costs of and in relation to the letters of 15 September, 17 September and 26 November, such costs to be payable on the standard basis and subject to detailed assessment).