Pelling v Johnson [2004] EWHC 492 (QB)

Case No HQ03X007302004] EWHC 492 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 March 2004
Before
THE HONOURABLE MR JUSTICE LEVESON
Between
MICHAEL JOHN PELLINGClaimantPHILIP JOHNSONDefendant
Dr Michael Pelling appeared in person for in personMr William Hoskins (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates : 23-26 February 2004
Judgment
[1]On Thursday 23rd January 2003, Dr Michael Pelling was acting as a McKenzie friend for AM, the father of FM, a boy then ten years of age who was and had been the subject of a long running residence and contact dispute being fought between his parents. On this particular occasion, Singer J was concerned with the failure of AM to return FM to his mother notwithstanding orders to that effect; the question arose where FM should reside pending further consideration of the matter.[2]The judge asked Mrs Muriel Raleigh, a children and family reporter, to speak to FM and thereafter ordered that he should return to live with his mother for two days. He gave directions that the reporter should inform FM and that AM should move to a different part of the Royal Courts of Justice while this order was effected. An Assistant Tipstaff, Mr Philip Johnson, was on hand and Singer J had asked him to loiter in the area and ensure that AM was not in the vicinity should FM’s mother seek to leave with the boy.[3]Mrs Raleigh spoke to FM initially in a conference room but then followed him into the corridor when he left the room, where she continued to talk to him; it was clear that he did not want to go with his mother. Dr Pelling went to speak to him and he and Mrs Raleigh exchanged words; Mr. Johnson became involved. Shortly thereafter, the Judge happened to enter the corridor. He had been about to leave the building but he did not do so and took control. He directed two other adults (who were friends and supporters of AM and FM and were with FM at the time) and Dr Pelling to leave; Dr Pelling went back through the door leading to the vestibule to the court. The judge thenTT spoke to FM himself.[4]Having tried unsuccessfully to persuade FM to comply with his order, Singer J directed the court to be reconvened. While he was returning to court, Dr Pelling again went to FM and spoke to him. He complains that Mr Johnson tried to overhear his conversation and, at one stage, sought to prevent him speaking to FM by grabbing him by the shoulder, grasping his jacket and attempting to pull him away. These allegations are denied. What is not in issue is that at an early stage of this interchange, Dr Pelling said to the boy words to the effect "Hold firm, you don’t have to go back to your mother".[5]Back in court, Singer J reversed his earlier order. Having been concerned with Dr Pelling’s conduct prior to his speaking to FM and having heard the evidence of the acting Deputy Tipstaff (Mrs Susan Cheesley) as to what Dr Pelling had said, the Judge said that he was considering criminal contempt proceedings; he also directed that Dr Pelling could no longer act as AM’s McKenzie friend. Dr Pelling then left the court and, again, went to speak to FM. He alleges that Mr Johnson behaved in an intimidating manner, again attempted to overhear his conversation and objected to him speaking to the boy. This also is denied although it is Mr Johnson’s case that there was concern about Dr Pelling leaving with FM (those outside the court, including the Judge’s clerk, not knowing about the changed order). In the event, the matter was clarified with the judge, AM appeared and with the benefit of Singer J’s amended order, all left the building.[6]Against that background, in summary form only, Dr Pelling brings this action. In relation to the incident after Singer J had left FM and Dr Pelling had gone to speak to him, he complains of trespass to the person, but in respect of both that incident and the subsequent occasion when he spoke to FM, he alleges breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and misfeasance in public office. He seeks damages, aggravated damages and exemplary damages. The action is resisted by Mr Johnson who denies seizing Dr Pelling or exerting any force upon him and, through the witnesses called on his behalf, puts an entirely different perspective on the events of the afternoon claiming that Dr Pelling had no business speaking to FM and that he was effectively encouraging him to resist acceding to Singer J’s order. Dr Pelling takes issue with this way of characterising what happened not only by asserting that the Judge had made no order preventing him from talking to the boy but also by contending that the boy’s mother, Mrs Raleigh and Singer J had themselves each acted in contravention of the boy’s rights under Article 3 of the Convention. That contention is apparently reflected in separate civil proceedings brought by FM.[7]I ought to add one further detail. Following on the Judge’s observation about contempt of court, HM Attorney General has now instituted such proceedings. One of the three allegations specifically concerns Dr Pelling’s conduct during this afternoon. I raised concerns both about the personal risk to Dr Pelling pursuing this action to trial at this stage with a criminal allegation hanging over him and also about the prospects of there having to be another trial, involving the same incident and the same witnesses (including FM) before a different judge. Dr Pelling was emphatic that he wished to proceed. Mr Andrew Caldecott QC, who is instructed by the Attorney General in the contempt case, helpfully appeared before me to address my concerns; while recognising them as entirely legitimate he also foreshadowed difficulties standing in the way of concurrent or even consecutive hearings before the same judge. After this exchange and, my having made the position and the dangers very clear, Dr Pelling still wished to proceed and I acceded to that application. So as to minimise any impact of this decision on any future hearing, however, I limit myself to a narrow analysis of the facts and the issues which fall to me to decide. The Characters[8]I start a review of my assessment of the principal characters involved in this incident with Dr Michael Pelling. Dr Pelling is a highly intelligent, articulate and persuasive advocate. He told me that he became involved in family law disputes because of his own personal difficulties but now specialises in (and is paid for) advising others in the capacity of a McKenzie friend. Underlying his moderate and skilful presentation, however, is deep contempt not merely for the administration of justice in this field but also for many of those who practise within it. He agreed that he has described members of the judiciary as corrupt and evil; in his closing submissions he did not resile from that, using the word ‘corrupt’ in the sense of turning from a sound to an impure condition or debasing good quality. He believes that the judiciary are willing to cover up for the faults of its own. He said that he was entitled to his view and, indeed, he is.[9]He said that he was not uncontrolled or emotional but he also made it clear that he felt that he could only act as a McKenzie friend for those whose case he believed. Thus, in relation to FM (whom he had known for many years and whom, it appears, he had befriended), he was not prepared to brook any suggestion that the Judge was entitled to reach the conclusion that he did and, as far as he was concerned, although only 10 years of age, FM was entitled to have his wishes respected and followed irrespective of any countervailing opinion. Dr Pelling felt it right to elicit from FM that Mrs Raleigh and the judge had upset him whereas he, Dr Pelling, had made him feel happy. Whatever his experiences with his mother, given (as I am sure is the case) that FM had been heavily influenced in his approach to the jurisdiction of the court by his father and Dr Pelling, any attempt to persuade him to build bridges with his mother would inevitably upset him but that does not mean that such was not in his best interests. This is an example of the insidious effect that both Dr Pelling (and AM) have had, doubtless believing that their view is better than that of anyone else; I believe that the characterisation of him on this occasion as emotional and aggressive (intellectually, not physically) is accurate.[10]I have no doubt that Dr Pelling’s judgment can be deeply flawed and is affected by the perception which I have described. He has a different agenda than the simple exploration of truth and I do not feel able to rely on his evidence as necessarily both honest and accurate where that agenda comes into play. That is not to say, however, that I can or do use that as a broad brush to reject everything that he says. Whereas I am sure that he viewed events through tinted spectacles, such that he would readily infer conspiracy and ill-motive in any court official with whom he disagreed, I am not prepared necessarily to conclude that there is not a kernel of truth underlying at least part of what he says. To that end, I must look to the other witnesses.[11]FM’s father, AM, gave no relevant evidence in relation to the incidents save only to make judgments on what Dr Pelling said (for example, believing the allegation of eavesdropping). His value as a witness was to confirm my view of the way in which he has infected FM’s mind and the boy’s approach to the court. It was suggested to him that he was extremely agitated and aggressive that afternoon. His reaction was to say "What would you do in this situation? Put yourself in my shoes." He then denied that he was agitated or aggressive but went on to describe those who spoke to FM (presumably Mrs Raleigh and the judge) as inhuman, ruthless, hyenas, saying that he had to express how he felt. It is inconceivable that this agitation was not manifest at the time or that his opinions had not been passed to FM and conditioned his approach both to the court and to this case.[12]Mr John Torrance, who came to support AM and FM and had himself in the past acted as a McKenzie friend to AM (with a personal history which he said "doubles for that" of AM and 25 years campaigning for divorce and family law reform) adds his own pinions as to the purpose from his own perceptions of fairness. Because of the passage of time and the fact that at 80 years of age his memory was not as good as once it was, he could not now remember a number of details. It was because of his memory difficulties that he apparently took contemporaneous notes of what was said. These notes were not produced. Rather, in re-examination, Dr Pelling sought to rely on the fact that the written statement was made initially in August and signed in November; had I seen the contemporaneous notes, I would indeed have been prepared to pay more attention to any elaboration in the statement of facts contained within the notes. As it is, there must be a good reason why the notes have not been shown to me and I am not prepared to make assumptions of consistency. I therefore view his statement and evidence with a measure of reserve.[13]That brings me to FM. He is a bright, intelligent boy with an attractive personality who, I have no doubt, has been heavily influenced in his approach to the court system by his father and by Dr Pelling. I pass no judgment on his complaints about his mother’s treatment of him but I am not surprised that attempts to persuade him both by Mrs Raleigh and the Judge were doomed to fail: his mind had been and was closed. He made it clear to Mrs Raleigh that there was no justice in the courts and in particular for fathers and she gave evidence to Singer J that FM had been significantly influenced by his father’s point of view, describing the issues in "age inappropriate" ways. I agree with that assessment.[14]As to his affidavit, sworn 2nd September 2003, it is seven pages of comparatively closely typed script, logically presented in language that was not his. FM named people whose name he could not possibly have known unless he had been told retrospectively, spoke of his mother obtaining an ex parte order endorsed with a penal notice, an application for a Recovery Order which he explained was under s. 34(1) of the Family Law Act 1986, the decision of Hughes J and the rank of the Tipstaff who sought to execute the order. He referred to the ‘CAFCASS Reporter, Mrs Muriel Raleigh’. Yet when I asked him about his statement, he said that he gave his account in his own words and Dr Pelling typed it. I am afraid that I simply do not believe that to be true.[15]In his closing submissions, Dr Pelling relied on these answers as demonstrating reliability. When I suggested that I may not accept that a 10 or 11 year old boy had dictated this piece of English in these words, he submitted that all FM was saying was that the content was his; he tried to give evidence and accept that he had been responsible for the language. In my view, it goes further than that. I have no doubt, as Mr Hoskins submitted, that not only FM’s views but also his perceptions are, indeed, heavily influenced by the expectations of his father and Dr Pelling. Having said that, however, it does not mean that every aspect of what he said should be discounted. Suffice to say, I do not believe that he, his father and Dr Pelling have deliberately conspired to create a false account. Rather, in perception and subsequent discussion (described by Mr Torrance as careful questioning of FM when they all got home), what has happened has developed into something rather more sinister. Further, in the circumstances, that these witnesses should say the same thing is not at all surprising.[16]I turn to the principal witnesses called by Mr Hoskins and start with the Defendant, Mr Philip Johnson. He is a large man whose physical presence might unintentionally appear to be intimidating particularly in the small area of the corridor outside the court but he was, I am afraid, a most unimpressive witness. Having asserted that he was "generally happy" with his written statement (correcting a detail having listened to a tape of the court proceedings), he could not really remember the incident at all. Initially, in cross examination, he said that he was sure that paragraph 15 of his statement, dealing with the incident of alleged use of force, (to the effect that he moved up the corridor after Dr Pelling sat down near FM and never approached him) was true. Then he said that paragraph 9 of his Defence, with the accompanying signed Statement of Truth (to the effect that he had said to Dr Pelling that he had no business talking to FM, that Dr Pelling had said that the Judge had made no order and then said to the boy "Hold firm. You don’t have to go with your mother") was true. Then he reverted to his statement, finally saying that he might have spoken to Dr Pelling, he was not sure.[17]Mr Johnson went on to say that he could hardly remember anything about that day but asserted that whatever it said in his statement was what happened. He could not explain why he could say that. In re-examination, he said that he had remembered things quite well and that when he signed his statement, he remembered the day he was accused of assault and had not assaulted Dr Pelling. Suffice to say that Mr Hoskins accepted in his submissions that I could not rely on his evidence for any purpose. I only note three features. First, he said that he thought that because Dr Pelling was AM’s McKenzie friend, when the Judge required him to go to the Great Hall to wait while Mrs Raleigh spoke to FM, he expected Dr Pelling to go with him. Secondly, in relation to the allegations of eavesdropping, he is deaf in one ear.[18]Thirdly, Dr Pelling is anxious that I make findings of fact about one aspect of Mr Johnson’s evidence. During his evidence, he said twice that he believed that he was entitled to stop Dr Pelling speaking to FM. At the end of his cross examination, Dr Pelling took Mr Johnson back to these answers and asked whether he thought that he had a right to use force to achieve that end or only peacefully to persuade. Mr Johnson replied that as Dr Pelling was AM’s McKenzie friend, he should have been with AM. Dr Pelling asked whether, when he thought that, did he think he had the right to go so far as to use force. Mr Johnson replied, "No, I wouldn’t use force in front of a child." He was told, correctly, that this answer did not address the question, which was then repeated. Mr Johnson said "No, because the child was there. I don’t use force in front of a child". Dr Pelling asked whether it was then fair that he wrote down that he did not have the power to use force to stop him talking to the child. He did not demur. I asked whether he believed that if he wished to use force to stop Dr Pelling talking to FM, he had the right to. He said "No. If the Judge ordered me to, then I would." This must be all be read in the context of his comments that he remembered things quite well but not this far back and that sometimes he remembered.[19]Dr Pelling relies on this evidence of what Mr Johnson thought as an important admission of deliberate or reckless misbehaviour. Suffice to say, bearing in mind the many different and conflicting things that Mr Johnson had said on a variety of topics, and the way he gave his evidence, I do not feel able to rely on any of his answers as accurate statement of what he actually believed at the time any more than I feel able to rely on anything else that he said. I am not saying that he deliberately lied to me: rather, he now has no real or reliable perception of what happened in the corridor, what he was thinking about at the time (either about his powers or how he should react to the situation which had arisen) or, indeed, why he did what he did. Neither is it clear how he interpreted what he thought that the Judge had directed or (perhaps because of the way the questions were phrased) that he was necessarily focussing on the issue of any physical contact, however trivial. For these reasons, I do not place any weight on these answers either and they do not feature in my analysis.[20]Moving on, I take a very different view to that which I formed of Mr Johnson about Mrs Muriel Raleigh. A very experienced children and family court reporter, she made notes initially and further notes the following day (which were typed and in the papers). She was measured, both in what she said to Singer J and to me, sensible and prepared to concede possibilities where she was not sure. I found her convincing: as will become clear, I have no hesitation in accepting her evidence. While talking to FM about trying a couple of days with his mother, in whatever way she might have imparted the information about AM (either that he had left the court building as she believed, or that he had gone home which she thought unlikely but could not discount with certainty), I reject the suggestion that she deliberately lied to FM to force him to go with his mother. It is further informative that she accepted that it was perfectly proper for FM to know that his father was about and made clear (which was not disputed) that she had apologised to FM if he had been misled.[21]Mrs Cheesley, the acting Deputy Tipstaff, was also a credible witness. While somewhat dogmatic about certain details some of which she later accepted were inaccurate, I have no difficult accepting the broad thrust of what she said (which was not essentially disputed). Having said that, Mr Hoskins relied on Mrs Cheesley’s presence throughout the incident when the assault is alleged to have taken place and invited me to accept her evidence and thus reject the allegation of assault. Dr Pelling also accepted that she was there and invited me to decide that she had colluded in a cover up. He argued that her omission to reflect in her statement the conversation which she reported to the judge between Mr Johnson and Dr Pelling (and which is not essentially in issue) evidences collusion with him to cover up and give false evidence: the fact of that conversation is the subject of the contempt allegation.[22]I will deal with the extent to which she witnessed the entire incident involving Mr Johnson and Dr Pelling later. In relation to the failure to mention conversation between the two, I believe that the detail she gave to the judge (which was omitted from the affidavit she prepared that evening) was simply accidentally omitted in her later statement or affidavit in the contempt proceedings; its absence was simply not picked up. If there had been collusion after the allegation of unlawful force was made, the collusive agreement would, at the least, have incorporated the same details she had reported to the judge and dealt with how the incident ended. Analysis of the Facts[23]Having expressed myself in detail about the witnesses who gave evidence, I can summarise my findings of fact comparatively shortly. I only deal with the period prior to Mrs Raleigh’s meeting with FM because of the way Dr Pelling put his case. Suffice to say, I accept that he and AM did approach her in advance of the first hearing to seek to influence her views as to the risk to FM by requiring her to read statements and letters; they did so in a way which took her aback. Singer J then fully briefed Mrs Raleigh who it is common ground faithfully reflected FM’s feelings and wishes back to the court. The judge made his decision that FM should return to his mother for two nights and left it to Mrs Raleigh to explain it to him.[24]Doubtless recognising the extent to which FM would feel loyalty to his father, if his father was present, Singer J was anxious to ensure that this difficult task was undertaken in his absence. Whether AM responded to an order, a direction or request is not to the point; he agreed to leave that part of the building where FM was waiting. I have no doubt that the Judge equally intended that no one else should interfere: whether that is a necessary implication of his directions, I specifically do not decide (because of the contempt proceedings) but I must make it clear that it was not reckless or an abuse of power for anyone to assume that this was so: the Court Associate (Sandra James) believed it to be so and Mr Johnson clearly believed it to be so (bearing in mind what Dr Pelling and Mrs Cheesley say that he said subsequently). Indeed, Singer J also believed it to be so: when dealing with the matter later, he said in terms that he thought that Dr Pelling should have left and gone to the main hall with AM.[25]Mrs Raleigh’s task was clearly going to be difficult and it was a matter for her to decide how far it was appropriate for her to go. Dr Pelling agreed that it would have been quite wrong for him to interrupt her in the conference room but, when FM left the room and returned to the corridor, with Mrs Raleigh following him, he took the view that if FM had decided that his discussion with Mrs Raleigh was at an end, it was at an end and he could interfere. It is only because Dr Pelling asserts that Mrs Raleigh’s conduct (and that of the Judge) constituted a breaches of Article 3 and 8 of the Convention and thus legitimised all he did and put Mr Johnson in the wrong that I deal with this issue. In my judgment, Mrs Raleigh was perfectly entitled to decide that she should continue in her efforts to break down FM’s hostility towards his mother and Dr Pelling was interfering in a way that he had no right to. I ought to add that although FM (and, indeed, Mr Torrance) allege that Mrs Raleigh repeatedly pulled his shoulder, I do not accept that she went further than she explained in her evidence, or that she did anything improper.[26]In the event, the Judge came out and took over, despatching all the supporters (including Dr Pelling) and talking to FM himself. Dr Pelling and AM (along with Sandra James, the Associate and Brian Atkinson the Judge’s clerk) were in the vestibule of the court. I shall return to this below but there is no doubt about its effect on Dr Pelling. It is not challenged that he made remarks (subsequently noted by the Associate on the court log) such as "the court is using bullying tactics", "1,2,3 people onto a 10 year old child – the decisions made are crap" and "the judge has no right to speak to the child in the corridor; what would the President think? The child’s needs are paramount –what a load of bullshit". AM agreed and echoed the remarks. Mr Atkinson said that Dr Pelling’s demeanour was such that he was trying to pick an argument with him and that he responded, "I am not going to get into an argument with you. I don’t have to listen to you". I accept Mr Atkinson’s evidence and accept that it accurately reflects the mood of Dr Pelling at the time: this is an important feature to which I shall return when dealing with what happened in the corridor.[27]After the Judge left the corridor to return to court, accompanied by his clerk, who I am satisfied did not see the incident which followed, there was a short delay before the proceedings resumed. Mrs Raleigh went into court, as did AM and the Associate leaving FM, with Mr Johnson and (a little apart) Mrs Cheesley, in the corridor. Mrs Cheesley reported what happened to the Judge as soon as a tape was available. Having explained that after his intervention, Dr Pelling was in the lobby to the court, she went on to tell him:
"Dr Pelling then made his way out to the corridor. My colleague Mr Johnson was talking to the child and said it may be better for him if he went back into the room where he’d spoken to the CAFCASS officer, at which point Dr Pelling went and sat next to the boy and attempted to talk to him. Mr Johnson told Dr Pelling that he had no business to talk to him and that you [ie the Judge] would prefer it if he didn’t to which Dr Pelling said that you had made no order to say that fact. He then proceeded to put his arm around the boy and said, his exact words were, "
Hold firm, you don’t have to go back to your mother" at which point I came into you and told you of the events." This is the account which is not repeated in the affidavit of that night or the subsequent statements but I have no doubt that it accurately represents exactly what happened.[28]The important feature of this account is that it is clear that Mrs Cheesley left the incident to report to the Judge. She does not recount how the exchange between Mr Johnson and Dr Pelling continued and there is no good evidence that she was necessarily present until it came to an end. Dr Pelling said in his statement that he was aware of Mrs Cheesley when he entered the corridor but he does not mention her again. Having recounted the incident, FM says that he saw the woman Tipstaff but it is not clear at what moment he saw her and he was not asked.[29]Dr Pelling said that when he came out of the vestibule, he was aware of Mr Johnson in the corridor and he went up to FM to cheer him up. It was then that he made the "hold firm" remark and by then that Mr Johnson had "drawn close as if trying to listen to what I was saying". It was then that he told him that he had no business talking to the boy. FM says the same thing but, given the conclusions which I have already expressed, that is not very surprising.[30]I prefer the immediately reported account of Mrs Cheesley to that of Dr Pelling and FM; there was neither lapse of time nor reason for her not to recount accurately what she had seen and heard. Further, I do not believe that Mr Johnson was deliberately trying to overhear a private conversation. At best this is an inference from the fact that he was approaching and then in the immediate vicinity of Dr Pelling and FM; given that he was concerned about the fact that Dr Pelling was talking to FM in any event, it is not at all surprising that he was. His physical presence (given his size) might have lent apparent credence to the essential concern that he was invading the ‘space’ of Dr Pelling and FM. In my view, as became apparent, he was signalling concern that any conversation was taking place. There is no question of misfeasance or breach of any Dr Pelling’s rights under the ECHR.[31]What happened then? To Mr Johnson’s assertion that he had no business talking to the boy, Dr Pelling says that he responded that the Judge had made no order whereupon Mr Johnson grabbed him by the shoulder and attempted to pull him away by force. In his statement, he goes on: "Partly under the force of [Mr Johnson’s] pulling me and partly under my own volition I then rose to a standing position but [Mr Johnson] did not remove his hand. I told him to stop assaulting me, at which he removed his hand and I immediately went into Court 32…".[32]FM adds more conversation prior to the assault saying that he had his head down and:
"the person speaking accused Dr Pelling of trying to make me not go with my Mum. I then distinctly heard a clumping noise just like a hand clapping on a shoulder. Dr Pelling took away his arm from me and stood up and I opened by eyes and looked up and saw the Assistant Tipstaff Mr Johnson withdraw his hand from Dr Pelling’s shoulder. He was holding on to Dr Pelling’s jacket and then he took his hand off. I also heard Dr Pelling telling Mr Johnson to stop assaulting him. Dr Pelling then went back into Court."
[33]Dr Pelling argued that this account was clearly FM’s own, because it was not wholly supportive of what he said because FM had his eyes shut. I do not agree; this version, reduced into writing in this form as far as I have been told only some months later from a boy apparently devastated by the way he had been treated would be truly remarkable if entirely unaided. I do not think it was.[34]That is not to say that I am in a position to conclude that Mr Johnson did not put his hand on Dr Pelling in some way and so excite the allegation of assault which it is common ground was made very quickly and the subject of a letter before action the following day. I have already made it clear that Mr Johnson’s account is utterly unreliable. Neither am I satisfied that Mrs Cheesley was, in fact, still about after the "hold firm" comment; she believed, rightly, that the judge should be told about it as soon as possible and, on the balance of probability, I believe that she left immediately and did not see how the exchange concluded or Dr Pelling leave and return to court.[35]Perhaps to emphasise his concern that Dr Pelling was doing something that Mr Johnson did not believe he should have been, I am prepared to accept that Mr Johnson did take hold of Dr Pelling. I do not believe that he used any real or substantial force but I accept that the effect of what he did was to make Dr Pelling stand and immediately comment about having been assaulted. Furthermore, what Mr Johnson did was intentional.[36]I am reinforced in the view that whatever contact there was between Dr Pelling and FM was comparatively trivial because of the reaction of FM. It is common ground that after Dr Pelling returned to court, Mr Johnson remained outside the court with FM. At some stage, they were joined by the Judge’s clerk, Mr Atkinson. They chatted about school and hobbies; Mr Atkinson remembers that FM said that he liked natural history programmes and there was conversation about the scouts. He said that FM seemed to become more at ease. That is hardly likely to have been the case if Mr Johnson had appeared in any way threatening to FM, particularly given his heightened emotional state.[37]Can the way in which Mr Johnson came into contact with Dr Pelling be justified? Neither statute nor case law on the powers or duties of those that hold the office of Tipstaff has been placed before me but Mr Hoskins, on his behalf, made it clear that he did not advance any lawful justification for contact if it occurred in the circumstances that arise in this case and in the manner which I have found, on the balance of probabilities, to have been proved. That being the case, I hold that Dr Pelling has established the tort of assault against Mr Johnson.[38]Dr Pelling also claims that Mr Johnson’s conduct constitutes the tort of misfeasance in a public office. The ingredients of that tort have been explained in Three Rivers District Council v. Bank of England (No 3) [2000] 2 WLR 1220. In addition to the requirement that the defendant be a public officer and exercising power as a public officer (neither of which, on my findings of fact, is in issue), the third requirement concerns his state of mind. Lord Steyn put the matter in this way (at page 1231B):
"The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful."
Lord Steyn then went on to add in its second form, subjective recklessness on the part of a public officer in acting in excess of power was sufficient. Recklessness can be as to the illegality of the act (see page 1232H) or as to the consequences of the act, that is, not caring whether the consequences happen or not (see page 1235H). The formulation was summarised by Brooke LJ in R. Cruikshank Ltd v. Chief Constable of Kent County Constabulary [2002] EWCA Civ 1840 in these terms:
"(1) If public officers, such as the police, are not making an honest attempt to perform their duties, they are abusing their power and acting in bad faith; (2) It does not matter for this purpose whether they are deliberately seeking to injure someone or whether they are being recklessly indifferent as to the consequences of their actions on him: each state of mind is equally blameworthy."
[39]Dr Pelling puts this case as one of subjective recklessness as to the act. He refers to the answers which Mr Johnson gave towards the end of his evidence which, for the reasons I have explained, I do not find reliable and place no weight on. Suffice to say that I am satisfied that Mr Johnson honestly believed (whether rightly or not) that Dr Pelling should not have been in discussion with FM and I am equally satisfied that he was making an honest (albeit entirely misconceived) attempt to perform his duties. He was not acting in bad faith. In the circumstances, the tort of misfeasance is not established. I ought to add that even if I had taken a different view, given that Dr Pelling has succeeded in assault, the measure of damages awarded would not have been affected in any event.[40]I come to what happened thereafter and the second alleged incident. After Singer J had ordered that Dr Pelling no longer act as AM’s McKenzie friend, he left the court. He said that FM was then on his own: if he was, Mr Johnson must have left specifically so as not to be in the vicinity (which contradicts the suggestion of a wish to eavesdrop). Certain it is that Mr Atkinson went into court and asked whether Dr Pelling was supposed to be talking to the boy.[41]Mrs Cheesley was also outside the court at this time for she also went back into court and clearly wanted to communicate to the Judge who asked if she wished to return to the witness box. She did so and said:
"I’m most concerned, my lord. Dr Pelling’s just left court and he has immediately gone up to the boy and saying things like, ‘Come on, you can come with me now if you like’. My colleague [Mr Johnson] he obviously didn’t know what was going on so he tried to get the boy to stop, and Dr Pelling is being openly threatening, and he’s just said to my colleague, ‘It’s got nothing to do with you, mate. Keep out of it. I’m a friend of the family. I can do what I like.’"
[42]Dr Pelling’s account is not very different. He said that Mr Johnson did approach (in what he describes as an intimidating manner) "obviously also attempting to listen" and again objected to his speaking with FM. He said that he moved to the end of the corridor, accepting that he said something like the words immediately attributed to him by Mrs Cheesley. He said he had no intention of leaving and suggests that he was acting under a temporary delegated parental responsibility on behalf of AM under section 2(9) of the Children Act 1989 to take reasonable appropriate care of FM. He warned Mr Johnson that he might face proceedings and asked for his name.[43]There is an issue about whether Mr Johnson followed Dr Pelling and FM to the far door of this comparatively small corridor or whether he preceded him and tried to stand in his way. I do not believe that it matters. I accept that there were words between Dr Pelling and Mr Johnson and I accept that Mr Johnson was concerned that Dr Pelling might be trying to take FM away at a time when he understood that he was going with his mother (not having been told anything of what had happened in court when Singer J resumed the hearing). Mr Johnson’s last instruction was to assist in putting into place the judge’s order whereby AM kept away from FM so that the boy might be encouraged to go with his mother; his concern was therefore entirely legitimate. If Dr Pelling had explained what had happened and encouraged Mr Johnson to confirm the position with the court, that is doubtless what would have happened (as it did, at the behest of Mrs Cheesley). I do not accept that he was specifically trying to eavesdrop although that might have been the perception; it may be significant that when, cross examined, FM described him as pacing the area, and hovering.[44]In the circumstances as I find them to be, I do not believe that Mr Johnson behaved improperly in any way. There was nothing about what he did that constitutes the tort of misfeasance and no question, in my judgment, of his breaching any of Dr Pelling’s rights under Article 8 of the Convention. I ought to add that even if I had taken a different view about what happened, I am far from satisfied that Dr Pelling’s Convention rights would have been infringed. Damages[45]I turn to the question of damages for the incident which, on the balance of probabilities, I have found proved. Damages for assault are intended to compensate Dr Pelling for the physical discomfort, distress and inconvenience of the assault and for any pain, suffering and loss of amenity which he sustained. It is sufficient simply to identify those features of the award to demonstrate how inappropriate to the circumstances of this case almost each heading is. Damages for misfeasance are to compensate the Claimant for the physical discomfort, distress and inconvenience of being subject to deliberate wrongdoing at the hands of one or more public officials. Mr Hoskins submitted that if I found an assault, an appropriate measure of damages should be £50. I am prepared to accept that figure: it should certainly not be higher.[46]Dr Pelling also claims aggravated and exemplary damages. Aggravated damages are intended to provide a Claimant with additional compensation there are aggravating features of the case such that the basic award would not be sufficient compensation. Aggravating features, which relate to the initial incident, can include malicious or oppressive behaviour by the relevant witness showing a high-handed, insulting, malicious or autocratic manner. It can include the way in which the litigation has been conducted. Taking hold of Dr Pelling was tortious and damages have been awarded as a consequence. I believe that such damages are sufficient compensation. Dr Pelling has been entitled to make the point that he has made but I do not find that Mr Johnson was high-handed, insulting, malicious or autocratic: in his efforts to ensure that his perception of the Judge’s order was not breached, he stepped over the boundary.[47]Exemplary damages are intended to punish a defendant in the event of oppressive or arbitrary behaviour by a public official (or, in certain circumstances, others) which deserves an exceptional remedy. Suffice to say that there is nothing in what Mr Johnson did which could be characterised as oppressive or arbitrary conduct sufficient to justify exemplary damages. Conclusion[48]The upshot is that, having established liability for the tort of assault, Dr Pelling succeeds in the sum of £50.

Cited in 1 later judgment