“For the avoidance of doubt it is the defendant’s case that: (a) The Claimant has been fundamentally dishonest because he has intentionally alleged facts that he knows to be untrue. (b) The Court should dismiss the entire claim pursuant tos.57 Criminal Justice and Courts Act 2015 . (c) If the claim is dismissedCPR 44.16 (1) applies.”
“JUDGE BROWN: This is my ruling on the issues of fundamental dishonesty and the damages enquiry. In the light of the findings of the jury, in answer to the questions that they were asked, answers with which I entirely agree and which should be read alongside this ruling, I find, on the balance of probabilities, that the Claimant lied about each matter on which the burden of proof rested on him. I make that finding having had the opportunity to see and hear Mr Reynolds give his evidence. In each case there was no scope for Mr Reynolds merely to have been mistaken. The only explanation for the account that he gave in each case was that he deliberately chose to lie about the matter and I find, on the balance of probabilities, that he lied in the following respects: a) his allegation that he was thrown to the ground by officers next to his father’s car on the driveway, striking his head on the car, twisting as he fell and smashing his face onto the ground. b) his allegation that he was dragged along the ground from the driveway to the road with his face making contact with the ground. c) his allegation that a police officer knelt on his neck whilst he was on the ground. d) his allegation that PC Bibi punched him multiple times to the side of his head or ear whilst he was on the ground. e) the allegation that PC Brooks kicked him whilst he was on the ground. f) his allegation that a police officer brought their knee down onto his back whilst he was on the ground. I also find that he lied about the following matters where the burden of proof was on Kent Police. Again, in my judgment, on the balance of probabilities, there is no scope for Mr Reynolds to have advanced the case that he did otherwise than because he was deliberately lying about these matters. Thus I also find that he lied in the following respects: a) that he was not behaving aggressively after the purported arrest. b) that he did not bite PC Bibi on the right thigh. c) that he did not kick PC Brooks to the shin. d) that he did not deliberately refuse to place his legs in the police van. e) that he was not deliberately and unnecessarily spitting in the police van on the journey to and upon arrival at the police station. f) that he was not behaving aggressively when he arrived at the police station. So far as the words used when he was arrested are concerned, it is theoretically possible that Mr Reynolds genuinely did not recall exactly what he was told by PC Bibi when he purported to arrest him. However, taking the evidence as a whole, including what I find to have been Mr Reynolds’ plan to give a false account that would form the basis of him making a claim against Kent Police if he could, and to be totally unconcerned about telling barefaced lies, I find, on the balance of probabilities, that his account about what was said was also a deliberate lie by him. Finally, I find that the Claimant deliberately lied about when he started to experience pain in his back. I find that the accounts that he gave at different times were given because he thought that they would support his case that his lumbar vertebra was fractured by the use of force by Kent Police, even though he knew that he had not started to experience pain in his back until the journey to Tonbridge Police Station, or upon his arrival there. His original account was of experiencing pain in his back when he was being, on his account, assaulted by police officers when he was restrained on the ground. However, his medical expert made it clear that the nature of his injury was not consistent with that mechanism. I find that he then lied at trial when he said that the pain started after he was arrested and when he was thrown to the ground and he twisted. That last word had never been used by him before, and it was, I find, on the balance of probabilities, an attempt by him deliberately to fit his evidence to the medical expert’s opinion on the likely mechanism of the injury he sustained. Thus I find that the Claimant has deliberately lied about all matters material to his claims, whether successful or unsuccessful. His successful claim only succeeds because as a matter of law I have found that, even on the officers’ accounts that the jury accepted, what he was told on arrest was insufficient. Although he has genuinely suffered a fracture to his lumbar vertebra at some point prior to his arrival to the police station, and I will return to that, and other very minor superficial injuries such as grazes, I find that his claim was fundamentally dishonest within the meaning ofsection 57 of the Criminal Justice and Courts Act 2015 . Further, in the circumstances of this case, given the nature of the false allegations that the jury have found were made against police officers, in the sense that they have rejected the Claimant’s account, and I have found that they were based on deliberate untruths, and the fact that this trial would have been much shorter had it been limited to the claim for false imprisonment, I do not find that the dismissal of all of the claims, including that that based on unlawful arrest would cause a substantial injustice to Mr Reynolds. On the contrary. This is exactly the kind of case that in my judgment Parliament had in mind when section 57 was introduced. I therefore direct that he should receive no damages at all and his claim should be dismissed. However, I nonetheless need to set out the damages that he would otherwise have been awarded. In this case that means asking questions of the jury to establish the appropriate level of damages. In my judgment, no reasonable jury, properly directed, could find that the back fracture was caused in the factual scenarios assumed by the medical expert, because on the jury’s findings there was no occasion on which the Claimant was thrown to the ground in an uncontrolled way so as to cause his body to move in the way necessary for such a fracture to be caused. On the jury’s findings, nothing that happened before the Claimant was placed in the police van can have caused his back injury. The jury found that the Claimant was spitting in the way described by the police officers, and that he was behaving in an aggressive manner when he arrived at the police station. In those circumstance[s], given the weight of the supporting evidence, including the evidence of the neighbour about the noises that she heard from the van, no reasonable jury, properly directed, could find anything other than that Mr Reynolds was exerting force during the journey by kicking the side of the van repeatedly, and that he was in a position that exerting force in that way could have resulted in the circumstances that were contemplated by the medical expert as being the mechanism for the causation of the lumbar fracture. Although it could be said that he would not have been in the van at all had he not been unlawfully arrested, in my judgment, that does not mean that the back fracture was caused by the unlawful arrest. It merely gave the opportunity for Mr Reynolds to be in the position that he was and to act in the way that he chose to do. It could be said also that the decision of Mr Reynolds to exert such force as he must have done in kicking the police van repeatedly so as to cause a lumbar fracture acted as a break in the chain of causation. I therefore find that a reasonable jury, properly directed, could not conclude that the back fracture and its consequences were caused by the unlawful arrest. Further, even though he was technically unlawfully detained by police officers, Mr Reynolds was only entitled to use reasonable force in response. In my judgment that does not mean that a person unlawfully detained has the right to use any degree of force they choose against the police officers detaining him. In this case Mr Reynolds had the alternative course of action available to him of talking calmly to the police officers and asking what he was alleged to have done, and where there is an opportunity for someone to do something other than using violence or force then that is a material consideration in considering whether the force that they do use is lawful. Further, and more importantly, it would have meant that there would have been no reason for him to suffer any injury or for officers to use more than a low level of force on him if he had acted in that way. In particular, I do not consider that the biting of PC Bibi or the kicking of PC Brooks could or did amount to the use of reasonable force. In the case of the biting that was a use of force that had the potential to cause serious injury, and it was plainly, in my judgment, disproportionate to the situation in which Mr Reynolds found himself. Further, the kick to PC Brooks was, in the circumstances, not an attempt to free himself, but the use of gratuitous violence towards her. Neither constituted the reasonable use of force by Mr Reynolds. So far as the damages the claimant would be entitled but for my finding of fundamental dishonesty are concerned, although he was unlawfully detained for a period from 2.25pm on the20 December 2015 , until about 6.30pm on26 December 2015 , that period was extended because of his admission to hospital as a result firstly of his complaint of blood in his urine, although that was ultimately not found to be correct when the hospital investigated, and then because of the discovery of the injury to his back. He appears to have contracted MRSA whilst in hospital and that prolonged his stay still further. I have found that the back injury was not itself caused by the false imprisonment. Although he was under police guard in hospital, in reality he could not leave because of his health conditions. In those circumstances, in my judgment, the appropriate bracket for damages for the period of the unlawful detention should primarily reflect only the period from when he was arrested until he was taken to hospital and then from his return to hospital until 6.30pm on the same day. However, that figure should be modestly increased to reflect the period of five or so days when he was in hospital and when he was under police guard. The period of which damages should be assessed, leaving out the period in hospital, would be a period of substantially less than 24 hours, namely one of 12 hours and 33 minutes. I remind myself that the case of Thompson & Hsu v Commissioner of Police of the Metropolis[1998] QB 498 , the guideline case on damages for cases of this kind, when one updates the figures, would give a figure of£6,000 for 24 hours detention, and there is of course a sliding scale with higher sums for shorter periods initially and the figures tailing off. And I also take into account the point made by the defendant that the damages for somebody who is of clean character, who has never experienced an arrest or time in custody may be higher than those for somebody such as Mr Reynolds who has had experience of custody, including in the relatively recent past. Taking all matters into account, including the modest increase for the period spent in hospital in my judgment the appropriate bracket is one of£5,000 to£7,500 . So far as assaults by police officers are concerned, it is conceded by the defendant that the taking of his arm, leading him from the porch, and the use of handcuffs was unlawful. In my judgment, although it was open to Mr Reynolds to have simply gone quietly with officers, he was entitled to use reasonable force to resist the unlawful arrest, and in my judgment, although it is a borderline case because of the words he was using and his physical posturing, he did not cross the line before he was restrained, and his use of what I judge to be reasonable force at that point led to him being restrained on the ground and as a result he suffered some minor bruises and grazes as documented by the forensic nurse practitioner. I consider that the damages for assault should properly include damages for the restraint and the minor injuries sustained. Further, given that he had been unlawfully detained, and even though by this stage officers could have lawfully arrested him for assaulting the two police officers, albeit not in the execution of their duty, but nonetheless they were assaulted, Mr Reynolds was still entitled to be obstructive when the officers sought to place his feet in the van. Since the use of PAVA was to facilitate him being secured in the van at a time when he was not lawfully under arrest, I find that there was an unlawful use of force by PC Bibi at that time because of the fact that the Claimant was not lawfully arrested at that time. It follows that the damages for assault should include damages for the minor injuries suffered during the restraint, for the transient but unpleasant effects of being sprayed with PAVA, as well as the technical assaults by the placing on of hands, the application of handcuffs, and the restraint on the ground. Overall however, given the number and nature of the injuries but their very minor nature, and the lack of any long-lasting injury properly attributable to the false imprisonment, and considering the Judicial College Guidelines for minor injuries, and the fact that there is a tariff, as it were, for handcuffs which certainly historically was about£500 , I find that the appropriate bracket for damages for assault is£1,000 to£2,000 . I will deal with issues of costs following the jury’s conclusions on those issues. So, in the light of that, I will hand out the draft questions and let you read those.”
“(1)This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)— (a)the court finds that the claimant is entitled to damages in respect of the claim, but (b)on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim. (2)The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. (3)The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest. (4)The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim. (5)When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant. . . . (8)In this section— • “claim” includes a counter-claim and, accordingly, “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim; • “personal injury” includes any disease and any other impairment of a person's physical or mental condition; • “related claim” means a claim for damages in respect of personal injury which is made— (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim. . . . ”
“62. In my judgment, a Claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the Defendant proves on a balance of probabilities that the Claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8)), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the Defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation. Dishonesty is to be judged according to the test set out by the Supreme Court in Ivey v Genting Casinos Limited (t/a Crockfords Club) [[2017] 3 WLR 1212 ]. 63. By using the formulation ‘substantially affects’ I am intending to convey the same idea as the expressions ‘going to the root’ or ‘going to the heart’ of the claim. By potentially affecting the Defendant’s liability in a significant way ‘in the context of the particular facts and circumstances of the litigation’ I mean (for example) that a dishonest claim for special damages of£9000 in a claim worth£10000 in its entirety should be judged to significantly affect the Defendant’s interests, notwithstanding that the Defendant may be a multi- billion pound insurer to whom£9000 is a trivial sum. 64. Where an application is made by a Defendant for the dismissal of a claim under s 57 the court should: a. Firstly, consider whether the Claimant is entitled to damages in respect of the claim. If he concludes that the Claimant is not so entitled, that is the end of the matter, although the judge may have to go on to consider whether to disapply QOCS pursuant toCPR r 44.16 . b. If the judge concludes that the Claimant is entitled to damages, the judge must determine whether the Defendant has proved to the civil standard that the Claimant has been fundamentally dishonest in relation to the primary claim and/or a related claim in the sense that I have explained; c. If the judge is so satisfied then the judge must dismiss the claim including, by virtue of s 57(3), any element of the primary claim in respect of which the Claimant has not been dishonest unless, in accordance with s 57(2), the judge is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed. 65. Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the Claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s 57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that Claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s 57(3) if dishonest Claimants were able to retain their ‘honest’ damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.”
“i) the S.57 defence should be pleaded; ii) the burden of proof lies on the Defendant to the civil standard; iii) a finding of dishonesty by the Claimant is necessary; (A) firstly to find on the evidence as a fact what the Claimant’s state of mind was at the relevant time on the relevant matters; and (B) secondly to apply an objective standard to decide whether the Claimant’s conduct was dishonest as alleged. iv) as to the subject matter of the dishonesty, to be fundamental it must relate to a matter fundamental in the claim. Dishonesty relating to a matter incidental or collateral to the claim is not sufficient; v) as to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim.”
“i. The judge was wrong in law to find that the Claimant was fundamentally dishonest simply because the jury had preferred the police version of events over the Claimant’s version. ii. The judge was wrong to find that the Claimant’s evidence as to when he felt pain in his back was so strikingly different between his accounts as to amount to fundamental dishonesty, and bearing in mind: (a) that the Claimant had in fact sustained a fractured back and (b) that the means by which he received that injury has not been found as a matter of fact by the jury. iii. The judge was wrong in law to find that any dishonesty in relation to the cause of the Claimant’s broken back or the use of force against him was fundamental to the claim of false imprisonment, which arose from a failure of police to sufficiently inform the Claimant of the grounds for his arrest. iv. The Claimant did not have sufficient notification of the basis upon which the Defendant contended that the Claimant was guilty of fundamental dishonesty. v. The judge failed properly to consider that the Claimant’s claim involved an injury sustained while in police/ state custody, which engagesArticle 3 ECHR and where the law requires that the detainer provides a plausible explanation as to how such injuries have been caused, and where the Claimant has to have an effective right of access to the court to pursue his claim. Furthermore, in this particular claim, the deterrence to the Claimant’s right of access to the court that the consequences of a finding of fundamental dishonesty entail breachArticle 6 ECHR . vi. The judge was wrong to find that the Claimant would not suffer substantial injustice by dismissing his claim unders.57 of the Courts and Criminal Justice Act 2015 . vii. The judge was wrong in law to find that the Claimant was only entitled to damages for 5 hours imprisonment (covering the period he was in the police station) when in fact he had been falsely imprisoned for six days including his hospital stay under arrest and at no time had the Defendant remedied its failure to comply with the law. viii. The judge was wrong in law to find that it was not reasonable for the Claimant to attempt to bite / bite / kick in an effort to escape from this false imprisonment and her finding that he was limited merely to asking politely what he was being arrested for cannot stand, for reasons that include: (a) the breadth of force permitted in reasonable self- defence and (b) the circumstances in which the Claimant was detained, including that the Claimant was immediately pulled out of his porch and handcuffed to the rear upon arrest.”
“Q. . . . She drops onto your back? A. Yes. Q. With her knee? A. Yes. Q. OK. Now, I want to be absolutely clear about this, is it your evidence that from that moment on your back was in agony? A. No. It was in agony before that. Q. Right. So let us clarify that. From what point? Your back was not in agony when you went to answer the door? A. No, nothing wrong with it. Q. All right. At what point did your back become in agony?? A. When I was taken to the floor at the back of my dad’s car, I was twisted and thrown down onto the floor. Q. Right. So now it is twisted. Not just thrown down. A. No. Q. It was twisted? A. It was twisted. I was twisted and thrown to the floor. Q. OK. A. Yes. Q. OK. You see, I read and listened to various accounts --- A. OK. Q. --- that you have given, I do not remember you ever using the word you were twisted as you were thrown to the floor. A. Well, I was. Q. You just made that up for the first time now? A. No. It was actually used in court before that I was twisted and thrown to the floor. Q. I am interested in what you have said in your statement. A. Well, OK. I forgot to put I was twisted. I do apologise. But I was twisted and thrown to the floor. Q. Right. So you are saying that is the point at which your back was injured during this incident? A. It hurt, yes. . . . Q. . . You are saying, then, from that moment on, so before you are dragged across the drive, your back is in agony? A. Yes”