Keywords: declaratory relief – costs – QOCS – Qualified One Way Costs Shifting – evidence – trial – counterclaim - strike out - CPR 44.15(1)(b) – abuse of process – vindication of party - historic child sex abuse
- This is a reserved judgment following a trial on 5th and 6th October 2017 of the Defendant's counterclaim. The counterclaim seeks various factual declarations from the court. The main claim is an action for damages for alleged sexual abuse but that has been struck out. The Claimant has, since at least mid-October 2016, not played any active part in the proceedings and did not attend the trial.
The background to the case, factually and procedurally
- In November 2014 the Claimant, Mr Daniel Day, issued a Claim Form claiming damages against Dorset County Council (the First Defendant) and Mr David Bryant (the Second Defendant) for assault, battery and false imprisonment. The Claimant's allegation was that in 1977, when he was fourteen years old, David Bryant and a Mr Dennis Goodman both anally raped him, having induced him to going to the Fire Station at Christchurch where they both were retained firemen. Mr Goodman had subsequently died in 2003 and was known to have committed sexual assaults. At the time of issuing the claim, the Claimant was able to rely upon the criminal conviction of Mr Bryant for the sexual assault the Claimant had alleged took place at the Fire Station. However, that criminal conviction was subsequently to be quashed.
- The civil claim pleaded against the Dorset County Council was in vicarious liability, the argument being that both the roles and status of Bryant and Goodman as retained firefighters, combined with their use of the fire station, was sufficient. That claim was struck out by me in February 2017 following a successful summary judgment application by Dorset County Council that the claim disclosed no reasonable cause of action.
- In contrast, the Second Defendant has not pursued a summary judgment application despite the quashing of his conviction because he has always fundamentally denied the allegations in principle. He has always wanted the matter to proceed to this civil trial in order to vindicate his name. By way of counterclaim, pleaded as an amendment because it seemed by that date dubious the Claimant intended to pursue his allegations in the main claim through to trial, the Second Defendant seeks factual declarations that fundamentally deny the Claimant's case.
- The circumstances of how the civil claim has progressed to-date, and the Second Defendant's pursuit of a counterclaim through to trial in the post-issue absence of either participation or appearance by the Claimant, start with the history of the Second Defendant's prosecution in the criminal courts.
- The Claimant's allegation of sexual assault arose in October 2012 when he delivered a handwritten note through the Second Defendant's home letter box one day. Very shortly afterwards, the Claimant complained to Dorset Police that the Second Defendant and Mr Goodman had sexually assaulted him some years previously. The Police duly interviewed Mr Bryant who denied the allegation : as he always has continued to do so since.
- Mr Bryant was charged and convicted in the Crown Court for a single offence of buggery in December 2013. He was sentenced to prison for six years. It is relevant to note in the context of this civil claim for damages that under challenge in cross-examination at the criminal trial, Mr Day (as complainant) denied he was advancing the allegation in order to make money. His reply was, as quoted by the judge in summing up, that : "I'm not hard up, and this is not something I'm doing for money, it's because I need closure."
- Despite this assertion, the Claimant was to present a claim to the Criminal Injuries Compensation Authority nine months later, which resulted in him being awarded £11,000. Mr Butler, counsel for Mr Bryant, informs me that even if declarations of the type sought are awarded by this court, there seem to be no provisions to oblige Mr Day to return this money to the State.
- In April 2014, Mr Bryant's sentence was increased to 8½ years on an Attorney-General's reference to the Court of Appeal. However, the reliability of that conviction became under scrutiny when, as part of his Statement of Case in the now issued civil claim, the Claimant disclosed and relied upon a medico-legal report from a psychiatrist, Dr Nikki de Taranto, dated 12 October 2014.
- That report featured :
a. Reference to the Claimant's extensive recorded medical history of his self-reporting as a liar who deceived people. This crucial evidence had not been placed before the jury during the criminal trial;
b. An assertion that the alleged sexual assault had deprived the Claimant of a successful boxing career, in which he had been selected to represent GB at the 1984 Los Angeles Olympics. That alleged loss of career opportunity formed part of his damages claim. It became apparent upon private investigation on behalf of Mr Bryant that there was no evidence the Claimant ever had had such a career. Despite this sport being well-regulated and extensively archived, there was no evidence that the Claimant had ever boxed at any openly competitive level and he certainly had not been selected for the GB Olympics Team.
- Further evidence challenging the Claimant's credibility came to light. At trial, the Claimant had suggested the only person he had confided to about the alleged assault contemporaneously was a slightly older young man in his neighbourhood, a Mr Chris White. The Claimant's emphasis both at trial and in the medical report was that the shame of the incident had prevented him from telling his parents and it was only many years later that, upon a trip to Bournemouth, was he moved to confide in his partner about what had happened when he lived in that region as a youth. Mr White denied there had ever been such a conversation, however, when approached by the Defendant.
- Mr Bryant appealed to the Court of Appeal Criminal Division, who admitted the fresh evidence produced by the Defendant. The Crown factually conceded that the Claimant was recorded in medical records as a chronic liar and that he had invented his boxing career. Further, both the Claimant and Mr Mick Gregory, a witness who had been willing to support the Claimant's boxing career allegation as part of the prosecution investigation, now made substantial factual concessions :
a. Mick Gregory now distanced himself from the very clear assertions in a statement he had originally given to the Police in which he had very clearly attested to the Claimant's boxing history and was willing only to offer the most generalised of acknowledgment that the Claimant had any boxing associations;
b. The Claimant resiled from Mick Gregory's former claims on his behalf about that career and instead offered a cautious admission of having only been involved in unlicensed boxing in private clubs and venues i.e. not at Olympic squad level.
- The conviction was quashed and the Crown did not seek a retrial. Mr Bryant was released from prison having served 2 ½ years of the sentence. His name was removed from the Register of Sex Offenders. The Defendant's previous good character was restored although, it hardly goes without saying, Mr Bryant had sustained the profound ignominy of the original charge through to conviction and had served time in prison.
- During the period of the appeal, the civil claim had been stayed. Following Mr Bryant's vindication in the criminal courts, the stay was lifted. In October 2016, the Claimant's application for summary judgment (issued at a time when the conviction was unchallenged) was dismissed. The Claimant was given an opportunity to restructure his claim by removing reliance upon the conviction and the now discredited boxing career. He was given permission to amend his pleadings and resubmit his expert medical evidence by 24 November 2016. The Claimant was represented at the October hearing by his solicitor, although shortly afterwards the Claimant dispensed with his solicitors' firm and filed notice of acting in person.
- That was the last appearance by the Claimant in this litigation. He did not attend the strike-out hearing on 7 February 2017, when it was noted that the Claimant still had not sought to amend his pleadings or filed revised medical evidence. The October 2016 permission was therefore formally revoked. In addition to a standard order for disclosure being made, an order for specific disclosure was made against the Claimant to oblige him to disclose the same documents he had obtained by way of an Order dated 20 April 2015 against Dorset Police in order to prepare his own claim. Further directions provided for Mr Bryant (as the now remaining defendant) to file an Amended Defence and Counterclaim and for the Claimant to file a Reply, the exchange of witness evidence and – to the extent evidential recognition was needed for the medical report annexed to the Particulars of Claim but as still remained unrevised - the Claimant was given permission to rely upon that report.
- The Claimant did not comply with any of these directions. The trial of the claim was listed for a mention before Mrs Justice Whipple on 19 June 2017. Mr Bryant attended with counsel and witnesses but the Claimant did not. The Claimant's non-compliance in the litigation was drawn to the attention of the court. In acknowledgment, however, that the court appeared not to have sent the Claimant a notice of the trial date, Mrs Justice Whipple adjourned but made an order that the Claimant must by 3 July 2017 notify both the court and the Defendant in writing of his intention to pursue his claim, in default of which his claim should stand struck out "for want of prosecution".
- The Claimant provided no such indication and so the main claim stands as struck out.
The consequence of the strike-out of the claim against Mr Bryant
- The now less commonly used phrase "for want of prosecution" might perhaps more conveniently be described as a specie of abuse of process recognisable under CPR 3.4(2)(b) as amenable to justifying the striking out of a statement of case. The distinction is not semantic but important in the event the Claimant might come to argue that his case is protected by the provisions of Qualified One Way Costs Shifting ["QOCS"] under CPR 44.13. By way of an exception to QOCS under CPR 44.15(1)(b), costs orders may be enforced against a claimant without permission of the court "where the proceedings have been struck out on the grounds that…the proceedings are an abuse of the court's process".
- I am entirely satisfied that the Claimant's conduct since November 2016 has been entirely abusive to the court's process and that the strike-out automatically imposed in consequence of default directly reflects that abuse. For the purposes of CPR 44.15(1)(b), therefore, the Claimant's case has been struck out for abuse of process. I do not think there is any relevant distinction to be made here between the striking out of "a claim" and the striking out of entire "proceedings". Because it is only personal injury claims that attract the QOCS provisions, counterclaims are rare. Therefore, if the claim is struck out owing to abuse, it in turn sees the striking out of the entire proceedings. In the more unusual case of a claim that additionally includes a counterclaim, it is appropriate to interpret the QOCS exception as applying to the striking out of "the claim" of the party that benefitted from QOCS.
A counterclaim seeking declarations only
- I have set out the factual and procedural background in some detail because only by it can the justification and merits of the declarations sought be properly considered.
- From the Defendant's viewpoint, he not only maintains but wishes to establish before the court he was wrongly charged, prosecuted, convicted, imprisoned, besmirched within his community and has suffered considerable physical, financial and emotional hardship both in and out of prison. I am told the Defendant attributes to this unfortunate history the sudden and unexpected death of his wife, aged 54, in February 2017. Anyone can follow Mr Bryant's aims in principle but the difficulty in this civil process is that, in contrast to the criminal prosecution, this court has been deprived of the opportunity of testing the Defendant's claim by hearing from the Claimant. Instead, there is not even a witness statement from the Claimant and, as stated, he has failed since November 2016 to comply with other directions or to appear at court hearings through to trial. The evidential predicament thus created has been effected by the Claimant personally.
- I accept that it is not unknown for a civil court to have to decide questions of fact in the absence of a party. A fatal accident claim is a classic example. This case is not so analogous, however, because it focuses on allegations that are so reliant upon witness impression as conveyed through oral testimony.
- The evidential predicament has some qualification, though. The factual decisions I am asked to reach do not repeat of the criminal trial process for a variety of reasons. Though it will be obvious to the lawyers, one of the most significant reasons is the distinction between the standard of proof between civil and criminal proceedings. The standard of proof in the civil jurisdiction is on the balance of probabilities. So any findings I express are on that basis.
- For the reasons I discuss below, the Claimant's absence should not justify the court to shy from embarking upon the process requested by the Defendant. This step could be justified be even if, by his own election, the Claimant's allegations have to be considered only in the context of his pleaded claim and such documentation as has been disclosed by the Defendant.
- This evidential limitation raises an important and more than academic observation as to what can be achieved in principle in a counterclaim for declarations as sought. If the court is minded to express a factual declaration, then findings will have been reached on the balance of probabilities. This limitation stands in contrast to the criminal procedure. From the criminal procedural viewpoint, Mr Bryant had the presumption of innocence until his conviction. His conviction was because the Crown established guilt beyond reasonable doubt. However, and of course most critically, that conviction was quashed because the Court of Appeal (following very open concession from the Crown) were not satisfied the decision of the criminal court had been reliable, having regard to the higher burden of proof. The jury instead might have acquitted Mr Bryant had the fuller evidence been put before it and so it was unreliable.
Upon the conviction being quashed, Mr Bryant reverted to the protection of the presumption of innocence. That is ultimately only a presumption, however, albeit a fundamental one. But none of this sequence facilitates an expectation that Mr Bryant can now establish himself by his civil counterclaim to be innocent beyond reasonable doubt. The highest assistance he can expect from the civil court is for any relevant comments it might feel able to express about the weight of the evidence it has considered as might lead to a finding of fact.
- Mr. Bryant's desire to establish (or rebut) an allegation by way of declaration rather than the pursuit of monetary compensation is not unique. Other examples could be found of those accused of abuse in a civil claim as commenced but as never comes to trial. Reasons why such claims might not continue could be various but death or discontinuance by the claimant would be immediate examples. Regardless of the probable statistical minority of such claims, it will be recognized how those accused would thereafter remain in a most undesirable factual vacuum. Serious allegations will have been raised but no findings ever made by the very court utilised by the complainant to present the allegations. Whilst from a puristic legal viewpoint it can be said that an allegation never proven in court remains no more than an allegation, on a personal level it would be unrealistic to ignore the obvious profound distress, inconvenience and expense sustained by those who had looked to those proceedings to rebut the allegations and to establish their innocence. Their sense of injustice and deprivation of process for the accused will enure well beyond merely any payment of their legal costs upon discontinuance, for example.
- I must emphasise at this point that the predicament I recognise of an allegation still needing to be resolved despite the procedural opportunity to do so having been removed might not only affect those accused of abuse but also those who allege abuse. In the case of the latter, this can be because of the relationship between legal costs and legal representation.
- Those alleging abuse, unless extremely solvent, are unlikely to obtain legal representation unless its expense stands a reasonable prospect of being reimbursed by way of a costs order against a defendant following success in the claim. Hence the concept of "success" for the purposes of conditional fee agreements. Success is typically defined in terms of the achievement of an award of damages. So where a factual finding of abuse is required in order to sustain a claim in damages, it remains open to any solvent defendant to make a sufficiently attractive financial offer to settle the damages claim and thereby ensure that the claimant is advised by his or her lawyers on a conditional fee arrangement not to proceed further but to instead accept the offer. So a claimant alleging abuse can also find themselves having been deprived of the opportunity to have their case heard and the benefit of a reasoned judgment.
- I should add that those alleging abuse may not necessarily be as claimant but could be a counterclaimant. Take, for example, an educational institution who might bring a comparatively straightforward claim for unpaid tuition fees against a student who then counterclaims damages for the vicarious liability of the institution for sexual abuse. Here, the primary claim for unpaid fees could easily be withdrawn given the greater implications of the counterclaim.
- Whether complainant or accused, and as claimant or counterclaimant, it therefore seems to me fundamental that in certain appropriate and sufficiently serious cases the courts should be asked to recognise the interests of those for whom pure factual resolution is more important than financial remedy. Indeed, on my understanding, such need probably represents a high percentage of those at the centre of abuse allegations.
- It nonetheless remains comparatively uncommon for a civil court to make purely factual declarations without providing other relief or financial award. Generally, declarations are sought and granted alongside with other forms of relief, typically in the form of injunctions. It may be this reflects former more commonly encountered claims and trends in litigation. Either way, in current times where abuse and sexual harassment claims are becoming increasingly more common, it is important carefully to consider how case law can assist.
- The important starting point is that there is nothing to prevent the court from making a binding declaration simply because no other remedy is claimed. So Mr Bryant is procedurally entitled to seek declarations despite not pursuing a claim in damages. However, in considering whether to grant a declaration or not, the court should take into account the justice served respectively to the claimant and to the defendant, whether the declaration will serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration.
- This is clear from the guidance of (as he then was) Mr Justice Neuberger in Financial Services Authority v John Edward Rourke (Trading As J.E.Rourke & Co)  CP Rep 14 at Para 2 (d) :
"Accordingly, so far as the CPR are concerned, the power to make declarations appears to be unfettered. As between the parties in the section, it seems to me that the court can grant a declaration as to their rights, or as to the existence of facts, or as to a principle of law, where those rights, facts, or principles have been established to the court's satisfaction. The court should not, however, grant any declarations merely because the rights, facts or principles have been established and one party asks for a declaration. The court has to consider whether, in all the circumstances, it is appropriate to make such an order.
In Patten v Burke  1 WLR 541 Millett LJ stated that, in effect, it was the court's duty "to do the fullest justice to the plaintiff to which he is entitled", and he went on to hold that there was no rule of law which prevented a declaration of fraudulent conduct.
In Messier-Dowty v Sabena  1 All ER 275 the issue was whether a negative injunction should be granted. Lord Woolf said this:
"The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved, the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice. …
So in my judgment the development of the use of declaratory relief in relation to commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. It should instead be kept within proper bounds by the exercise of the courts' discretion."
It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration".
- In Rolls-Royce plc v Unite the Union  EWCA Civ 387 Aikens LJ summarised the principles at Para 120 :
"For the purposes of the present case, I think that the principles in the cases can be summarised as follows : (1) The power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a "friendly action" or where there is an "academic question" if all parties so wish, even on "private law" issues. This may particularly be so if it is a "test case", or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.
- Drawing from that guidance, I am satisfied that there is a very real and present dispute presented by this litigation in respect of which a declaration is appropriate.
- The need for a declaration on the facts of this case is, I find, independent of the additional feature of its currency having been, as I also find, deliberately tainted by the Claimant's failure to co-operate and pursue his case through to trial. The purpose of the declaration should not in any way be described as now affecting the Defendant less or having become merely academic because the main claim has been struck out. Mr Bryant was accused of an exceptionally serious assault and so has a legitimate interest, in my judgment, of obtaining the justice of appropriate findings. I do not consider it necessary to show there has been an abuse of process or other default by the Claimant that has caused the current position to arise as a necessary prerequisite for permitting a declaratory remedy of the type sought here to proceed because the authorities frame the court's powers and discretion much more broadly.
- Indeed, any credence to such analysis would have to incorporate and acquiesce to the Claimant's default to enable the proposition even to arise. That cannot be right. It cannot be that a party's abuse of process could be used to their advantage by disputing the applicability of seeking a declaration alone by way of counterclaim. Similarly, neither can a party's procedural unwillingness to participate justify any submission from the same party that they are prejudiced by not being able to reply to the Defendant's counterclaim. I am quite satisfied that the Claimant has had more than sufficient opportunity to respond to the counterclaim.
- These last points and the court's duty, as I accept it to be, "to do the fullest justice to the [claimant] to which he is entitled", per Millet LJ in Patten is the only, and not simply the most, effective way of resolving the litigation in the unsatisfactory state personally created by the Claimant. Further, the use of the term 'claimant' above was clearly not intended to refer only to conventional primary 'claimants' as we now might term them but, as here, also to someone defending allegations and who counterclaims for declaratory relief.
The evidence found relevant in this case
- Mr Bryant has assembled a large amount of material principally emanating from his criminal prosecution. Much of that, and particularly the interview transcripts, focus on a variety of issues that could ultimately generate nuanced questions in cross-examination. In the evidentially qualified context of this case, however, I exercise caution in exploring points of observation if only by being put in cross examination in the witness box can their merits be properly considered.
- If it follows that nothing be gained from attempting to develop finer points of factual challenge against the Claimant when he is absent, it would similarly be inappropriate for the court to descend into the arena and adopt an inquisitorial approach to the Defendant's evidence and that of his witnesses. This point is not the same, however, as the court being entitled to seek clarification on the evidence given in court by witnesses.
- For these reasons, I regard the fairer approach is to take an objective view of certain key features and events. I will deal with them each as follows.
The Claimant's medical evidence
- The Claimant's production of and reliance upon the medico-legal report from the psychiatrist, Dr Nikki de Taranto, dated 12 October 2014, was intended to support his claim for damages. Although the main claim has been struck out, as a report produced and relied upon as part of the claim as issued and permission to rely upon for which was granted, I am entitled to consider it.
- As I have mentioned, the Claimant never took up the opportunity for Dr de Taranto to re-interview him or at least reconsider her report in the light of the quashing of the conviction. The reasons for that are not difficult to guess. Any psychiatrist is clearly reliant upon patient accuracy and honesty in their self-reporting, although any contemporaneous medical records serve to assist and check that process. Nonetheless, when originally interviewing the Claimant it was an established fact that Mr Bryant had been convicted of the allegation the Claimant relied upon in support of his claim for compensation. Without that conviction in place, issues of credibility and inconsistency in the Claimant's medical history recorded in the original report take on a potentially very different relevance to the expert opinion expressed. In other words, causation of the symptoms alleged becomes less clear if the index event itself is known to be fundamentally in issue factually.
- We do not know, and never will, how Dr de Taranto might have revised her views. This is perhaps more a hypothetical observation rather than a qualitative evaluation of the report as it stands though. At this point in this case, the court is no longer interested in the expert opinion of Dr de Taranto but instead what it records about both the Claimant's history and what the Claimant self-reported in interview with her.
- The Claimant reported to Dr de Taranto during consultation how he had had significant aggression and anger management issues from the age of fourteen onwards, following the assault and because of it. He described how boxing provided a "way out" of his aggression. He denied he had ever seen a psychiatrist.
- Dr de Taranto states at Page 9 how she had not seen the Claimant's medical records at the time of her consultation "and so was not able to discuss them with him" but somewhat confusingly at Pages 10 and 11 seems to incorporate comments from the Claimant in response to some of the extracts from the Claimant's medical records as summarised within her report. The process by which this comment was achieved is unclear and cannot now be explained. Given the comment above, it seems less likely that there was any subsequent face to face discussion between Dr de Taranto and the Claimant. This uncertainty remains of some importance, even though discrepancies between original reporting and subsequent clarification is no longer material to Dr de Taranto's opinion and prognosis because that is no longer under consideration. The best one can infer is that correspondence must have been exchanged between the Claimant's solicitors and Dr de Taranto about the Claimant's recorded psychiatric history and that his explanations and comments must be assumed to have been accurately recorded because the report was adopted and incorporated into the Particulars of Claim.
- The extracts particularly relevant for the purposes of assessing the truthfulness of the Claimant's allegation are as follows :
i. In 2000 the Claimant had presented to his GP requesting help because of self-confessed problems with lying and deceiving people. A course of six-counselling sessions was organised for him, although he attended only two of them;
ii. In 2001, the GP noted that counselling sessions had not been completed because the Claimant felt they had not "start(ed) right". The notes appear to record how the Claimant was "still lying";
iii. In September 2006, the GP again made a note that the Claimant reported being "lying and deceitful". He was again referred for counselling, with the referral form noting that "he admits he is a chronic liar and very deceitful".
iv. The Claimant's explanation for these references to dishonesty was that he was referring at the time to lying about his finances to his wife Lorraine. He said he often lied to her about money in an effort to control her spending.
v. This qualified version of the extracts from the Claimant was, however, subject to further scrutiny by Dr de Taranto. She noted that when asked to fill in a self-assessment form in September 2006, he had confirmed he had self-harmed in the past and his presenting problem was described as "constant lying to the degree of nearly losing his home and family, this has been ongoing since I was about the age of twenty-three, I have stole [sic] and lied to the degree that there is something wrong with me, or staged a drama [my emphasis]. This has badly affected my whole family. The cause I do not know".
Dr de Taranto recorded how :
"Given that the information on this form did not appear to tally with some of his other accounts (he reported to me that he has never self-harmed, and also that the dishonesty was confined to his relationship with Lorraine, which started some years after the age of twenty-three), I later queried with this Mr Day, through his solicitor. He reported that this form is not in his handwriting but was filled in by his wife Lorraine, without his knowledge of what she wrote, and was not correct.
vi. This strikes me as a very curious explanation indeed. The Claimant had earlier in the report described Lorraine as someone who was materialistic and had been violent towards him a few times [Page 6]. The Claimant denied he had ever been violent to her and yet Lorraine had apparently managed to secure a "restraining order" from the Police against the Claimant at the time they separated. There is nothing in the above record to indicate what motive Lorraine might have had to contrive the Claimant's self-reporting documentation as would be supplied to his GP. Neither can any obvious logic be applied to show what it could have achieved. If the Claimant was truthful when he told Dr de Taranto [Page 10] that because Lorraine did not work but spent extravagantly "he often lied to her about money in an effort to control her spending", in supposedly completing this form Lorraine must not only have been aware she had been lied to but was seeking to establish a pattern of lying that pre-dated their relationship. How could this have in any way served to her advantage?
vii. The far more simple and rational observation is that the questionnaire had been completed by the Claimant (whether or not in his own handwriting) because it is entirely consistent with the contemporaneous note the GP took of the Claimant's self-description of being "lying and deceitful". I prefer that conclusion.
viii. If, as I so find, the questionnaire was written by or at the direction of the Claimant, then this leads to a most intriguing conflict between his assertion that he did "not know" the cause of his behaviour in the 2006 document with his report to Dr de Taranto at Page 13 that he had sustained flashbacks of the sexual assault :
"several times a week over all the years since it occurred, as well as frequently dreaming about it. He described how he will wake up sweating, having experienced "a very vivid dream" in which it seems like he is watching the events from the outside. The flashbacks will increase, and cause a greater degree of distress and anger, if he encounters reminders of the assault. This can be "anything do to with authority", particularly involving firefighters or police, including programmes or news items on television. He will avoid going near to fire stations and will cross over the road if he has to go past one. If he sees a fire engine he will "spit at it".
ix. The September 2006 GP note recorded how the Claimant had reported having trouble with "aggression when confronted, hence marital harmony". So when in February 2007 the Claimant was referred to the local NHS mental health service, the GP again noted that he was having "recurrent problems in his relationships because of lying and deceit and aggressive behaviour".
This stands in stark contrast to the Claimant remark to Dr de Taranto in October 2014 [Page 6] that whilst Lorraine had sometimes been violent to him, he had never been violent to her.
It is difficult to reconcile these two very different accounts as directly come from the Claimant unless either (i) the Claimant was deliberately lying to Dr de Taranto and so reveals a capacity to entirely contrive the truth when narrating events to that occurred some years previously ; or (ii) back in 2006 he had chosen to describe himself as the aggressor when, in fact, it was his partner.
The latter explanation is less preferable when the very purpose of the consultation and referrals was to seek medical help. If the Claimant was truly the victim at the time, then it would be utterly irrational to instead portray himself as the aggressor when he was not. I struggle to follow how anyone could see this as more conducive to receiving the appropriate medical help and treatment.
I find there is stronger evidence to support the first interpretation and so prefer it.
x. When assessed by a social worker with the mental health team in March 2007, it was noted the Claimant did not have any symptoms of any major psychiatric illness and that his main reported problem was that he experienced difficulties in being truthful with his wife, particularly around financial issues. He also had spoken about how he felt that "many of his problems may lie in the past, and the poor relationship that he had and continues to have with his parents". He described how his father had blamed him for his mother having had cancer.
xi. There is no mention here whatsoever of historic abuse having not only been a factor in the Claimant's symptoms but, as least as portrayed both to Dr de Taranto and in this claim, was in fact a highly material one that lost him a stellar amateur boxing career and was the root of considerable difficulties in inter-personal relationships. Neither is there any mention of the abuse in subsequent medical consultations in August 2010 ["difficult time managing his anger"], January 2011 ["stress re work, feels useless"], or May 2011 [stressed and suffering from insomnia "as wife wants son"]. The first reference to abuse was only after Mr Bryant's conviction.
xii. I accept that it is not unknown for abuse victims to fail to mention acts of abuse for many years, even to those from whom they are entitled to expect both confidentiality and assistance.
xiii. Be that as it may, it seems odd that the Claimant should still entirely omit any mention of the alleged abuse at this stage, having been seeking and receiving medical assistance that had commenced seven years earlier with his first GP consultation in 2000. I note the Claimant never suggested that it was only in these later years that he came introspectively to acknowledge the abuse, perhaps with expert medical assistance. To the contrary, his case is that he had been conscious of the event but chose to keep silent about it.
xiv. To have mentioned the abuse during this period of medical assistance, particularly when under the local mental health service, would not have been incompatible with the history that he had been willing to provide. According to the review of the medical notes, in 2007 the Claimant had described difficulties with parental relationships and communication [Page 11]. Similarly, he had described his father to Dr de Taranto as "aggressive" and that he thought his father would have killed his assailants if he had ever been told of the alleged abuse by the Defendant and Mr Goodman [Page 5].
xv. I follow how it could be said that even with the benefit of specialist medical consultation, during which the Claimant did feel sufficiently able to admit to difficulties in enunciating his problems about his parents and wife, he still felt unable to confide about the abuse. However, this plausible interpretation stands to be tested by the vivid and seemingly spontaneous narrative the Claimant provided to Dr de Taranto after so many years of silence, when assisting her to compile a medico-legal report for the purposes of claiming compensation.
xvi. At Page 6 in her report, the Claimant described how in 2012, some four years into his relationship with his current partner Suzanne who is a community psychiatric nurse, the Claimant chose to first discuss the abuse when visiting Bournemouth to attend her family birthday party. The Claimant had apparently only around this time first researched both Mr Bryant and Mr Goodman on the Internet. His findings (that Goodman was dead and Mr Bryant had received accolades for public service) prompted him to go back to Bournemouth "to try and confront Bryant, finding out where he lived". Having placed a note through Mr Bryant's door saying "you know what you have done wrong, go the police or I will go to the Police", the Claimant then promptly reported the matter to the Police himself.
xvii. The reason for such industry and spontaneity is difficult to follow given the years of counselling and consultation the Claimant had previously received, even with his description of the effect of the visit to Bournemouth.
xviii. A point of more objective contrast is that recorded in the counselling notes in March 2014. They record for the first time how the Claimant had been feeling low and anxious for thirty-seven years since having been raped. He had described having been unable to trust anybody, particularly people in authority such as fire service and ambulance service. He reported "flashbacks of the trauma very much all of the time". He described thoughts of harming his assailant, describing how he had "means of getting to him in jail".
xix. Dr de Taranto's opinion was that the Claimant had sustained Post Traumatic Stress Disorder as a result of the assault he said he had suffered as a teenager. Whilst anger management, relationship and dishonesty problems had "multiple roots", the sexual assault had probably exacerbated those tendencies. Even on the Claimant's medical evidence, then, no specific symptoms were identified and traced to the single index event alleged.
xx. On the basis of the medical notes, it is reasonable to conclude that the Claimant is someone who is entirely able to portray himself in selective and highly fluctuating terms.
The Claimant's participation in newspaper blogs
- Mr Bryant's January 2014 conviction was unsurprisingly reported in a local newspaper, the Bournemouth "Daily Echo". In the article, the Claimant expressed disappointment with the sentence but expressed thanks for the police and CPR and that he wished "to say that I think this incident has no bearing on the fire service itself".
- I do easily not follow how in January 2014 the Claimant could express such objectivity about the fire service as an institution regardless of the two individual fire fighters he said had raped him but, in October 2014, tell Dr de Taranto that the experience had left him avoiding or crossing the road near fire stations and spitting at fire engines.
- The online version of the newspaper facilitated readers to add their comments by way of a blog. Contributions of varying quality immediately were added. Although not initially admitting his true identity, the Claimant came to contribute as well. I consider these contributions in terms both of the varying sequence of the Claimant's stance in his contributions and in the light of the other evidence available.
- On 25 January 2014, someone introducing themselves as "Dan's partner" [i.e. the Claimant's partner] described the Claimant as a sensitive individual who would never harm on anyone and cared deeply for sick or neglected animals : "Dan would give you his last organ to save your life and would demand his name not to be mentioned...I have no idea to express how amazing this guy is and his need to continue his life in peace…Both Dan and I are currently nursing piglets whose mothers wanted to eat them". It continues how "Dan would of [sic] dropped the charges and that would been the end of the matter" had Bryant said sorry when contacted". "Dan doesn't want recognition despite many people putting him forward for what ever [sic] award is on offer".
- Whether written by the Claimant, caused by him to be written or an independent reflection of how the Claimant was representing himself to the contributor, this account stands in stark contrast to the actual note put through Mr Bryant's letter box on 20 October 2012 :
"Dave its Danny Day 35 years Ago I used to collect the glasses in the Legion and I am the same one that you and Spindle played Darts with in the Fire Station (Remember!). At 6'O'clock tonight I am going to the Police Station to report what went on & at 7 to the National Papers I think it is time you and Me had a Chat. My number is 07803 845731. I think this is in your interest to call. One way or another you will pay for what you Done in Late '76 Early '77 Dave Bryant".
- Regardless of the truth of the allegation, this would not strike any reasonable person as anything other than a blackmail note. It is clearly threatening. The invitation to make contact seems well away from a need to discuss and elicit an apology but instead seek either a financial payment or retribution through the threat of Police involvement and publicity.
- I am satisfied this provides further evidence how the Claimant is capable of presenting himself on entirely different bases depending upon what response or result he wishes to achieve.
- This continues to be evident from subsequent sequences in the Blog.
- The suggestion in the 25 January 2014 entry that "Dan" didn't want recognition but instead to live his life in peace seems to have been wrong because, the next day on Sunday 26 January 2014, the Claimant contributed as "John66" remarking about the variety of the contributions to that date, complimenting the legal system as it stood but then publicly revealed his identity. He wrote "The young man in simple truth is my name is. Danny Day. There will not be any compensation claims for this and the fight against Bryant is now finished".
- In an interview with the Daily Echo, published in an edition dated 29 January 2014 and so just after sentencing, the Claimant described how he had originally decided soon after the attack to put the "harrowing ordeal" to the back of his mind but that he "now realised" how profoundly the experience had affected him. "I have thought about it every day". "I didn't want it to affect my life, but it did. I haven't achieved what I should have, in my boxing, in business, in relationships". The article described how the trip to the family gathering in Bournemouth had "provoked his memories of the attack". The article concludes with advice from the Claimant to anyone affected by abuse not to suffer in silence but to speak out, without which there could not be "closure".
- Despite his public avowal not to claim compensation and to speak out in order to achieve seek "closure", by no later than May 2014 the Claimant had instructed solicitors to initiate a civil claim for compensation. They sent Mr Bryant in prison a detailed letter setting out their various proposed steps in the compensation claim on 23 May 2014.
- This change of position by the Claimant is further endorsed when he revived his contributions to the Daily Echo blog in March 2015. Writing again as "John66" on 13 March 2015 but this time commenting as if a third party, presumably overlooking his previous admission that "John66" was himself, the Claimant wrote :
"I understand in this case Mr Bryant's wife knew what had gone on as it was established in the case that her family had a history of this abuse for which she had witnesses herself. On one occasion she even saw it happening and never said a thing which might explain why this victim wants her to be punished as well in what ever why [sic] he can".
- The suggestion that the Claimant sought punishment for Mr Bryant's wife as well is clearly a significant and new approach. I also note the Claimant's facility to revert to describing events in the third person for the intended benefit of both achieving anonymity and to convey an impression of support for him by way of independent comment.
- The Blog from this date followed at least a form of debate about the propriety of claiming compensation for historic abuse. On 13 March 2015 "John66" responded to someone who had questioned why victims might seek compensation by observing that plenty of people claim for road traffic accident injuries and added :"I would get great pleasure beating the purputrators [sic] to pulp but the law doesn't allow that so the next best thing is their liberty and their pocket". The Claimant here has clearly moved on from his earlier self-portrayal.
- Mr Bryant submits that the Claimant's changing position is evidence that the Claimant intended to claim compensation from the outset by way of the 2012 letter. The internet references to him not wanting compensation should be treated as simply a calculating distraction, probably intended to elicit sympathy within his community, particularly pre-sentencing.
- It is certainly fair to observe how the Claimant continued to use the media to provide inconsistent messages about why he was seeking compensation.
- In an article in the Sevenoaks Chronicle dated 30 July 2015 entitled "Knockholt sex abuse victim sues rapist over 'lack of apology' ", the Claimant described how following the event he would sometimes "think about what I could have achieved if none of this had happened. I was on track to go to the 1984 Olympics as a boxer, but all that fell apart". The Bournemouth trip had caused the memories of the attack to "come flooding back" and so he had decided to confront Mr Bryant. "All I wanted off him was an apology. If he had said 'I'm sorry, I was misled' that would have been fine". The article continues "But when Bryant complained to the Police that he had received a malicious letter, Mr Day decided to report the historical sex abuse to the authorities himself".
- The contrast between the self-presented and the "anonymous" versions from the Claimant are clear and striking. In the "anonymous" contributions the Claimant can quite fairly be described as deliberately retributive without reservation. The self-presented accounts portray him as a victim who has reluctantly been forced to speak out and seeks compensation only because of Mr Bryant's unwillingness to admit his deeds. It is very difficult to accept these stances could be described as mutually consistent. I am satisfied they are not and have to ask myself which seems factually the more accurate portrayal.
- This task is clearly more difficult given the absence of the Claimant. However, objective observations can fairly and I find easily be concluded.
- First, the Claimant did not ask for an apology in the 2012 letter but clearly threatened, indicating he would be going to the Police and the Press that same day. The Claimant's suggestion that it was only because Mr Bryant didn't apologise that he "decided" to report the matter is untrue.
- Secondly, it cannot possibly be true both that memories had flooded back in 2012 and yet, as narrated to Dr de Taranto, the Claimant had sustained vivid flashbacks several times a week since the age of 14. The Claimant was lying in one of those accounts – and possibly both, according to the Defendant.
- Thirdly, a point I now turn to, it is simply untrue that the Claimant ever had had a successful career in boxing and was destined for the Olympics.
The dashed Olympic boxing career
- As part of the prosecution case, the Claimant's partner Suzanne Huckle prepared a witness statement dated 1.7.13 setting out her relationship with the Claimant. In it, she refers to him having admitted to "quite a violent past" and how :
"His boxing career, it seems, was a way of him expressing this temper in a controlled environment…Danny has spoken to me about a lot of things especially the boxing. He became quite a renowned boxer in his years and is well known by a lot of the professional boxers some of whom admit that they would not want to share the same ring as him. I asked Danny why he never went professional and he told me he didn't want the publicity. He didn't want the two firemen to see him on telly and know what they had done to him, he even dropped out of the Olympic Team in 1983 when he was picked to fight in the 1984 Olympics. He explained that one of the firemen's relatives was the British Boxing Champion Gordon Goodman and it was he who encouraged Danny to Box."
- Also for the prosecution, in a statement dated 14.07.13, Mick Gregory set out his proposed evidence on behalf of the Claimant. It narrates how Dorset Police had asked him to provide a statement to explain "Danny's boxing history". Mr Gregory wrote that he had known the Claimant from late 1979 when he was 16 years old :
"and keen to re-start his boxing training that he originally started 8 years previous at Marvels Lane Boxing Club in South East London under the direction of head coach Alan Lawrence. By 1993 Danny had had 61 inter club bouts, he had won 57 of these by way of KO, TKO or on a points decision. In 1983 he was selected to be part of the English squad to go to Los Angeles in mid 1984 for the Olympics. Within two weeks of the selection process Danny had pulled out just saying he did not want to go. He actually withdrew from all club level boxing".
The statement continues to describe further boxing activity by way of "exhibition bouts" for various clubs in London "including sparring some of the then up and coming champions and in around 1990 he applied to ABAE in Sheffield to complete his junior coaching certification". He coached until 2009 after which, following heart problems, he "retired completely".
- I approach these statements not with regard to the way they were proposed to be (but it transpired were not) used as part of the prosecution case. Instead, they stand as written evidence apparently supported by statements of truth of either what the Claimant had directly told them (Huckle) or what the Claimant and a witness (Gregory) were willing to have adduced in court. There is no doubt that the factual assertions in this evidence emanate from the Claimant, even though there is no document from him directly that incorporates these assertions.
- The witness evidence of Suzanne Huckle and Mick Gregory are formally adduced and relied upon by Mr Bryant by way of hearsay notices. They therefore constitute evidence before me, despite having been prepared in a different forum and neither witness being called.
- The Claimant's account of an illustrious boxing career was repeated in his consultation with Dr de Taranto. The Claimant has, of course, adopted this report by incorporating it into his Particulars of Claim.
At Page 5 in that report, she recorded the Claimant had told her that :
"He continued with his boxing into adulthood, and reports that at the age of twenty-one he was chosen to represent Great Britain as a middleweight at the 1984 Olympic Games in Los Angeles. However, he describes, the year before the Games, he quit the Olympic team because he could not bear the thought of Bryant and Goodman seeing him on television. He told me that the thought of this gave him "cold sweats".
- As part of his appeal against conviction, Mr Bryant engaged a private investigator, Mr Michael Pettitt, to look into the Claimant's asserted boxing career. Mr Pettitt is a former Police Officer, having served for 30 years and retired at the rank of Detective Sergeant. His carefully described research is described in two witness statements dated 3.6.16 and 29.06.16, as prepared for Mr Bryant's appeal. Mr Pettitt confirmed the accuracy of these statements for the purposes of this civil claim in his witness statement dated 23.04.17.
- Mr Pettitt's research reveals that :
a. In every weight division for those in the 1984 Olympic squad, all had been winners of at least one ABA championship. Such information is widely published on various websites;
b. In contrast, there are no records to establish the Claimant participated in an ABA final at any weight division between 1980 and 1985;
c. An interview with Terry Gillam, a retired president of the English ABA and an active official within amateur boxing, established that (perhaps unsurprisingly) qualification for Olympic level is based on performance in inter-club bouts, regional and national championships, most notably of which are the annual ABA national championships. To qualify for the final squad, contesting in an ABA national final in the three years prior to an Olympic competition would have been the expected norm and precedent;
d. Enquiries with the office of England Boxing, which clearly described all relevant information about the Claimant, met with a written response from the Office that they had no record of him. Whilst they could not preclude the Claimant being recorded on a database operated by a third party, the Claimant was not to be found on any of the available databases in respect of the English ABA or GB boxing teams. The Office confirmed that their records would definitely include an individual who had been selected to be part of the final ("podium") squad and GB Olympic team;
e. The confirmation was repeated when Mr Pettitt requested the Office to search against six rational variants of the Claimant's name and surname;
f. Marvels Lane Amateur Boxing Club in Grove Park, SE 12, through its Head Coach Victor Newman, confirmed the Claimant was not known to the club. This was despite Mr Newman having been an amateur boxer himself, competing at regional level in South East London during the early 1980's. The Club's "Roll of Honour", as records past champions of both regional and national level ABA competitions, does not mention the Claimant. Neither did Mr Lee, a chairman of the club for some 40 years and, significantly, who would have been the chairman during the period 1980-84, remember an Olympic squad member who had trained at their club;
g. Following a visit to the London regional office of the Amateur Boxing Association and speaking to two long standing members of the ABA, neither could recall the Claimant in any capacity, whether as boxer or coach;
h. Both the ABA and the Marvels Lane Club did confirm, however, that Mick Gregory was a former boxing coach at national / Olympic level and was a well-known and connected local coach;
i. Enquiries with Kevin Hickey MBE, a former GB boxing coach and, according to those at the ABA, the foremost authority on Olympic and elite level amateur boxing within Great Britain, having coached Olympic squads between 1972 and 1988 and subsequently undertaken senior roles within the Olympic Association and the ABA, resulted in Mr Hickey "categorically" stating he had no knowledge of any boxer by the name of the Claimant.
- Mr Hickey's impressive CV within the trial bundle clearly establishes his credentials within the sport of boxing.
- Mr Hickey signed a witness statement dated 16.06.16 as part of the appeal proceedings. In this he confirms what he had told Mr Pettitt. To the best of his knowledge, there has never been a person by the name of the Claimant who had been recommended or selected to the Olympic squad. Moreover, Mr Hickey found the Claimant's boxing achievements, as alleged on his behalf by Mr Gregory, "quite amazing". To achieve the success of 57 out of 61 bouts was something Mr Hickey had never heard of from anyone. To achieve this would take about five years to achieve and would "certainly" have justified selection for the Olympics.
- Mr Butler on behalf of Mr Bryant told me, and I think I am entitled to take judicial note of such information rather than require it formally to be proved that :
b. Admitted to knowing the Claimant when he was aged about 10-13 years "as a boxer" "from school" but states he then had no further contact with the Claimant until about 2011/12 when he heard about the Claimant supplying boxing rings;
c. Offers no reference to knowing about the Claimant's asserted boxing career or achievements;
d. Could not recall whether the 2013 statement had been sent to him in the post or handed personally to him by the Claimant but that he recalls the Claimant asking him for a character statement "over a Police matter. He did not tell me what the case was about. I don't know now either…".
a. The Claimant, Daniel Day, did not have any significant or notable amateur boxing career of the type portrayed on his behalf by various individuals but, most critically for the purposes of this civil claim, by Dr de Taranto in her report. He had fundamentally lied to Dr de Taranto, as he had to his partner Suzanne Huckle;
b. Any boxing experience the Claimant may have had in the past is wholly insufficient and irrelevant for the purposes of supporting the allegation he came to rely upon in this civil claim;
c. Daniel Day had entirely fabricated a boxing career of the type alleged for the purposes of influencing the criminal process in his favour and sought to involve others either favourably to achieve that influence or at least preserve his credibility within it. By criminal process I connote both the original prosecution and subsequent appeal by Mr Bryant against sentence;
d. Daniel Day has entirely fabricated a boxing career of the type alleged for the purposes of influencing the civil process not only generally in his favour, perhaps on a point of character or credibility, but specifically for the purposes of financial gain. There can be no rational counter-explanation that this was a merely incidental and mistaken narrative that he never intended to enhance his claim for compensation. The two are inextricably linked. Assuming mental capacity, no-one can possibly be mistaken in recalling that they had a stellar boxing career through to the level of being selected for the Olympics. No-one can unintentionally or incidentally describe such a significant career, and allege having lost it because of the alleged sexual assault, as part of the information gathering exercise of a medico-legal expert instructed by Solicitors appointed with a view to presenting a claim for compensation. Any sentient adult would be completely aware of the implications of introducing such wilful fantasy into that exercise.
a. The nature of the firefighters' duties were such that, at any given time, seven firefighters might urgently attend the station for the purposes of answering a call. Further two full time firemen lived in the flats at the top of the station. He therefore challenges the likelihood of anyone choosing the recreation room as somewhere suitable to carry out an illegal sexual act, still less one where (as the Claimant alleged) caused the victim to shout out. The chances of unexpected interruption were high, as was the possibility of being heard;
b. The pool table did not arrive in the recreation room at the station until after 1990 before which there was no such table. Mr Trowbridge was personally involved in collecting the pool table from a local pub in the Fire Brigade's Land Rover. Mr Trowbridge feels he is accurate about the dates because he was awarded a long service medal in February 1990 and is sure the pool table was not there then;
c. There was no external door from the recreation room until at least 1990 onwards. This is clear from photographs taken at the medal award ceremony in February 1990;
d. He didn't recognise the description of access and layout to the recreation room provided by the Claimant during interview. In particular, the Claimant's asserted location of the dart board;
e. Specifically, he challenged that pedestrian access could have been through the concertina doors to the station. These opened only from the inside and it was not possible to gain access externally. External access was instead through the door on the lower floor. One would then climb the stairs to the appliances.
a. Daniel Day has sought to undermine the administration of justice by making false allegations that he had been sexually assaulted by David Bryant;
b. Daniel Day has sought to undermine the administration of justice by alleging he had sustained physical and psychological damage as a result of the alleged assault;
c. Daniel Day has sought to claim compensation from David Bryant, and has obtained compensation through the Criminal Injuries Compensation Authority, by contriving an allegation that was false and fundamentally dishonest;
d. Daniel Day has sought to utilise the attention of public services, particularly Dorset Police, the Crown Prosecution Service, the Criminal Courts, and the media for the purposes of a campaign of self-aggrandisement and publication based upon false allegations against David Bryant.