Sussex Police Authority, R (on the application of) v Cooling & Anor [2004] EWHC 1920 (Admin)

Case No CO/257/2004[2004] EWHC 1920 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 22nd July 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF SUSSEX POLICE AUTHORITYClaimant-v-
Between
DR NICHOLAS COOLINGDefendantMR KEVIN FRENCHInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS D POWELL (instructed by Force Solicitor, Sussex Police) appeared for CLAIMANTTHE DEFENDANT APPEARED IN PERSON for in personMR J BEGGS (instructed by Pattinson & Brewer Solicitors) appeared for INTERESTED PARTY
J U D G M E N TThursday, 22nd July 2004
[1]MR JUSTICE COLLINS: This is a claim by the Sussex Police Authority for judicial review of a decision of Dr Nicholas Cooling who at the material time was acting as the selected medical practitioner pursuant to Regulation H1(2) of the Police Pensions Regulations 1987 as amended.[2]The decision reached by Dr Cooling was that Mr French, who had been a Detective Chief Inspector in the Sussex Police, was permanently disabled from performing his ordinary duties as a police officer by reason of an injury received in the execution of his duty and that the degree of his disablement amounted to 53 per cent. This would have entitled him to an injury award, in addition to the pension which he enjoyed having retired from the police force.[3]The relevant regulations are as follows. First A11(1) provides:
"A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable and, where the person concerned is an auxiliary policeman, during a period of active service as such. "(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if - (a) the member concerned received the injury while on duty..."
I need not read the balance.[4]Accordingly, as can be seen, the expression "execution of duty" is widened by paragraph 2 to apply if the injury was received while the police officer in question was on duty.[5]A13 provides:
"For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received."
[6]Thus the causative connection is satisfied provided there is a substantial contribution to the disablement in question. As the authorities on these Regulations show, causation is not to be determined in a strictly legal manner, but in a common sense manner that one would expect a doctor to apply.[7]H1 deals with reference of medical questions. Paragraph 1 reads:
"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority. (2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions - (a) whether the person concerned is disabled; (b) whether the disablement is likely to be permanent; And, if they are further considering whether to grant an injury pension, shall so refer the following questions:- (c) whether the disablement is the result of an injury received in the execution of duty, and (d) the degree of the person's disablement..."
[8]Then, paragraph 5. I do not read the precise terms, but the effect is that the medical practitioner must express his decision in the form of a report, and that, subject to the rights of appeal given to the police officer, is final. There are no rights of appeal given to the police authority. Accordingly, the only remedy, if it is said that there has been an error of law in the decision made by the selected medical practitioner, is judicial review.[9]I am bound to say that it is a slightly strange provision that a medical practitioner is given the duty of deciding whether an injury is received in the execution of duty, because that is not something that one would expect medical practitioners to be concerned with because it is not a matter of medical knowledge. It concerns the application of facts to the statutory provision, and that is more a matter, perhaps, for lawyers than for doctors. But that is the way the Regulations work and, as I understand it, have worked for a fairly considerable period of time.[10]I should say that Dr Cooling is very experienced in dealing with this sort of work, having acted as a senior practitioner on behalf of a number of police forces in his time.[11]Those then are the relevant statutory provisions. I shall deal with the circumstances of this case which I can do, relatively briefly, as an introduction. There are certain matters I will have to come back to when considering Dr Cooling's report.[12]On 15th January 1998 there was an incident in which a suspected drug dealer was shot and killed by a police officer of the Sussex Constabulary. That happened in the course of a raid on the victim's home. The raid was organised, as a result no doubt of information, by the police, and Mr French played a significant part in the organisation of the exercise which unfortunately went badly wrong and attracted a great deal of media attention and criticism at the time.[13]The result was that the Kent force were called in to investigate and to see whether criminal proceedings should be instituted. On 11th February 1998 Mr French was served with what is called a Regulation 7 Notice, which effectively put him on notice that he was under investigation.[14]The significance of that date is that on the following day, the 12th, his general practitioner records show that he first attended complaining of stress related anxiety. He had had before that no history of any stress, depression or psychiatric related problems.[15]He was formally suspended on 22nd May 1998, and at some stage, I am not entirely sure precisely when and it does not matter, he was interviewed on four occasions by officers who were investigating from Kent. He found those very distressing and, as he said to Dr Cooling, felt that they gave him a wholly different view of policing because it was his view that the investigation was thoroughly unfair. I am not giving the exact words that he used, but that was the effect, as I understand it, of what he was complaining about.[16]Following that, he was charged with an offence of misfeasance in office. The officer who had actually shot the victim was charged with murder. Three other officers were charged with misfeasance.[17]For reasons which are not material to this claim, the criminal proceedings took a very long time to reach a conclusion. It was decided, no doubt understandably, that the murder charge should be dealt with separately and in advance of the misfeasance charges. The officer charged with murder was acquitted on the direction of the judge after the conclusion of the prosecution case, his defence being one of self-defence which the prosecution was unable to negative.[18]There then followed the misfeasance trial which, as I understand it, because the judge who had dealt with the murder and who was, in those circumstances, the appropriate judge to deal with the misfeasance, was on circuit in Wolverhampton at the material time, the case was transferred up there. The defendants were arraigned but no evidence in the end was offered. There were, as I understand it, two or three days of legal argument of one sort or another, with the upshot that no evidence was offered. This occurred at the end of May 2001.[19]The decision then had to be made as to what should happen to Mr French. Obviously, he having been acquitted, on the face of it there was no reason why he should not return to work, and he expected that he would be able to return to work, particularly, as he says, because he had been assured that he would not face any disciplinary charges if he were acquitted on the criminal charges.[20]He remained suspended for a short period of time after the acquittal, but that suspension was lifted on 4th June 2001. As I have said, he was then expecting to go back to work. Unfortunately that did not happen. He attempted to go back to work. He attended at headquarters but was unable, as I understand it, to see anyone to discuss any relevant matter and certainly was provided with nothing to do. He knew that he had been promoted, but his promotion to Chief Inspector was confirmed only by the fact that he received the commensurate salary. He was not informed beyond that.[21]It seems that at about that time Mr Blunkett became Home Secretary and formed a view about the workings of the senior officers in the Sussex Police, and he required, or certainly put pressure upon those responsible which resulted in the resignation of the then Chief Constable. At some stage, and I am not sure whether it was then or earlier, the Assistant Chief Constable, who had been in overall charge of the operation, also resigned.[22]This left the police concerned with what they should do in relation to Mr French and pressure was put through the Police Complaints Authority which resulted, eventually, in a decision that there should be disciplinary proceedings taken against Mr French.[23]In the meantime, a certain amount of pressure, Mr~French says, had been put upon him that he should think in terms of retirement. He was, as I understand it, either just about to complete, or had just completed, 30 years' service in the force. Normally that would have been the time when he retired.[24]In any event, whether or not because of the pressure that was placed upon him, he decided that the time had come when he would retire. He made that decision, but that was overtaken by the decision to take disciplinary proceedings (because he was told that he could not retire so long as the disciplinary proceedings were pending) and he was suspended, yet again, until they were concluded. In due course, and again there was a substantial delay, it was decided that no evidence should be offered against him and, effectively, the disciplinary proceedings were withdrawn. But this did not happen until 2003.[25]He then did retire. He received, as he was entitled to, his ordinary pension, but he applied for the injury award which has led to this claim. I should say that there is no criticism against Dr Cooling's findings in relation to permanent disablement. I am concerned only, and the criticism is only levelled at, the conclusion that what occurred occurred as an injury in the execution of Mr~French's duty.[26]Before going to the report provided by Dr Cooling, I should refer to the main authority in connection with this sort of case, that is R (Stunt) v Mallett [2001] ICR 989. That also concerned a police officer who, as a result of an incident whilst he was on duty, found himself the subject of disciplinary proceedings which resulted in him suffering from a psychiatric illness which resulted in permanent disablement. The question there was whether he had suffered it in the execution of his duty within the meaning of the Regulations.[27]It perhaps is helpful simply to read the headnote which sets the background and explains the circumstances in the Stunt case:
"The applicant was a police officer on duty when he made an arrest for a public order offence. A complaint was made by the person arrested which, following an investigation, led to a decision to charge the applicant under the police discipline code with making an arrest without good and sufficient cause. During the investigation the applicant took sick leave complaining of the stress resulting from the investigation, and no further disciplinary action was taken. A police doctor certified that the applicant was permanently disabled by depression but that the condition was not the result of any injury received in the execution of his duty as a police officer. The applicant appealed and was examined by the respondent, a consultant psychiatrist acting as a medical referee, who diagnosed a severe depressive illness, not the result of an injury in the execution of his duty, but of his reaction to the internal investigation. He was therefore refused an award under [the relevant regulation which in fact is B4 which I have not read, but is the one which entitles to the award]... The applicant's application for judicial review of the medical referee's decision was granted on the ground that his psychiatric injury, suffered as a result of his being subjected to a disciplinary investigation, was an 'injury received in the execution of duty' as defined by regulation A11. "
On appeal by the Commissioner of Police - "Held, allowing the appeal, that a police officer who had a disabling psychiatric illness as a result of stresses actually suffered through being at work received an 'injury in the execution of duty' within regulation A11... and was accordingly entitled to an award... but that, although police officers ran a particular risk of disciplinary proceedings by the very nature of their office, if injury resulted merely from subjection to such proceedings, it was not suffered 'in the execution of duty' but rather from the officer's status as a constable; and that the fact of continuing to work through a period of the investigation before taking sick leave could not bring the applicant's psychiatric injury within the regulations."[28]The Court of Appeal considered a previous judgment of Richards J in R v Kellam, Ex p South Wales Police Authority [2000] ICR 632. At page 994 of the report through to 996 Simon Brown LJ gives extensive citation from Richards J and approves, essentially, what he had to say. He summarises his conclusions, that is to say Simon Brown LJ's conclusions, at paragraph 34 on page 1000 where he says this:
"It follows that I would regard the series of cases concluding with Kellam [2002] ICR 632 to have been rightly decided provided only and always that the officer's ultimately disabling mental state had indeed been materially brought about by stresses suffered actually through being at work. In the majority of the decided cases this clearly was so; the significant part played by events at work was a consistent theme. In Kellam itself, however, that was by no means obvious. The medical referee there ascribed the officer's depressive illness 'to emotional stress which had four causes: (1) the stillbirth, (2) his wife's treatment by the police force, (3) his perception of the attitude of his colleagues after his wife won her case against the chief constable, and (4) the investigation of his neighbours' complaint against him.' Allowing the officer's appeal, the medical referee said: 'These all interacted with each other and all substantially contributed to the disablement. The last three in my opinion resulted from his being a police officer."
[29]That was related to what was described in the Stunt case as the wider argument. Then at paragraph 46 Simon Brown LJ said this in relation to what he described as the narrower argument:
"Sympathetic though I am to police officers for the particular risk of disciplinary proceedings they run by the very nature of their office, I cannot for my part accept the view that if injury results from subjection to such proceedings it is to be regarded as received in the execution of duty. Rather it seems to me that such an injury is properly to be characterised as resulting from the officer's status as a constable - 'simply [from] his being a police officer' to use the language of paragraph 5 of Richards J's conclusions in Kellam [2000] ICR 632, 645 when pointing [out] the crucial distinction. This view frankly admits of little elaboration. It really comes to this: however elastic the notion of execution of duty may be, in my judgment it cannot be stretched wide enough to encompass stress-related illness through exposure to disciplinary proceedings. That would lead to an interpretation of regulation A11 that the natural meaning of the words just cannot bear."
[30]The distinction that the learned lord justice was there drawing is what was described by Richards J as a distinction between a person's service as a police officer as against his simply being a police officer. In Kellam Richards J had made it clear that the causal connection must be with the person's service and not simply with his being a police officer.[31]The final point which comes from Stunt which is relevant, is that it was argued that Mr Stunt's illness could in any event be regarded as having been occasioned whilst he continued to undertake police duties between receiving notice of the complaint in July 1993 and departing on sick leave in November. So there was a period of some 4 months or so when he remained on duty. It was argued that during that period a significant part of the stress was the worry about the possible disciplinary proceedings. He was then on duty and therefore it was argued that it fell within the wording of A11.[32]Simon Brown LJ rejected that argument and went on in paragraph 48 to say this:
"It seems to me wholly unrealistic to suppose that the fact of being at work during the course of the investigation actually exacerbated the stress from which Mr Stunt was suffering; if anything one might suppose that his duties at work helped to take his mind off his worries. Why should the mere fact of his continuing at work whilst the stress deepened qualify him for an award? Such a claim is no stronger than had he during this period been developing a heart condition or other constitutional disability. "49 There is this consideration too: had Mr Stunt been suspended from duty during the investigation (as many officers are), clearly no such argument would have been available to him. It would be surprising and unsatisfactory if for the purposes of an injury award in circumstances like these a distinction fell to be drawn between those suspended from duty and those continuing at work. In my judgment it does not."
[33]What that also makes clear is that when an officer is suspended from duty he cannot be regarded as being on duty. In fact, that may be thought to be relatively obvious, but that is clearly spelt out from the decision in Stunt.[34]Dr Cooling reported on 14th October 2003, after having examined Mr French in September of 2003. His report, after an introduction and an indication of his qualifications and reference to the information with which he had been provided, refers to the interview and what he was told by Mr French. I need not go through the whole history which I have summarised, but paragraphs 35 to 38 are important. They read as follows:
"35. When I interviewed Mr French, he told me that he received awful treatment by the press during the course of the criminal investigation. After the Wolverhampton trial and his acquittal, Mr French says that he never went back to work, but he was called into HQ and then to the police station in Seaford. He was seen by two superintendents and suspended from duty again. "36. At interview, Mr French told me that he feels that his employers were completely unsupportive after he was acquitted of the criminal matters and he feels that pursuing the disciplinary process was an abuse of process and his further suspension changed his life forever. As he put it at interview, 'It completely destroyed me. They should never have done it'. "37. At interview Mr French told me that he feels that he would have been able to continue with his career if his senior colleagues had offered him any support after his acquittal at Wolverhampton Crown Court. "38. In the event there were no constructive steps taken to provide him with recuperative duties and a gradual return to operational duties and he formed the opinion that his superiors were unsupportive and that they remained convinced of his guilt."
[35]Then, in his opinion, Dr Cooling says this:
"48. My opinion is that Mr French is currently suffering from a moderately severe depressive illness. This depressive illness has reached a stage of chronicity. "49. It is my opinion that he is permanently mentally disabled from carrying out the ordinary duties of a police officer. "50. I recognise that the very act of suspending Mr French, the disciplinary process and the criminal process do not of themselves constitute an injury on duty. However, my opinion is that a great deal more could have been done to rehabilitate Mr French at a much earlier stage and on this basis I think that an injury award is justified."
[36]The police authority, through its Head of Employee Relations, having received that report, wrote a letter seeking some clarification. The conclusion in paragraph 50 is not, on the face of it, a good reason for deciding that the psychiatric condition in question was injury in the execution of his duty. Indeed from what is said in the first sentence of paragraph 50, it might appear that the second sentence is not justified. Accordingly, a request for some clarification was sent to Dr Cooling. What was said was this:
"It is clear from your report that the need to establish the officer was 'on duty' at the time of any injury was fully appreciated and this was explained in both the generic and specific briefing packs provided relating to Mr French. Once suspended from duty in June 1998, Mr French never actually returned to a role that required him to execute any of the ordinary duties of a police officer. Although his suspension was lifted in June 2001, he did not return to work by agreement and he gave notice of his intention to retire in September of that year (2001). Of course he was suspended again before his retirement could take effect but we do not have a record of his being 'on duty' within the terms of Regulation A11 of the above mentioned regulations, at a time when any injury could have occurred."
[37]That was the salient request which Dr Cooling was asked to deal with. He did so in a letter of 11th December 2003. What he said so far as material was this:
"In my opinion, technically Mr French remained on duty during his suspension and that he was available to undertake his role had the suspension not been in place. "
I recognise that the very act of suspending Mr French, the disciplinary process and the criminal process do not of themselves constitute an injury on duty. However, as I said in my report of 14 October, I think that a lot more could have been done to rehabilitate Mr French and manage him effectively during the course of the suspension. "When I interviewed Mr French, he told me that he was not managed proactively in terms of welfare follow up during the suspension and no active plans were put in place during the suspension with regard to recuperative duties once the suspension was lifted. ... "According to Mr French, there were no constructive steps taken to provide him with recuperative duties and a phased return to his post. Lack of contact with management during the suspension indicated to Mr French that his superiors were unsupportive and he felt that they remained convinced of his guilt. "On this basis, I think that Mr French was not adequately supervised from an employment perspective during the course of his suspension and in my opinion not everything, which could have been done by a supportive and prudent employer, was done during the process of the suspension and criminal investigation. "Do feel free to send me a briefing regarding the actual contact, which Mr French had from personnel and occupational health during his suspension. I have formed my opinion on the basis of the briefing you sent me and on the basis of my interview with Mr French."[38]Having received that the force solicitor wrote to Dr Cooling indicating that in his view, in the light of the legal considerations which were applicable in relation to suspension, with particular reference, although he does not cite it in terms, to the propositions laid down in Stunt, the decision was not one which could be accepted and judicial review was threatened.[39]In fact there was a response to that letter on 15th January, but I gather, although I have not seen the letter, that in the meantime Mr French had also written to Dr Cooling in a letter of 8th January, providing, it seems, some further information.[40]Ms Powell submitted that I should not consider the letter of 15th January, or indeed any subsequent material which has been sought to be put before me in the form of a very substantial statement from Mr French and a further report from Dr Cooling, because I am concerned, and concerned only, with the report which was provided in accordance with the regulation, and concerned to see whether that report showed that the decision was one which could be regarded as correct in law.[41]I can well understand Dr Cooling's concern to indicate precisely why it was that he reached the conclusion that he did, and to seek to justify that conclusion in the light of his understanding of what the correct approach was. Indeed, Dr Cooling has appeared before me in person and has helpfully put before me his reasons for reaching the conclusion that he did. I should say that he tells me that he is concerned about this claim brought against him, and he feels that it is something that he ought to defend.[42]May I make it clear that it does not in any way reflect on him or his ability as a medical practitioner. The only question is whether he got the law right, if I may put it that way, in relation to whether, on the facts, this could fall within the definition in A11. He must not feel that there is any stigma attached to the decision that, in law, he, in my view, did get it wrong.[43]In the letter of 15th December, Dr Cooling focusses on the times during which he was not suspended and so could be regarded as still being on duty, that is to say, prior to his initial suspension in May 1998 and between June and September 2001. Because Mr French received insufficient monitoring and supervision, in particular during the June to September 2001 period, Dr Cooling felt that it was appropriate to take the view that the disability from which he suffered was substantially contributed to by those failures during that time. It could, in Dr Cooling's view, properly be said that when he attempted to go back to work and received no support (indeed quite the contrary) he should properly be regarded as having been on duty.[44]The contrary argument put by Ms Powell is that as a matter of fact he never was on duty during that period. Attempts to go to work cannot constitute being on duty. Indeed, the mere fact that an officer remains a police officer and is not suspended cannot put him on duty, otherwise an officer while at home or overnight or whenever might be regarded as still on duty where one is concerned, as here, with a stress related psychiatric condition. The reality is that, in my view, he never was on duty.[45]So far as the initial period is concerned, that clearly related to the investigation before he was suspended and thereafter, while he was suspended, as Stunt makes clear, he could not be regarded as on duty. Accordingly one must, for the purposes of the regulation, disregard as a possible causative matter, the condition resulting from the investigation and the criminal process. The same applies to what occurred from September 2001 onwards. It will include the interviewing which Mr French found so traumatic which led to the subsequent suspension.[46]Dr Cooling accepts, as one would expect, that if one simply isolates out the period from June to September it cannot, on its own, be said to have amounted to a substantial cause of what happened. But his point is that one should not isolate it out, one should look at it in the context of what happened as a whole and recognise that the lack of support then was indeed something which contributed to the ongoing condition.[47]In the light of the authorities it seems to me that that is not a permissible way of looking at the situation, even assuming that it can properly be said that Mr French was on duty during that period. It seems to me that that is something which, on the facts, is very difficult to accept, because the reality is that he never was. The reality is that any malpractice or failures by the police authority cannot translate the situation from one where the officer was not on duty to one where he was.[48]Those shortcomings, if they are established against the police authority, are highly relevant in the civil proceedings that Mr French is taking against the police authority. But they are not, in the circumstances, material for the purposes of these proceedings and a decision whether the injury occurred in the execution of his duty as defined in A11.[49]That being so, I must quash the decision of Dr Cooling and the matter will have to be reconsidered. If Mr French wishes to pursue the application the matter will be reconsidered by another medical practitioner who will consider the matter if asked to do so.[50]MS POWELL: My Lord, I am very grateful. In the circumstances I would ask that the claimant's costs are paid.

MR JUSTICE COLLINS: By whom?

[52]MS POWELL: By both Dr Cooling and by Mr French. It is unusual, very, very unusual in these cases for a selected medical practitioner or medical referee to actively resist the proceedings and/or to attend at them.[53]MR JUSTICE COLLINS: Well, I follow that, but I do not think these proceedings would have been allowed to go through unchallenged, would they?[54]MS POWELL: My Lord, no, but the actions of Dr Cooling in corresponding with Mr French, and in providing a further report which was sent, not to the court and to the claimant, but sent to Pattinson & Brewer, solicitors for Mr French, which suggests -- and indeed from the costs schedule, it is quite apparent that there has been a considerable degree of contact between the interested party and the defendant in this case.[55]MR JUSTICE COLLINS: Yes, well, as I have perhaps made clear in argument, and I think with respect, Dr Cooling, that was not an appropriate thing to do, because you were appointed really as an independent examiner if you like for the purposes of the pension decision, but I cannot see how that would increase costs so far as you are concerned.[56]MS POWELL: By doing that Dr Cooling perhaps gave succour and encouragement to Mr French in resisting our application for judicial review.[57]MR JUSTICE COLLINS: Mr French had counsel to advise him. He decided that these arguments were arguments which could be properly put forward and, as I say, I do not see that this would have made any difference.[58]MS POWELL: My Lord, I do not press the point too strongly here against Dr Cooling. The claimant is entitled, in my submission, to recover its costs. It matters really not to the claimant from whom it recovers those costs.

MR JUSTICE COLLINS: Well, yes and no.

[60]MS POWELL: I do not know, and cannot tell your Lordship, but Mr Beggs obviously can, whether Mr French has the support of the Police Federation in these proceedings, or whether he is privately funded. But, in my submission, that should be irrelevant. Mr French has had the advice of counsel and experienced solicitors.[61]The letter of 15th January written by Dr Cooling was clearly going to be relied upon by those representing Mr French in their submissions. Your Lordship having indicated that that could not be taken into account --[62]MR JUSTICE COLLINS: I think what I have said, and I hope I have made fairly clear, is that it did not seem to me that actually it helped them.[63]MS POWELL: No. I could have made those submissions in due course in any event. But, my Lord, lest it be suggested that the interested party has found himself here today because in my skeleton I did not invite your Lordship to disregard that letter, but instead said that I would make submissions about the inconsistencies. I did not know when I settled my skeleton argument, because it had not been disclosed to me, that that letter had been written following receipt of a further communication from Mr French, and so I did not know that it --[64]MR JUSTICE COLLINS: I am not sure that that would matter anyway. Either they decided to attend and resist, or they did not. It does not matter on what basis.[65]MS POWELL: But in any event I should make the submission that the preparation time for these proceedings has been elongated beyond all measure by the vast quantity of, if I may say so, with respect, utterly irrelevant material that was included in the grounds of response and the first witness statement of Mr French, both of which were almost carbon copies --

MR JUSTICE COLLINS: I do see the force of that, I am bound to say.

[67]MS POWELL: And the further witness statements that have been served, served only to obfuscate an entirely clear and discrete issue, which is the issue that your Lordship has dealt with. Having been served with all that material we have had to deal with it which has made our --

MR JUSTICE COLLINS: I see the force in that.

[69]MS POWELL: But in principle we have succeeded against the strongest resistance, save for actually today, by the interested party, and in my submission therefore we are entitled to our costs and I would ask that you order payment.[70]MR JUSTICE COLLINS: Dr Cooling, it would be very rare for someone in your position to run the risk of costs. I am not going to make any order against you, but I am bound to tell you that you did run the risk by choosing to take part of some costs order. I am not going to make any order against you because I do not think that what you have done has added in any way to the costs so far as the claim between you is concerned, although I am bound to say, as I indicated earlier, I do not think you should have, frankly, taken it personally in the way that you obviously did. I understand and I sympathise, but for future reference you will know.[71]DR COOLING: Your Lordship that is very helpful. I received a huge quantity of correspondence from both sides and I have done my best to act in an evenhanded fashion.

MR JUSTICE COLLINS: I fully understand.

[73]DR COOLING: But I fully accept your adjudications on the basis of my original report, not the huge amount of documentation that has been received subsequently.[74]MR JUSTICE COLLINS: Mr Beggs, what about you? You have, undoubtedly, produced a lot of paper which was, frankly, inadmissible, and you have added to costs to that extent. But quite independently of that, why should you not pay the costs?[75]MR BEGGS: Well, my Lord, can I ask you to look at it this way: Mr French has now been at the wrong end, or was at the wrong end, last year, of 5 years of legal processes.

MR JUSTICE COLLINS: I understand that.

[77]MR BEGGS: It cannot be said that the claimant, the police authority, is entirely without blame in relation to that because, for example, it took them virtually two years to resolve disciplinary proceedings.

MR JUSTICE COLLINS: Well, that is not material for these purposes.

[79]MR BEGGS: No it is not, I quite accept that. However, you are dealing with a gentleman who has been through an extremely long legal process.

MR JUSTICE COLLINS: I sympathise but --

[81]MR BEGGS: It is perhaps not entirely surprising that when faced -- there is no dispute that he is permanently disabled, he has a psychological illness. Indeed so serious that he is unable to appear today. He does not have the wherewithal to appear today.

MR JUSTICE COLLINS: I do understand, but on the other hand he does have advisers.

[83]MR BEGGS: Yes, he does, that is perfectly true and his advisers gave certain advice and we are here now today.

MR JUSTICE COLLINS: Is he in fact supported by anyone?

[85]MR BEGGS: I am sorry?

MR JUSTICE COLLINS: Is he supported by the Federation?

[87]MR BEGGS: I do not actually know the answer to that myself, what I can --

MR JUSTICE COLLINS: There are some nods behind you.

[89]MR BEGGS: The Federation inspector tells me he is, yes. Can I take you to two points in fact in relation to the question of costs. First of all, reference is made to the amount of contact that my solicitor had with Dr Cooling. Can I tell you that the vast majority of those contacts was trying to elicit the position that Dr Cooling was taking, because it took us some considerable time, because he was busy, to discover whether he was opposing the claim or not.[90]MR JUSTICE COLLINS: In a sense that is nothing to the point, because Dr Cooling cannot be expected to know what the legal arguments point to. He is not a lawyer, he is a doctor.[91]MR BEGGS: No, I entirely accept that. However, had, for example, Dr Cooling instructed lawyers to defend his position then we may have taken a different position.[92]MR JUSTICE COLLINS: I do not see why. Surely you could simply tell Dr Cooling, if you accepted that he got it wrong in law, "Unfortunately, Dr Cooling, we are afraid that we cannot argue in support of this because as a matter of law your position is indefensible." Now if he had gone ahead then, and you had not appeared, he would have been at real risk as to costs, but I do not think you can put the onus on him. As I say, he is not a lawyer, he is a doctor.[93]MR BEGGS: I am not seeking to put the onus on him, I am just explaining why -- there was a suggestion made that we had had a lot of contact with him. The reason was we were simply --[94]MR JUSTICE COLLINS: Well, yes. As I have said earlier, I think he was mistaken to -- what he should have done is say, "I am afraid I cannot involve myself on the factual side any further on this because that is not what I am for." Presumably Mr French has his own doctors who are treating him as a patient, at least I imagine so, and Dr Cooling is not involved in that side of things. But that is hindsight and hindsight always makes things a lot clearer.[95]MR BEGGS: My Lord, in answer to that: have we, as the interested party, lost the position? The answer is of course, "yes", because the award that would have been made subject to judicial review would --

MR JUSTICE COLLINS: Well, it depends whether you wish --

[97]MR BEGGS: Yes, subject to further application. The question really there, therefore, is whether you consider it in your discretion fair to --

MR JUSTICE COLLINS: It is the normal result, is it not, that the loser pays?

[99]MR BEGGS: I accept that, but I suggest there is a couple of reasons why this is not completely normal. It is not completely normal because there was a degree of uncertainty on our part of the stance being taken by the doctor. That is perhaps a secondary point. It is not completely normal because the officer in question has been subject to an extraordinary barrage of legal proceedings. But can I say I do not accept that one can entirely exonerate or take Sussex Police Authority out of that, because they were the people responsible for many years --

MR JUSTICE COLLINS: But how is that relevant to these proceedings?

[101]MR BEGGS: It is only relevant if you are prepared to give him a degree of indulgence given the position he finds himself in 6 and a bit years --[102]MR JUSTICE COLLINS: Mr Beggs, as I say, I am very sympathetic, but unfortunately I cannot stick a palm tree above me, can I? I have to apply the accepted principles.[103]MR BEGGS: Yes. Well, can I help with this position, if costs were to be awarded and we were to pay costs -- we certainly should not pay for all of the costs because, as you indicated earlier on, this would not have gone through on the nod. There would have been some costs incurred. There was a certain reducible amount of costs on the part of the claimant that we should not have to bear, that seems common sense and obvious. If your Lordship was of the view, however, that we should bear the costs, however necessitated by responding to our response, then if you are against me --[104]MR JUSTICE COLLINS: Well, certainly you must pay those. There is no question about that.[105]MR BEGGS: Yes.[106]MR JUSTICE COLLINS: The extra costs incurred by the -- I have no hesitation in saying that you must be responsible for those.[107]MR BEGGS: If it is restricted to that then there has to be an assessment to distinguish between two sets of costs. Can I say that most of Ms Powell's argument today was the general position directed as to Dr Cooling's finding.

MR JUSTICE COLLINS: I know, but you were trying to support those findings, were you not?

[109]MR BEGGS: Yes, and I accepted that, but she would have had to make that argument at some stage in any event. I appreciate it would not have taken as long. I do not think actually the --[110]MR JUSTICE COLLINS: No, because if you had thrown your hand in and told Dr Cooling, and explained to Dr Cooling, then I do not doubt that he would have followed your advice, and if he had not then he would have had to pay.[111]MR BEGGS: Well, on that point, I am -- without giving evidence -- I am able to say that that is not right, because Dr Cooling's position has been stalwart in defending the position.[112]MR JUSTICE COLLINS: Yes, but if you had told him, "You are on your own mate", putting it crudely, then he would have -- I would almost certainly have awarded costs against him, but that was not the position.[113]MR BEGGS: Well, I am accepting you are going to award some costs against us, but I am saying --

MR JUSTICE COLLINS: You are saying it should not be all?

[115]MR BEGGS: It certainly should not be all, because Dr Cooling would have attended today whatever we said.

MR JUSTICE COLLINS: Not necessarily so.

[117]MR BEGGS: Well, everything I have seen, without --

MR JUSTICE COLLINS: He might have decided to take some advice.

[119]MR BEGGS: We were urging him to take advice some time ago.

MR JUSTICE COLLINS: Maybe.

[121]MR BEGGS: And we were, as a matter of record, in both letter and telephone calls --

MR JUSTICE COLLINS: I do not doubt you were, but, as I say --

[123]MR BEGGS: Today's hearing would have occurred in any event.

MR JUSTICE COLLINS: Maybe, maybe not.

[125]MR BEGGS: I would invite you to say it is difficult to say it would not have occurred and to the extent that there is uncertainty, that should be left to the --[126]MR JUSTICE COLLINS: There are such things as consent orders. All right, there would have been costs in actually taking the proceedings, but I very much doubt if any order would have been made in relation to those. I would be surprised if the claimant had even asked for them.[127]MR BEGGS: My Lord, I do not think -- I accept we caused the claimant to incur additional costs. I certainly do not accept, and it would have to be a matter of proper assessment based on evidence rather than speculation, I do not accept for one moment that he would not have been here today. On everything I have seen this hearing would still have taken place --[128]MR JUSTICE COLLINS: I repeat, if that had happened and Dr Cooling had -- you had made clear to him that he was on his own, then he indeed would have been at risk. I do not think he would have felt that it was unfair if he, in those circumstances, were made to pay costs. He might not have liked it, but I think he would have found it difficult to regard it as unfair.[129]MR BEGGS: I think the point we are making is that whatever we did would not have influenced his attendance.

MR JUSTICE COLLINS: Maybe, maybe not.

[131]MR BEGGS: Can I suggest that would be subject to the assessment. It should not be the subject of speculation because it has made the costs --[132]MR JUSTICE COLLINS: I do not think it makes any difference, frankly, because as I say, if he had attended, you advising that you thought he would not be able to do it properly, the claimants would have got their costs from him.[133]MR BEGGS: Yes, they would have got the element that I am saying we should pay.[134]MR JUSTICE COLLINS: Maybe, maybe. I see the argument.[135]MS POWELL: My Lord, I accept, of course, that we would always have had to have drafted the claim for judicial review, but I would submit our costs of everything from then should be paid, because it is inconceivable, in my submission, and, of course, I have been watching Dr Cooling as Mr Beggs has been making his submissions, and I am sure your Lordship has as well, but it is inconceivable that if Mr French had said, "Dr Cooling, thank you for your support, I appreciate what you are trying to do for me, but my advisers tell me you have made a mistake in law, and so please could you consent so that I can refer this to another doctor and get on with it," it is inconceivable that Dr Cooling would have continued to resist these applications.

MR JUSTICE COLLINS: I would like to hope so.

[137]MS POWELL: He is a very experienced practitioner in his field and it would have been extraordinary because it could only have delayed Mr French's claim. The reason we are here --[138]MR JUSTICE COLLINS: I think, Ms Powell, that you are right to accept that you should not have the costs of instituting these proceedings.[139]MS POWELL: We would not have sought those had there been a consent order.[140]MR JUSTICE COLLINS: But it seems to me that it is right that you should have the costs from Mr French incurred after the lodging of acknowledgments of service.[141]MS POWELL: I am grateful.

MR JUSTICE COLLINS: That will be the subject of detailed assessment if not agreed in the normal way.

[143]MS POWELL: Yes, my Lord, I am grateful for that.

MR JUSTICE COLLINS: Anything else? No.

Cited in 3 later judgments