Andrew Breeze & Anor v Chief Constable of Norfolk Constabulary [2026] EWHC 1937 (KB)

[2026] EWHC 1937 (KB)

Case No QB-2016-004564

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

KINGS BENCH CIVIL

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/07/2026

Before

MR JUSTICE COTTER

Between

(1) ANDREW BREEZEClaimants

(2) DOMINIC WILSONClaimant

CHIEF CONSTABLE OF NORFOLK CONSTABULARYDefendant

Anthony Metzer KC and Una Morris (instructed by Hatch Brenner Plc) for Claimants

Charlotte Ventham KC (instructed by Weightmans LLP) for Defendant

Hearing Hearing dates: 27th April 2026

Approved Judgment

This judgment was handed down remotely at 2pm on 28 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

MR JUSTICE COTTER

Introduction

[1]This judgment concerns costs issues following the 12 day trial of the liability issues within a claim for malicious prosecution and misfeasance in public office brought by the Claimants in respect of a (discontinued) prosecution on a charge of conspiracy to defraud.

[2]It is unfortunate that it has taken so long to list this hearing. Judgment was handed down on 17th October 2025. The costs hearing was originally listed in December 2025 but the parties could not make the date. It has proved difficult to re-list.

[3]I need not set out the facts of the underlying claim in detail as they are contained within my judgment which dismissed the claim. The case concerned a failed fraud prosecution alleging conspiracy to defraud certain Primary Care Trusts between 1st February 2004 and 30th September 2006. The case was discontinued some seven weeks into a trial now seventeen years ago. There were 20,000 documents disclosed by the police in the criminal case and 83 witness statements. The criminal trial followed a very lengthy criminal investigation into events now twenty years ago.

[4]Within proceedings issued in March 2015, the Claimants alleged that they were prosecuted by the Defendant (as opposed to the Crown Prosecution Service (“CPS”)), that there was no reasonable and probable cause for their prosecution and that the prosecution was malicious. Further or alternatively, they contended that the Defendant's conduct of the investigation and prosecution involved an abuse of public power calculated to cause them loss/damage.

[5]The liability issues raised within the pleadings i.e. in support of the claim of malicious prosecution and misfeasance in public office were very wide ranging. The pleadings were extensive and there were 29 witness statements which descended into considerable detail including through cross-referencing to documents within a bundle which by the end of trial ran to well over 9,000 pages.

[6]The Claimants alleged that the investigation was improperly conducted and that, and the manner in which evidence was presented to the CPS, caused them to be maliciously prosecuted. In particular, it was the Claimants’ case that the Defendant's officers failed to take account of, and/or give proper consideration to, important evidence, suppressed evidence and changed and manipulated evidence. It was the Claimants' case that the Defendant's officers acted with malice. Further, that the Defendant (by his officers) knew that there was no evidence, or no sufficient evidence that the Claimants had committed the offences with which they were charged but nevertheless proceeded to instigate a prosecution against them.

[7]Given the breadth of the issues covered in the Claimants’ pleading and evidence at the outset of my judgment it was necessary to point out that the trial had not been a public inquiry to investigate all aspects of the failed prosecution; rather it has been a determination of the two causes of action alleged by the Claimants.

[8]The Claimants' case involved an attack on the mindset and general approach of the investigating officers, as well as reliance on a series of specific acts and omissions, which they argued, demonstrated an absence of reasonable and probable cause and malice.

[9]During his oral opening Mr Metzer KC confirmed that it was the Claimants' case that the officers who were instrumental in the progression of the police investigation, produced a deliberately misleading and "slanted" case summary to the CPS, and did not believe that the Claimants were guilty of fraud. They had subjective belief in the Claimants' innocence but wanted to achieve a conviction. The CPS were given an intentionally distorted and inadequate picture and had they received a balanced and fair picture "it would have gone the other way" i.e. there would not have been a prosecution.

[10]It was the Defendant's case that the police were not the prosecutor (the decision to charge having been made by the CPS) and that in any event there was a proper case to prosecute and the Defendant’s officers acted at all times with good faith and to achieve the proper furtherance of justice. It was argued that the Claimants had failed to advance a credible case that the police acted in bad faith in the conduct of the investigation/prosecution, and/or that they effectively subverted the independent decision-making role of the CPS. Specifically, the Claimants' evidence failed to establish any specific piece of evidence/information that was knowingly concealed/suppressed by the police (still less did they establish that any such evidence/information would have materially affected the CPS' decision to prosecute).

[11]It is necessary to read the judgment to understand the detail, but as an overview it is an accurate assessment that the Claimants lost comprehensively.

Issue

[12]It is not in dispute that the Defendant is entitled to a costs order as this follows the general principle that costs follow the event.

[13]The issue that remains for me to determine is whether the Defendant is entitled to costs on an indemnity basis from 21st December 2024 onwards following a letter of 25th November 2024 which stated; “The defendant invites the claimants to discontinue their claim. It is plain from the witness statements served by the claimants that their case is built on opinions and impressions rather than any actual evidence which establishes either of the pleaded causes of action. We put the claimants on notice that in the event that the claim is not discontinued by 4:00pm on Friday 20 December 2024, the defendant will seek his costs on the indemnity basis from that time forward. We trust that you will bring this letter to the attention of your clients’ after-the-event insurer.”

[14]It is not argued that the letter constituted an offer of any form; rather it was a warning that the Defendant would argue that continued pursuit of the claim as set out in the pleadings was unreasonable.

Law

[15]CPR 44.3 provides that; (1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs – (a) on the standard basis; or (b) on the indemnity basis, but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount. And (3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

[16]The standard basis, as the name suggests, is the normal basis of assessment which means that there has to be something about an action which takes it outside the norm before it would be appropriate for the court to award costs on the indemnity basis.

[17]As set out in Cook on Costs traditionally costs on the indemnity basis have only been awarded where there has been some culpability or abuse of process such as: a) deceit or underhandedness by a party; b) abuse of the court's procedure; c) failure to come to court with open hands; d) the making of tenuous and speculative claims; e) reliance on utterly unjustified defences; f) the introduction and reliance upon voluminous and unnecessary evidence; g) extraneous motives for the litigation h) discontinuance without explanation where allegations of serious dishonesty and fraud have been made.

[18]In Three Rivers DC v Bank of England

[2006] EWHC 816 (Comm)

following a trial which had lasted 256 days before the Claimants discontinued, Tomlinson J (as he then was) identified the following principles (at [25]):

“(1) The court should have regard to all the circumstances of the case and the discretion to award indemnity costs is extremely wide. (2) The critical requirement before an indemnity order can be made in the successful defendant's favour is that there must be some conduct or some circumstance which takes the case out of the norm. (3) Insofar as the conduct of the unsuccessful claimant is relied on as a ground for ordering indemnity costs, the test is not conduct attracting moral condemnation, which is an a fortiori ground, but rather unreasonableness. (4) The court can and should have regard to the conduct of an unsuccessful claimant during the proceedings, both before and during the trial, as well as whether it was reasonable for the claimant to raise and pursue particular allegations and the manner in which the claimant pursued its case and its allegations. (5) Where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails. (6) A fortiori, where the claim includes allegations of dishonesty, let alone allegations of conduct meriting an award to the claimant of exemplary damages, and those allegations are pursued aggressively inter alia by hostile cross examination. (7) Where the unsuccessful allegations are the subject of extensive publicity, especially where it has been courted by the unsuccessful claimant, that is a further ground. (8) The following circumstances take a case out of the norm and justify an order for indemnity costs, particularly when taken in combination with the fact that a defendant has discontinued only at a very late stage in proceedings; (a) Where the claimant advances and aggressively pursues serious and wide ranging allegations of dishonesty or impropriety over an extended period of time; (b) Where the claimant advances and aggressively pursues such allegations, despite the lack of any foundation in the documentary evidence for those allegations, and maintains the allegations, without apology, to the bitter end; (c) Where the claimant actively seeks to court publicity for its serious allegations both before and during the trial in the international, national and local media; (d) Where the claimant, by its conduct, turns a case into an unprecedented factual enquiry by the pursuit of an unjustified case; (e) Where the claimant pursues a claim which is, to put it most charitably, thin and, in some respects, far-fetched; (f) Where the claimant pursues a claim which is irreconcilable with the contemporaneous documents; (g) Where a claimant commences and pursues large-scale and expensive litigation in circumstances calculated to exert commercial pressure on a defendant, and during the course of the trial of the action, the claimant resorts to advancing a constantly changing case in order to justify the allegations which it has made, only then to suffer a resounding defeat.” (a) Where the claimant advances and aggressively pursues serious and wide ranging allegations of dishonesty or impropriety over an extended period of time; (b) Where the claimant advances and aggressively pursues such allegations, despite the lack of any foundation in the documentary evidence for those allegations, and maintains the allegations, without apology, to the bitter end; (c) Where the claimant actively seeks to court publicity for its serious allegations both before and during the trial in the international, national and local media; (d) Where the claimant, by its conduct, turns a case into an unprecedented factual enquiry by the pursuit of an unjustified case; (e) Where the claimant pursues a claim which is, to put it most charitably, thin and, in some respects, far-fetched; (f) Where the claimant pursues a claim which is irreconcilable with the contemporaneous documents; (g) Where a claimant commences and pursues large-scale and expensive litigation in circumstances calculated to exert commercial pressure on a defendant, and during the course of the trial of the action, the claimant resorts to advancing a constantly changing case in order to justify the allegations which it has made, only then to suffer a resounding defeat.”

[19]In National Westminster Bank plc v Rabobank Nederland

[2007] EWHC 1742 (Comm)

Mr Justice Colman had presided over a trial which lasted 52 days. He gave judgment on the claim and dismissed the counterclaim. The Claimant sought an order for indemnity costs in relation to defending the counterclaim. Coleman J reviewed Tomlinson J’s outline of the relevant principles (and earlier authorities) and stated; “28. Where one is dealing with the losing party's conduct, the minimum nature of that conduct required to engage the court's discretion would seem, except in very rare cases, to be a significant level of unreasonableness or otherwise inappropriate conduct in its widest sense in relation to that party's pre-litigation dealings with the winning party or in relation to the commencement or conduct of the litigation itself. It is important to distinguish in Tomlinson J's formulation of relevant considerations between that underlying concept and his identification of examples of more specific patterns of conduct capable of rendering a party's overall conduct relevantly unreasonable or inappropriate. Grounds (4) to (8) inclusive are specific examples of conduct which, taken alone, or in combination, may in all the surrounding circumstances often be capable of giving rise to a conclusion that the losing party's conduct has been so unreasonable or inappropriate overall as to justify an order which gives him a more effective costs indemnity than would be the case under the standard order. But in each case in which the costs of the whole litigation are under consideration, the conduct adversely criticised must be looked at in the context of the entire litigation and a view taken as to whether the level of unreasonableness or inappropriateness is in all the circumstances high enough to engage such an order. ….” And “29. Finally, I would refer to observations of Christopher Clarke J in Balmoral Group Ltd v. Borealis (UK) Ltd

[2006] EWHC 2531 (Comm)

, in which, having adopted Tomlinson J's summary, he said this:

“The discretion is a wide one to be determined in the light of all the circumstances of the case. To award costs against an unsuccessful party on an indemnity scale is a departure from the norm. There must, therefore, be something — whether it be the conduct of the claimant or the circumstances of the case — which takes the case outside the norm. It is not necessary that the claimant should be guilty of dishonesty or moral blame. Unreasonableness in the conduct of the proceedings and the raising of particular allegation, or in the manner of raising them may suffice. So may the pursuit of a speculative claim involving a high risk of failure or the making of allegations of dishonesty that turn out to be misconceived, or the conduct of an extensive publicity campaign designed to drive the other party to settlement. The making of a grossly exaggerated claim may also be a ground for indemnity costs.” 30. Here again, it is important not to lose sight of the essential requirement of unreasonable or inappropriate conduct overall and not to treat examples of such which may amount to such conduct as necessarily constituting it.” “The discretion is a wide one to be determined in the light of all the circumstances of the case. To award costs against an unsuccessful party on an indemnity scale is a departure from the norm. There must, therefore, be something — whether it be the conduct of the claimant or the circumstances of the case — which takes the case outside the norm. It is not necessary that the claimant should be guilty of dishonesty or moral blame. Unreasonableness in the conduct of the proceedings and the raising of particular allegation, or in the manner of raising them may suffice. So may the pursuit of a speculative claim involving a high risk of failure or the making of allegations of dishonesty that turn out to be misconceived, or the conduct of an extensive publicity campaign designed to drive the other party to settlement. The making of a grossly exaggerated claim may also be a ground for indemnity costs.”

[20]By this application the Defendant does not seek an indemnity order in respect of the whole of the action. That does not mean that it is accepted that the conduct throughout did not warrant it; rather the application has been restricted to the a fortiori position after the letter of warning. Essentially the cost of trial preparation and the trial (which commenced on 21st March 2025).

Defendant’s submissions

[21]It is the Defendant's submission that there were a number of features which took the case out of the norm even by the standards of actions for malicious prosecution and misfeasance in public office and that they fall squarely into Tomlinson J’s examples of factors which will merit indemnity costs:a. Serious and wide-ranging allegations of dishonesty were made against the police officers, in particular DS Brownsell and DC Baker, in respect of conduct over an extended period of time;

b. Egregious allegations of dishonesty were made and put in cross-examination without any evidential foundation at all, including: i. The allegations of tampering with Dr Barker’s evidence, by failing to include the details of patients in it, when it was manifest that the police had indeed compiled a statement for him containing those details, but he refused to sign it. The court observed that: “the allegation was fanciful and (the First Claimant’s) refusal to accept what was obviously an accurate rationale within the statement speaks volumes of the extent to which he will find a way of attacking the police conduct of the inquiry, however unreasonably”; ii. An allegation that there was a further witness statement from Dr Barker which had been suppressed by the police, which the Claimants’ counsel conceded did not have an evidential basis iii. The serious allegation that DS Brownsell suborned the evidence of Linda Todd. None of these allegations were even pleaded. Attempts were made to ambush DS Brownsell with them during the trial.

c. Claims were pursued which were obviously irreconcilable with the contemporaneous documents, including: i. That Mr Chancellor had been intimidated and oppressed by DC Baker during his (recorded) police interview. ii. That DC Baker and DC Flynn had caused Mr Bull and LDC to dismiss the Claimants from their employment during their interview of him, when the transcript clearly demonstrated the contrary; iii. That DS Baker and DC Flynn had taken no interest in what Mr Ward had to say during his interview; iv. That Mr Cooper’s interview had been conducted improperly. Having reviewed the contemporaneous evidence, the Court observed of Mr Cooper’s evidence that: “Given these matters it is very difficult to see how the statement in this action came to be signed and presented to the Court as his evidence. He joins Mr Chancellor, Mr Ward and Mr Bull as witnesses whose statements for this action give some cause for concern”;

d. Claims that that the (signed) police witness statements of the above (and other) witnesses had been drafted by police officers so as to distort and misrepresent what they had said during their recorded interviews were manifestly contradicted by the recordings and transcripts of those recordings, produced by the Claimants’ own solicitors in the criminal proceedings;

e. Scandalous, irrelevant comments about a senior officer were made (and relied upon by the Claimants during the trial), in the witness statement of Mr Adcock.

f. Other witness evidence was called which could not conceivably advance the claims of malicious prosecution/misfeasance in public office as pleaded, such as the evidence concerning the restraint proceedings and evidence concerning the City Club.

g. It was alleged that a central document, the Case Summary, was deliberately and maliciously slanted, an argument which was maintained to the conclusion of the trial, yet the author of the document (DS Brownsell) was not cross-examined on it save on one relatively minor aspect.

h. The claim was advanced on a contradictory and incoherent basis. It was the Claimants’ case in opening and throughout the proceedings that the investigating officers did not honestly believe in their guilt, yet their case at trial was advanced on the basis that they believed the Claimants to be guilty and had a closed mind about it (i.e. a closed mind to innocence).

i. What were in truth allegations of negligence/unprofessionalism were pursued as allegations of dishonesty.

j. Misconceived allegations were advanced e.g. i. That the police “tampered” with witness evidence ii. That DC Baker had sought to suppress a “clarifying” statement from Mr Chancellor just before the crown court trial; iii. That Mr Cooper’s account in interview should have put an end to the police investigation; iv. That it was not necessary for the officers to interview Mr Ward given he had provided a statement to the defence vi. That the investigation should have been abandoned at the outset on the basis that Mr Deveney had probably fabricated the allegations

[22]Summing matters up Ms Ventham KC submitted that the claim that the investigating officers had acted maliciously was not just weak but was obviously hopeless and should have been recognised as such. There were also a myriad of hopeless or misconceived allegations which were pursued with no adequate evidence to support them.

Claimant’s submissions

[23]Within their written and oral submissions Mr Metzer KC and Ms Morris raised a number of points in response to the application which I shall set out in turn. However the overriding argument was that there was nothing which took the case advanced “out of the norm” and the Defendant’s success was “simply a feature of an adversarial system in which judges must routinely make determinations as to success and loss, and in which their function is to hear the evidence, decide which evidence they prefer and make findings of fact, to determine whether or not the causes of action have been established, applying the law. In both causes of action, the Claimants bore the burden of proof and, as matters turned out, they have failed to prove their case against the Defendant.” Also allegations of dishonesty against the police officers are a necessary requirement of seeking to establish malicious prosecution and/or misfeasance in public office on the evidence, and therefore do not take this case beyond the norm, for cases of this kind.

[24]In respect of the specific matters identified by Ms Ventham KC, Mr Metzer KC and Ms Morris responded as follows:(a) DS Brownsell was aware that he would be asked questions about Dr Barker and Linda Todd, having referred to both of them in his witness statement for trial.

(b) The suggestion that claims were pursued which were obviously irreconcilable with contemporaneous documents is again a question of the assessment of the evidence given by witnesses, which is a feature of all trials, and the very purpose of cross-examination is to try to undermine the evidence of the opposing side’s witnesses. Again, the rejection of the Claimant’s case in certain respects does not take this case beyond the norm,

(c) The Claimants’ allegations that police officers had distorted and misrepresented what witnesses had said were always a key part of the Claimants’ case. They necessarily had to be fully explored at trial. The Defendant admitted a number of inconsistencies between what witnesses said to the police officers and their statements, for example, at paragraph 97 of the Claimant’s Re-Re-Amended Particulars of Claim [CB/18], which refers to what Mr Cooper said in interview about extra care being “a very good option”, which was not included in his witness statement, which the Defendant admitted at paragraph 213 of his Re-Amended Defence.

(d) At no time did the Defendant seek to have any aspect of Mr Adcock’s statement struck out as irrelevant or impermissible evidence for him to give. In fact, the Defendant agreed that Mr Adcock’s evidence could be read by the court in its entirety.

(e) As regards the Claimant’s witness evidence called about the restraint proceedings and the City Club, those issues were pleaded from the outset, and the Defendant himself chose to call evidence on the very same topics, albeit in response to the Claimants’ pleaded case.The witnesses at the City Club alleged that the Defendant’s officers were trying to smear the Claimants’ reputation amongst their peers, and to isolate them. In that regard, the impression that the officers were trying to give to those at the City Club was that the Claimants were guilty.

(f) The judgment stated that the “suggestion put to witnesses was that [the officers did not honestly believe in the Claimants’ guilt] because of the pressure they perceived they were under from senior officers to secure a conviction”. This contradicts the submission that “all of the police witnesses were explicitly challenged to the effect they had “a mindset of guilt” and/or that they regarded the Claimants as guilty”. The Claimants’ case was not “advanced on the basis that [the officers] believed the Claimants to be guilty”.

(g) As to the Defendant’s suggestion that allegations of negligence/unprofessionalism were pursued as allegations of dishonesty, he never sought to strike out the Claimant’s case or summary judgment on that basis.

(h) A finding that the Claimants’ case did not reach the requisite threshold for malice or bad faith does not take this case outside of the norm.

[25]The other issues raised in response to the application were as follows:

The Defendant’s conduct

[26]Mr Metzer KC submitted that the Defendant’s own conduct was relevant as to whether an order for indemnity costs ought to be made. He arguedthat the timeline which followed the 25 November 2024 letter should also be seen in the context of the Defendant’s prior disclosure failings, resulting in an unless order being made against him and the vacation of a trial date as confirmed by the order of Mr Justice Soole dated 1 February 2024.

[27]After 25 November 2024, the Defendant disclosed; a) The File Note of DS Jack Frost on 7th March 2025, this occurring after the trial bundle had been filed. b) A different version MG5 case summary, relating to the pre-charge period only, on 19th March 2025, which impacted on trial preparation. c) Twelve of DS Brownsell’s Pocket Notebooks on 20th March 2025, which also impacted on trial preparation. d) The audio of Mr Bull’s interview on 1st April 2025, after playing it during cross-examination, resulting in it needing to be considered prior to re-examination. Mr Metzer KC submitted that it would be unjust to award indemnity costs to the Defendant, when his own conduct as to disclosure of the “actualevidence” upon which the Claimants’ case was based has been demonstrably poor, to the extent that it resulted in the loss of the initial dates for trial and a substantial delay for all concerned.

Strikeout/summary judgment

[28]Mr Metzer KC submitted that the Defendant never chose to apply for strike out or summary judgment on the basis that the Claimants’ case was “built on opinions and impressions rather than any actual evidence”, despite making a successful applications in relation to parts of the Claimant’s case (relating to the loss of value of their shareholdings); see Breeze v Chief Constable of Norfolk Constabulary

[2022] EWHC 942 (QB)

Settlement

[29]The Defendant never made an offer to settle. Had the Defendant made the Claimants a genuine offer of settlement they may have accepted it. In a genuine attempt to settle the proceedings, the Claimants made Part 36 offers, including on liability only, including most recently on 06 February 2025 in the sum of £1.1 million for Mr Breeze and £1.1 million for Mr Wilson.

The Letter

[30]The Defendants’ letter of 24th November 2024 was no more than an invitation to discontinue, with no identifiable benefit to the Claimants, other than avoiding the Defendant making an application for indemnity costs in the future. This letter was not even typical and generic of many similar ‘drop-hands’ invitations to discontinue made by police forces up and down the country in these types of claim which propose that each party should bear its own costs.

Analysis

[31]The Claimants’ main submission is effectively, that the Defendant seeks indemnity costs simply for being the successful party and the Claimants’ conduct in pursuing the claim was not unreasonable or “out of the norm”.

[32]Before descending into the detail of the respective submissions, it is necessary to make the following four points.

[33]Firstly, to a degree a trial Judge’s analysis of whether a losing party's conduct has been so unreasonable or inappropriate overall as to justify an order of indemnity costs can be akin to describing an elephant. It can be difficult to do justice to the certainty that it is what it was without descending into great detail (and here in the process rehashing matters set out in the long, perhaps overly long, judgment on liability) as the determination of the issue is so highly fact specific. However all that is required is that the essential reasons are set out. Put another away if asked if you saw an elephant, it is not necessary to describe all the features at great length down to the tip of its tail.

[34]Secondly resolution of the issue is a paradigm of an exercise of discretion.

[35]Thirdly indemnity costs are only compensatory. They enable the receiving party to recover more of the costs which he/she has incurred than standard costs but never more (and usually less) than the actual incurred costs. Part of the rationale for awarding indemnity costs is that if the receiving party's costs have been increased because of unreasonable behaviour it is fair that there should be a recovery of an enhanced amount of his/her incurred costs.

[36]Fourthly to the extent that conduct said to support an order for indemnity costs is focussed on the making and continuing pursuit of specific allegations, they must be looked at in the context of the entire litigation as a whole and a view taken as to whether the level of unreasonableness or inappropriateness is, in all the circumstances, extensive enough to engage such an order. Care must be taken not to make an order with a disproportionate effect. However there is no need for a party when seeking an indemnity costs order to show that any particular conduct complained of has increased the costs to any specific degree. The question is the reasonableness or otherwise of the conduct and is not dependent upon whether the conduct, whether reasonable or unreasonable, increased the costs payable.

[37]In the present case the allegations were both serious and very wide ranging covering very many aspects of a complex investigation. Their determination resulted in a lengthy trial considering a very large volume of evidence. The Claimants lost. Such matters are not of themselves “out of the norm”.

[38]However the Defendant’s submission is that this case was very different to the norm because of the nature and extent of the “hopeless” or inappropriate arguments pursued at trial.

[39]There is no need to go through the specific matters set out by Ms Ventham KC at paragraph 21 above in detailed seriatim. In my view there is force in each point raised and there is no real substance to the defence to them. Further it is not just the individual impact of each rather the cumulative effect that takes the case out of the norm. It is necessary to set out the important findings which I have reached which support these conclusions.

[40]Firstly, there was no realistic prospect on the evidence of establishing malice. Many points could be made (describing the elephant) but a central one will suffice. The whole investigation started because there was a whistleblower in a management position who implicated the Claimants; his fellow managers. The whistleblower maintained his evidence not only up to trial but through it. As I stated in the judgment:

“85. Given what was set out in the summary, that Mr Deveney was thought credible by Mr Tarrant and Trial Counsel and maintained his allegations through cross-examination, the suggestion that officers actually formed the subjective view that he was not credible but pressed on regardless (in so doing not only persuading Mr Tarrant but effectively removing his ability to form a balanced independent judgment) was always going to be, to say the least, a difficult one to advance. The reality is that it gained no traction through the hearing of evidence and was very firmly rebuffed by the Defendant's witnesses. I think that any objective, independent observer of the trial would be truly astonished if my finding was other than that I am entirely satisfied that at no stage in the investigation did any of the officers who provided a statement in this action come to believe that Mr Deveney was not telling the truth on the central issue of fraud. I also see no realistic possibility that any other officers involved in the investigation formed such a view. Indeed I am satisfied that DS Brownsell still believes that there is at least some truth in what Mr Deveney has said about the extra care charges.”

The Claimants steadfastly held the view that what Mr Deveney said was accepted by the Defendants’ officers without question. This was demonstrably wrong. As I stated at paragraph 173 of the judgment; “On any reasonable and objective reading of the summary, MG6 and subsequent extra information supplied to Mr Tarrant by DS Horsburgh matters concerning the character of Mr Deveney were raised for the consideration of Mr Tarrant. However Mr Wilson at no stage changed or resiled from this view. Put simply it is obviously not right to say that there was "no consideration" of Mr Deveney's credibility.”

[41]Secondly the Claimants turned the case into an unreasonably extensive factual enquiry at times akin to a public enquiry into behaviour without focus on the causes of action which, importantly, did not include negligence. As I stated; “756. I have made a number of findings of fact/observations which are critical of the investigation and subsequent prosecution and in my view there were some errors of judgment and/or inadequacies in the approach taken not only by the police but also by Mr Tarrant and Counsel. However, it bears repeating that the Claimants' claim is not one based on negligence. Also this has not been a determination of policing conduct/standards.” And “823. There is validity in Mr Warnock's criticism with his closing submission that much of the questioning of the witnesses proceeded as if the Claimants were advancing a negligence claim (or conducting a public inquiry into Police professionalism and/or why there was a failed prosecution) e.g. suggestions of failure to give appropriate weight to the PWC report; failure to devise a better questionnaire for those who worked at Cawston Park; the suggestion that the Major Investigation Team were inexperienced in investigating fraud; the allegation that the investigators did not keep a sufficiently open mind and therefore missed the significance of exculpatory evidence, the inappropriateness of continuing to attend at a social club when Mr Breeze also remained a member and/or of drinking too much when doing so. Malice is distinct from incompetence or negligence and I am satisfied that the relevant officers within the investigation did not act with malice on any significant occasion or in any material way. Mr Warnock referred to the view expressed by Lord Carloway (President) in the Scottish case of Grier v Lord Advocate

[2022] CSIH 57

; 2023 S.C. 116 at para 108 , "It is not to be readily assumed that a failure by the police to report a particular piece of information, or produce a specific document, to the Crown stems from malice. On the contrary, there is a presumption that a public office holder is doing no more than his duty, and doing it honestly and bona fide (Beaton v Ivory (1887) 14R 1057, LP (Inglis) at 1061). A police report, by its very nature, is bound to be a summary in order to make it reasonably digestible to the prosecuting authority. It cannot, and should not, cover all the minutiae of months of investigation. It must, to a degree, be selective, even though the law of disclosure must ultimately be complied with. Even then, what is readily seen in hindsight to have been of relevance may not have assumed such a significance at an earlier stage. This is the real world in which prosecutions are commenced. In short, the occurrence of mistakes does not normally constitute a conspiracy or give rise to an inference of malice". I respectfully agree.” "It is not to be readily assumed that a failure by the police to report a particular piece of information, or produce a specific document, to the Crown stems from malice. On the contrary, there is a presumption that a public office holder is doing no more than his duty, and doing it honestly and bona fide (Beaton v Ivory (1887) 14R 1057, LP (Inglis) at 1061). A police report, by its very nature, is bound to be a summary in order to make it reasonably digestible to the prosecuting authority. It cannot, and should not, cover all the minutiae of months of investigation. It must, to a degree, be selective, even though the law of disclosure must ultimately be complied with. Even then, what is readily seen in hindsight to have been of relevance may not have assumed such a significance at an earlier stage. This is the real world in which prosecutions are commenced. In short, the occurrence of mistakes does not normally constitute a conspiracy or give rise to an inference of malice".

[42]There was a very wide range of specific allegations covering virtually the whole of the police investigation and there is some validity in the submission that the Defendant had to respond to allegations that covered virtually everything his officers had done when investigating the Claimants.

[43]Thirdly, the case presented at trial included allegations akin to serious dishonesty over an extended period of time/involving a number of individual officers which were without any real foundation yet doggedly pursued. As Otton LJ observed in Sinclair v Chief Constable of West Yorkshire & British Telecoms Plc (unreported, Court of Appeal, 12 December 2000) at p.10:

"Malicious prosecution is one of the most serious allegations inour jurisprudence. It is akin to fraud and imparts an assertion of deliberate dishonest behaviour on the part of the defendant. In order to succeed the Plaintiff faces a considerable task” As for Misfeasance in public office in Hussain-v-Chief Constable of West Mercia [2008] EWCA Civ 1205 Lord Justice Maurice Kay described it as: "an intentional tort of considerable gravity."

[44]The Claimants case was a full frontal attack on the officers’ integrity. By way of example in opening submissions it was stated to be the Claimants' case that; "For the purposes of misfeasance in public office, the Claimants further contend that the Defendant's officers did not approach the investigation with an open mind and held an improper and malicious motive and that they maliciously abused their powers as public officers in the knowledge that such abuse of power would probably cause them damage. Further, the Claimants contend that the Defendant's officers knew that the prosecution of them would lead to the demise of their business and/or the companies. The Claimants further aver that the Defendant's officers suppressed fundamental evidence which they knew would undermine any prosecution case, and which would support the Claimants case, thus rendering it more likely that the Claimants would be convicted of the charges."

[45]Whilst the making of allegations of this type (that officers approached the investigation with a mindset of guilt, systematically ignored and discarded evidence which pointed towards innocence and suppressed and/or manipulated and/or changed evidence so as to create a false picture that misled the CPS) may be an essential part of proving the Torts it must be appreciated (and failure to do so is potentially unreasonable) that if serious allegations of this nature are to be pursued, a fortiori against a number of named individuals, this should be done with circumspection. The degree of publicity surrounding a case (and here there was a significant amount of publicity) is also relevant in this regard.

[46]Fourthly some of allegations were “to put it most charitably, thin and, in some respects, far-fetched” and some were irreconcilable with the contemporaneous documents.

[47]As regards the contemporaneous documentation any objective evaluation of the Claimants’ case would conclude that there was one key document; the 200 page long case summary provided to the CPS. In reality unless that could be successfully attacked to a significant degree the claim faced obvious, and in all likelihood fatal, difficulties. As I stated in the judgment; “92. As I shall set out in detail in due course it was a very strange aspect to the conduct of the Claimants' case at trial that DS Brownsell; the author of the case summary and MG6 (he said that the contents of the case summary were prepared primarily by him but in conjunction with DC Horsburgh) was not cross-examined about the detailed content of these lengthy documents (save for one very limited issue). This despite it being the Claimants' case, as set out in opening and closing submissions, that the case summary was "clearly misleading in a number of respects as it did not represent the true state of the evidence". As I set out at paragraph 466; “…it came as no surprise that within his closing submissions Mr Warnock argued that given that the Claimants' case depended centrally on the allegation that the summary of the evidence provided to the CPS for advice on charge was biased and/or false and/or incomplete, it was wholly inexplicable that the author of the 186-page summary was only challenged as to one short passage within it and that the case summary was "almost entirely unchallenged".”

[48]I also dealt with the lack of cross-examination in relation to the case summary at paragraphs 459 – 472. It remains little short of extraordinary given the importance of the document in the protracted history of the investigation and subsequent court cases that the Claimants’ case as to content was not put to DS Brownsell.

[49]As for examples of far fetched allegations I stated; “In my judgment Mr Breeze has a mind set that readily imputes malice and as I shall set out in due course the allegation the police deliberately "tampered" with evidence is misconceived and without foundation; and as regards the allegation that Dr Barker’s statement had been tampered with; “In my judgment Mr Breeze's allegation is fanciful and his refusal to accept what was obviously an accurate rationale within the statement speaks volumes of the extent to which he will find a way of attacking the police conduct of the inquiry, however unreasonably.”

[50]Fifthly, contrary to Mr Metzer KC’s submission the Claimants did run inconsistent arguments/cases on a central issue at trial. As I stated at “74. A fracture line running through the Claimants' case, as highlighted by questions of officers suggesting that they believed that Mr Deveney's account was not believable, resulted from the obvious tension between the assertion that there was on the one hand a "mindset of guilt" i.e. officers formed a closed mind to the potential of the Claimants' innocence and the assertion that the officers did not have an honest belief in guilt i.e. they believed in the Claimants' innocence (and were doing senior officers' bidding in trying to secure a conviction).” And “174. Mr Wilson's comments in his statements and his oral evidence as a whole are also somewhat difficult to reconcile with a case based on the assertion that the officers knew that the Claimants were innocent. They appear more consistent with a belief that the officers believed that they were guilty and closed their minds to any alternative suggestion.” And at “766. It is (and has consistently been) the Claimants' case that the investigating officers did not honestly believe in the guilt of the Claimants but nevertheless sought to achieve their conviction. The suggestion put to witnesses was that this was because of the pressure they perceived they were under from senior officers to secure a conviction. The Defendant's closing submissions pointed out the inherent contradiction within the case as advanced at trial. "…the Claimants called a series of witnesses whose evidence was to the effect that the investigating officers appeared convinced that the Claimants were guilty. Moreover, all of the police witnesses were explicitly challenged to the effect that they had a "mindset of guilt" and/or that they regarded the Claimants as guilty." I should add my conclusion; “767. As an overarching finding I am satisfied, not just on balance but so that I am sure that none of the officers who gave evidence believed, at any stage before the trial, that the Claimants were innocent. Quite the reverse. Indeed despite what happened at trial it was clear to me that DS Brownsell still believes that the Claimants were guilty of some element of fraud in respect of the charges levied for extra care.”

[51]Sixthly the Claimants were almost totally blind to any criticism of their conduct; including by other senior figures in the history of the business ; put simply they would not accept, despite the clear evidence to the contrary that there was anything wrong at all, any aspect which might reasonably have supported the allegations made by the whistleblower. As I stated; “175. Mr Wilson's comments in his statement also ignore the totality of the evidence obtained by the Police and the fundamental weakness in the Claimant's business approach; the lack of any accurate written explanation/contractual term setting out this explanation of the charge to those paying it, the lack of any proper audit and consequential confusion. When this was put to him Mr Wilson said that they got "better with time; we got better at documenting all sorts of things." Also, as I shall set out important witnesses (such as Mr Chancellor and Dr Barker) did not assist the Claimants at all when they were interviewed or when providing statements; quite the reverse.

[52]Seventhly the Claimants relied on evidence in relation to allegations which, reasonably viewed had no probative value for the causes of action alleged. As I stated; “364. As an overview I gained very little assistance from any of the evidence concerning conversations or meetings at the City Club. As with the evidence of Mrs Breeze (which I shall briefly consider in due course) it is difficult to see why the evidence was presented to the Court as even taken at its highest the content did not materially advance the Claimants' case on the two causes of action pleaded. Indeed it was a theme of this evidence that the officers concerned believed (and in one case still believed post trial) in the Claimants' guilt. Whether any officer was unprofessional in what he said in expressing a view about the Claimant's guilt may be matter for complaint (and complaints were made and investigated and to a degree upheld) but in my view it did not impact on the central issues in the case. Ms Morris's suggestion during cross-examination that the officers were "trying to alienate Mr Breeze from his support group" was in my view fanciful. Despite this overview given it was produced I shall set out the evidence.” And 382. The Claimants' case in relation to the restraint proceedings also lacked focus and in my judgment had not been adequately thought through. Mr Metzer described it as "background" and not the primary focus of the Claimants' case. The merits of the restraint order were not analysed before me in any detail.” And “432. Mr Adcock set out his view of Inspector Cunningham having known him for many years. He made some irrelevant, highly critical comments about his character, business interests and other matters. Some of the matters were so obviously irrelevant it is surprising that they were included in a statement.”

[53]In my judgment the points set out above, a fortiori when taken cumulatively, amount to unreasonable behaviour that amply merits the award of indemnity costs on the limited basis sought.

[54]I turn to Mr Metzer KC’s other submissions.

Strike out/summary judgment

[55]In my view there is no force in this case in Mr Mezter KC’s submission that the Defendant should be denied indemnity costs because of a failure to try to attack the claim/elements by applications before trial.

[56]Strike out and/or summary judgment applications based on the inadequacy of the strength of evidence are very different beasts to applications based on settled legal principle i.e. that the claim is bad in law (such as, in this case, a head of alleged damage being unrecoverable as a matter of law).

[57]The power to strike out a statement of case is contained in CPR r 3.4 where it:(a) discloses no reasonable grounds;

(b) is an abuse of process or would obstruct the just disposal of proceedings; or

(c) involves a failure to comply with a rule, practice direction, or court order. It is difficult to see how any element could have been readily susceptible to a strike out application as it is a well settled principle that on such applications the pleaded facts are assumed to be true (unless contradictory or obviously wrong) and no evidence is admissible. Also the Court would have been faced with the wide breadth of the Claimants’ allegations and, I have no doubt, the argument that inferences could be drawn from what would at first blush seem irrelevant matters.

[58]The power to grant summary judgment is contained in CPR r 24.3. The Court may grant summary judgment against a claimant or defendant, in respect of the entire claim or a specific issue, if:(a) it is satisfied that the party has no real prospect of succeeding on the claim, defence, or issue; and

(b) there is no other compelling reason for the matter to proceed to trial. The principles in relation to summary judgment are well established and require no exegesis from me for the purposes of this judgment. Suffice to say that the Court must consider whether the Claimant has a realistic, as opposed to a fanciful, prospect of success. Unlike when considering strike out, on a summary judgment application the court may assess evidence and reject versions of facts that are implausible or unsupported by documents. However, as Ms Ventham KC correctly submitted the Court must not conduct a mini trial which, realistically it would have been required to do had the Defendants applied on the basis that the evidence did not adequately support the widely pleaded case. I accept Ms Ventham KC’s submission that in this case, based as it was on a complex, long and protracted history with wide ranging allegations it would be wrong and unrealistic to suggest that the Defendant should have adopted this course with consequential risk as to costs.

Claimants’ conduct

[59]As I have set out the Claimants submit that it would be unjust to award indemnity costs to the Defendant, when his own conduct as to disclosure of the evidence upon which the Claimants’ case was based has been demonstrably poor. I have considered the Defendant’s disclosure failures (to be taken in the context of the very large amount of documentation in the case and the age of the allegations) and considered them against the conduct of the action as a whole and, of particular significance, after the November letter.

[60]My conclusion is as follows;(a) Disclosure failures earlier on in the conduct of the case resulted in free standing adverse costs orders. The Defendant’s application is limited to a time well after these failures.

(b) None of the “late” disclosure had any significant impact on the liability issues. The Claimants proceeded on when they had the documentation and required no time to amend their approach to any issue, to further investigate matters or to adduce any further evidence in response. Such time as was taken in consideration of the documentation (or listening to the audio of Mr Bull’s interview) was relatively minor when set against the edifice of the case as a whole.

The letter and failure to make an offer

[61]Within the Claimants’ written submissions on this application it was rather curiously stated that the primary question for the court was whether the Defendant made them a qualifying offer, which grants an automatic entitlement to indemnity costs. However that suggestion was wholly misconceived as it was not the Defendant’s argument at any stage that the letter of 25th November 2024 was a part 36 Offer. It plainly was not and has never been stated to be such. Indeed the letter was not an offer at all rather it was an invitation to discontinue and a warning as to what would happen if the Claimants did not do so as the Defendant would argue that it was unreasonable to continue with the claim. I have no doubt that the intent in large part was to alert the after-the-event insurer to what was perceived to be the obvious weakness of the Claimants’ case. However the letter set down a marker in the sand that it would be argued in due course (if the claim failed) that to continue to pursue the action constituted unreasonable conduct. This is the basis upon which the application, limited as it is to costs incurred in preparation for and conduct of the trial, is made.

[62]The Claimants’ response to the letter was to continue on. The Claimants submit in their written submissions that that they should not be penalised in circumstances in which the Defendant made no offers to settle proceedings to protect his position in respect of seeking indemnity costs. However, this argument has very limited force. As for the suggestion that the Defendant should have made(a) a Part 36 offer and/or

(b) a low offer; the problem with a “low offer” (whatever that means) is that if made under Part 36 then by virtue of CPR 36.13 it would automatically have come with a liability for substantial costs to the date of acceptance; this for what the Defendant believed was a wholly unmeritorious claim. In reality the only offer a party may make in circumstances where it is believed that a claim is unmeritorious is some compromise as to costs and that would have to be made outside the provisions of Part 36. Mr Metzer KC’s realistic criticism can only be a failure to offer a “drop hands” approach to costs. That would mean that a publicly funded body would be taking a substantial financial hit for defending an unmeritorious claim (with an understandable concern that this may be thought to be a worst case scenario by any other considering bringing similar claims).

[63]I am also wholly satisfied, having had conduct of the trial, that the likelihood of a drop hands offer having been accepted was very remote (and it is not suggested that it would have been accepted). The Claimants’ offer to settle was for a combined sum of £2.2 million and costs. This is very far removed from any indication that the Claimants might be willing to compromise on the basis of the Defendant having a restricted recovery of costs.

Conclusion

[64]For the reasons set out above it is my view that there should be an award of indemnity costs as sought, being principally in relation to trial preparation and trial costs.