Mohidin & Ors v Commissioner of the Police of the Metropolis & Ors [2016] EWHC 105 (QB)

Case No HQ12X03666 AND HQ12X04814[2016] EWHC 105 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/01/2016
Before
MR JUSTICE GILBART
Between
OMAR BARRAQ MOHIDINClaimantBASIL KHANClaimantAHMED HEGAZYClaimantCOMMISSIONER OF THE POLICE OF THE METROPOLISClaimantMARK JONESClaimantSTEVEN WHITEClaimantWILLIAM WILSONClaimantNEIL BROWNClaimantOMAR BARRAQ MOHIDIN BASIL KHAN And AHMED HEGAZY First Claimant Second Claimant Third Claimant- and -COMMISSIONER OF THE POLICE OF THE METROPOLIS-and-MARK JONES STEVEN WHITE WILLIAM WILSON NEIL BROWN Defendant Third Party Forth Party Fifth Party Sixth Party
Phillippa Kaufmann QC and Raj Desai (instructed by Bhatt Murphy, Solicitors) for First and Second ClaimantsAlison Gerry (instructed by Imran Khan and Partners incorporating Christian Khan Solicitors) for Third ClaimantJohn Beggs QC and Cecily White (instructed by Directorate of Legal Services, New Scotland Yard) for DefendantJohn Hardy QC and Stephen Morley (instructed by Slater and Gordon, Solicitors) for Third to Sixth Parties
Judgment
[1]With the agreement of the parties, I am dealing with this matter on the basis of substantial and helpful written submissions.[2]I shall deal with this matter as follows:(a) (A) Introduction: the main judgment and the orders made since(b) (B) The claims for indemnity and contribution(c) (C) The case for the Defendant(d) (D) The case for the Additional Parties(e) (E) The responses for the Claimants(f) (F) Response by Defendant(g) (G) Discussion and Conclusions (A). Introduction: the main judgment and the orders made since[3]On 2nd October 2015 my judgment (“the main judgment”) was handed down in respect of the claims made by the three Claimants against the Defendant Commissioner (Mohidin & Anor v Commissioner of the Police of the Metropolis & Ors [2015] EWHC 2740 (QB)). I dismissed the claim of the Third Claimant but gave judgment for the First and Second Claimants against the Defendant.[4]The claims by all three Claimants related to an incident involving officers deployed in a TSG carrier of the Defendant on 1st June 2007. The Additional Parties were four of the six police officers so deployed. Although three of them (the Third Party Mark Jones, the Fifth Party William Wilson and the Sixth Party Neil Brown) are no longer police officers, I shall where appropriate refer to them by the ranks they then held. As set out at paragraph 4 of my main judgment I set out the nature of the claims, in the order of occurrence: i) Omar Mohidin alleged that he was taken into the van and there assaulted by the Third Party PC Mark Jones, who also swore at him and abused him verbally; ii) Ahmed Hegazy alleged that he was unlawfully searched while on the pavement, and then wrongfully arrested by the Sixth Party PC Neil Brown, handcuffed by him and put on the floor of the van by him and by the Fourth and Fifth Parties PC Steven White and Sergeant William Wilson with unreasonable force, where he was further assaulted. He said that at the Police Station he was strip searched unnecessarily. Ahmed Hegazy also asserted that PC Brown swore at him, and that he was racially abused; iii) Basil Khan alleged that he was wrongfully arrested, whereupon he was handcuffed and then, when placed in the van, was assaulted by both PC Jones and Sergeant Wilson. He was sworn at and abused. He was then forced to the floor, and then made to kneel within the van in handcuffs, both during the journey to the Police Station and then for some 20 minutes while he waited to be taken from the carrier into the custody suite. He was strip searched, which it is alleged was in breach of the relevant PACE code as he was then only 16 years old. iv) Each of the three claimed damages, including aggravated and exemplary damages, for false imprisonment and assault. In addition Ahmed Hegazy claimed damages for direct discrimination under section 1 of the Race Relations Act 1976 and for breaches of Articles 3, 8 and 14 of the European Convention on Human Rights (“ECHR"). All the claims were made against the Defendant Commissioner.[5]The Defendant had issued claims against the Additional Parties pursuant to section 1 of the Civil Liability (Contribution) Act 1978 (“CLCA 1978”) and successfully applied to join them as parties pursuant to CPR Part 20.7. They therefore became parties to the two actions by virtue of CPR Part 20.10, but were not sued as Defendants by the Claimants or any of them, nor joined as Defendants to the Claimants’ claims or any of them.[6]In the event, I dismissed the claim of the Third Claimant (Ahmed Hegazy) against the Defendant, but gave judgment for the First and Second Claimants (Omar Mohidin and Basil Khan) against the Defendant. I awarded Omar Mohidin damages of £2500, and Basil Khan damages of £11,950. At paragraph 317 of the main judgment, I set out a summary of my findings on the allegations made:
“i) Omar Mohidin was forced into the van, and thus the subject of a battery, and falsely imprisoned for a few minutes, during which time he was abused verbally by PC Jones, including racist abuse; ii) While the search of Ahmed Hegazy was unlawful, his violent conduct and threats were such that he was then lawfully arrested. Any injuries he sustained were as a result of his unlawfully resisting arrest. He was not assaulted. He was not falsely imprisoned. Ms Gerry expressly conceded that the claim under the Race Relations Act stood or fell with the claims for assault and false imprisonment. I find in any event that he was not the subject of racist abuse; iii) Basil Khan was not lawfully arrested, as he had not uttered threats to kill. He did not make any threats to PC Jones, or assault him, but was abused and struck by Sergeant Wilson, and then struck and abused by PC Jones, who also grabbed him round the neck, causing difficulties in breathing. He was then forced by PC Jones to kneel with his hands in handcuffs behind his back, both within the van en route to the Police Station for about 5 minutes, and then thereafter for about 20 minutes without any justification whatever, but for the purposes of humiliation. Sergeant Wilson chose to allow PC Jones to behave as he did in the van, and was also a party to Basil Khan's continued humiliation in having to kneel handcuffed in the van. It follows that he was falsely imprisoned until his release the following day. I find that PC Jones used racist abuse towards him. His being strip searched only came about because PC Jones had given false information about the reasons for his arrest. I accept that the Desk Sergeant genuinely thought that he was old enough to be strip searched.”
[7]As set out above, I found that PC Jones was solely responsible for what happened to Omar Mohidin. In the case of Basil Khan, I found that PC Jones was responsible for his wrongful arrest. Thereafter both the Fifth Party Sergeant Wilson and the Third Party PC Jones assaulted him. I also found that what PC Jones did to him in the van was done with the knowledge of Sergeant Wilson, who was also a party to Basil Khan’s further humiliation through his being made to kneel on the floor while handcuffed. His further detention at the Police Station flowed from his false arrest, but I also found that PC Jones made false claims to the Desk Sergeant about what Basil Khan was alleged to have done.[8]The awards of damages made to the successful Claimants are described in the main judgment at paragraphs 360-392, and in particular paragraphs 362-3 (the assessment of damages for their false imprisonment) and 376-378 (damages for the humiliation and distress suffered by Omar Mohidin) and 379-384 (damages for the injury, humiliation and distress suffered by Basil Khan).[9]Since judgment was given, orders have been made as follows as between the three Claimants and the Defendant. Neither was the subject of dispute. It should be noted that the principal terms were put before the Court by consent. The reservations in Paragraphs 8 and 3 respectively were added by the Court. i) Actions by First and Second Claimants (Claim HQ12XO3666) “For the reasons contained in the judgment handed down on 2 October 2015, it is ordered that: 1. Judgment is entered for the Claimants Omar Mohidin and Basil Khan. 2. The First Claimant is awarded the sum of £2,750 (comprising damages in the sum of £2,500 and an additional amount of 10% pursuant to CPR36.17 (4) (d)). The Second Claimant is awarded the sum of £13,145 (comprising damages in the sum of £11,950 and an additional amount of 10% pursuant to CPR 36.17(4) (d)). 3. The Defendant is to pay interest on all damages at the rate of 2% per annum in the period from 25 March 2009 (the date of service of the claim form) until 22 March 2012. The Defendant is to pay interest on all damages in the period thereafter at 10.5% per annum pursuant to CPR 36.17(4) (a). 4. The aforesaid awards and interest to be paid by the Defendant to the Claimants within 14 days of the date of this Order. 5. The Defendant is to pay the Claimants’ costs in the period until 22 March 2012 on the standard basis. The Defendant to pay the Claimants’ costs thereafter on the indemnity basis together with interest on those costs at the rate of 10.5% per annum pursuant to CPR 36.17(4)(b) and (c). 6. Within 35 days of the date of this Order the Defendant is to pay to the Claimants on account of costs 50% of the costs set out in the “Estimate of First and Second Claimants’ Costs” dated 11 May 2015 filed by the Claimants with the listing questionnaire, pursuant to CPR 44.2(8). 7. There be a detailed assessment of the Claimants’ costs in accordance with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) (Amendment) Regulations 2013, the Claimants being persons in receipt of services funded by the Legal Services Commission. 8. For the avoidance of doubt, nothing in this Order relates to any of the following:a. the claim of the Claimant Ahmed Hegazy against the Defendant in claim number HQ12X04814, or any orders relating thereto;b. the claims under part 20 CPR by the Defendant against any or all of the Additional Parties made in the proceedings in this claim, or any orders relating thereto;c. the claims under part 20 CPR made by the Defendant in the Claimant Ahmed Hegazy’s claim HQ12X04814, or any orders relating thereto.” ii) Action by Third Claimant (Claim HQ12XO4814) “For the reasons contained in the judgment handed down on 2nd October 2015, it is ordered that: 1. Judgment is entered for the Defendant. 2. The Claimant do pay the Defendant’s costs subject to detailed assessment if not agreed, subject to a determination of the Claimant’s ability to pay those costs pursuant to s. 26 Legal Aid, Sentencing and Punishment of Offenders Act 2012, any such liability not to be enforced without the leave of the Court. 3. For the avoidance of doubt, nothing in this Order relates to any of the following: a. the claim of the Claimants Omar Mohidin and Basil Khan against the Defendant in claim number HQ12XO3666, or any orders relating thereto; b. the claims under part 20 CPR by the Defendant against any or all of the Additional Parties made in the proceedings in this claim, or any orders relating thereto; c.

(B) The claims for indemnity and contribution

[10]The Defendant accepts that he must pay the reasonable costs of the Fourth and Sixth Parties (PC Steven White and PC Neil Brown) of their defending the Defendant’s claims against them.[11]The Defendant contends that in the case of the Third and Fifth Parties (PC Mark Jones and Sergeant William Wilson): i) The Third Party Mark Jones should indemnify the Defendant for the damages and costs the Defendant is liable to pay to and in respect of the First and Second Claimants (Omar Mohidin and Basil Khan) in the following proportions: a) 100% of the damages and costs payable to and in respect of the First Claimant; b) 75% of the damages and costs payable to and in respect of the Second Claimant. ii) The Fifth Party William Wilson should indemnify the Defendant for the remaining 25% of the damages and costs he is liable to pay to and in respect of the Second Claimant. iii) If the split of 75/25% is not accepted, an alternative split of 67/33% is proposed.

(C) The case for the Defendant

[12]The Defendant Commissioner was sued on the basis that those responsible for the torts inflicted on the Claimants were officers of the Metropolitan Police. By s 88 of the Police Act 1996 (“PA 1996”) and s 32 of the Race Relations Act 1976, he is liable in respect of any unlawful conduct and/or racial discrimination by any of his officers in the performance or purported performance of their functions. However, by virtue of sections 1 and 6 of CLCA 1978 he may recover a contribution from the relevant Additional Parties on the basis that they are liable in respect of the same damage. The claim may be made notwithstanding the fact that judgment has been entered against him (see section 3 of CLCA1978).[13]The Defendant did not make a positive case against the Claimants in the two main actions. In his claim for a contribution or indemnity, he stated (see for example paragraphs 2-3 of the Additional Claim made by the Defendant in the case of Omar Mohidin and Basil Khan) that he was unable either to admit or deny the main allegations made relating to the conduct of the police officers, but if he were to be held liable, he claimed an indemnity (or alternatively a contribution) in respect of the claims, and to his costs of defending the claim and of bringing the Additional Claim against the Additional Parties. He now contends in the context of that claim that there were clear findings in the main judgment at paragraphs 317 against the Third Party PC Mark Jones and the Fifth Party Sergeant William Wilson, as set out above, that they were responsible for the unlawful tortious conduct there described. Reference is also made to paragraph 300 of the main judgment, where I found that both had lied about the events in question.[14]The Defendant explains the course of action he adopted by saying that this was a case where the Defendant was unable to assert a positive case about what had happened in the van, as one of his serving officers (PC Onwugbonu) gave evidence which supported the case for the three Claimants, and the Additional Parties were all also serving officers at the time. One was still a serving officer, who did not support the case for the three Claimants (PC Steven White), as were other officers on the van (PC Giles Kitchener and PC Simon Prout) who were not joined as Additional Parties.[15]However the Defendant contends that while he adopted a neutral stance on the issue of liability to the Claimants, he was entitled to use the additional claims procedure under CPR Part 20, so that he could be indemnified (in whole or in part) under s 1 CLCA 1978 against any liability found by the Court for any wrongful acts committed by any of the Additional Parties, together with the costs of defending such claims.[16]The Defendant contends that i) Principle of indemnity No other officer was implicated in the false imprisonment and/or racially aggravated assault of the First and Second Claimants. He says that it is just and equitable for responsibility for the damage suffered by the First and Second Claimants to be attributed to the Third and Fifth Parties alone. He contends that while I found that PC Giles Kitchener had lied, he had done so only to conceal the wrongdoing of the Third and Fifth Parties; ii) Degree of indemnity and apportionment between the Third and Fifth Parties The Defendant argues that a) in the case of the First Claimant, the Third Party Mark Jones should make a 100% indemnity as to damages, costs and interest. He was solely responsible for the unlawful treatment of Omar Mohidin; b) in the case of the Second Claimant, the Third and Fifth Parties should make a like indemnity, but split in the proportions of 75%/25% between the Third Party Mark Jones and the Fifth Party William Wilson respectively, for the reasons set out in sub-paragraph (e); c) alternatively to (b), the split could be in the proportions of 67%/33% between the Third Party Mark Jones and the Fifth Party William Wilson respectively, for the reasons set out in the next paragraph. d) In the case of the indemnity in the matter of the unlawful conduct towards the Second Claimant, the Defendant argues that the proportional split of the indemnity should be weighted so that the Third Party Mark Jones pays the greater amount. e) It is said by the Defendant that the 75%/25% split is appropriate. Reliance is placed on the following findings: i) Sergeant William Wilson struck and abused Basil Khan initially; ii) PC Mark Jones then struck and abused him, and also grabbed him around the neck causing him to have difficulty in breathing; iii) PC Mark Jones then forced Basil Khan to kneel in handcuffs for approximately 25 minutes in total, for the purposes of humiliating him; iv) Sergeant William Wilson allowed PC Mark Jones to behave in this manner, and was party to his continuing humiliation of Basil Khan by making him kneel while handcuffed, both on the way back to the Police Station, and thereafter after its arrival. v) The conduct of PC Mark Jones was more culpable and causative of injury than that of Sergeant Wilson, as it included more serious physical violence, racist abuse as well as general abuse, and a more sustained use of violence and abuse. f) Alternatively, if the Court considers that the apportionment should reflect the “supervisory responsibility” of Sergeant Wilson, who participated in the abuse and allowed it to continue, a possible apportionment would be (Jones/Wilson) of the order of 67%/33%. iii) Contribution to costs a) So far as costs are concerned, the Defendant contends that a payment may be ordered- see Parkman Consulting Engineers Ltd v Cumbrian Industrials Ltd [2001] EWCA Civ 1621 at [123] per Henry LJ. Reference is also made to Bank of Ireland v Faithful and Gould Ltd [2014] EWHC 2217 (TCC) per Edwards-Stuart J citing at [258] Ramsey J in Mouchel Ltd v Van Oord (UK) Ltd [2011] EWHC 1516. The Defendant also referred me to the judgment of Jackson LJ in Chief Constable of Hampshire v Southampton City Council [2014] EWCA 1541 at [43]. b) The Defendant contends that the recovery by a Defendant of a contribution to costs is an ancillary order (see Chief Constable ofHampshire v Southampton), made at the discretion of the Court. under s 51 of the Senior Courts Act 1981 and CLCA 1978. The Defendant makes three points on the assessment of costs: i) the evidence on similar fact was found to be of very little weight in determining what happened in the incident (see main judgment paragraph 28). Some of it (that relating to incident OG1/07/410 referred to in the judgment of Sir David Eady [2014] EWHC 235 (QB) at [30]-[34]) was not adduced at the trial. Much time was spent by the Defendant on discovery and disclosure relating to similar fact evidence, but that should restrict the extent of costs recoverable by the Claimants; ii) the Claimants and Additional Parties relied on what happened in the subsequent investigation of their complaints (NB in some cases the complaints were made by the relatives of the Additional Parties). The unsuccessful parties (the Third Claimant and the Third and Fifth Parties) should bear the costs associated with these satellite issues; iii) If the successful Additional Parties (PCs Steven White and Neil Brown) seek their costs against the Third Claimant, the Defendant has undertaken to pay the reasonable costs not recovered from the Third Claimant. The Defendant also points out that the Third and Fifth Parties have been represented in the proceedings through the Police Federation. iv) Order sought The Defendant therefore seeks an order that 1. The Third Party indemnify the Defendant for the damages and costs the Defendant is liable to pay to and in respect of the First and Second Claimants (claim no. HQ12XO3666) in the following proportions:a. 100% of the damages and costs payable to and in respect of the First Claimant;b. 67% (or alternatively 75%) of the damages and costs payable to and in respect of the Second Claimant. 2. The Fifth Party indemnify the Defendant for the remaining 33% (or alternatively 25%) of the damages and costs he is liable to pay to and in respect of the Second Claimant (claim no. HQ12XO3666). 3. The Defendant’s costs, for which the Third and Fifth Parties are liable in the same proportion as the damages and costs payable to the First and Second Claimants, to be subject to detailed assessment if not agreed. 4. The Defendant to pay the Fourth and Sixth Parties’ reasonable costs of defending the Additional Claims against them.

(D) The case for the Additional Parties

[17]The Additional Parties contend as follows i) Introduction and Summary a) In the case of the claim by the First Claimant Omar Mohidin, the claim for an indemnity or contribution must be dismissed as against the Fifth Party Sergeant Wilson. The claims for an indemnity or contribution relating to the claim of the Third Claimant must also be dismissed against the Third Party PC Mark Jones and the Fifth Party Sergeant Wilson. The claims for an indemnity or contribution against PCs Steven White and Neil Brown (the Fourth and Sixth Parties) must also be dismissed. In all those cases the Defendant should pay their reasonable costs. b) It is agreed that there is no legal impediment to the Court ordering the payment of an indemnity or contribution. It is noted that by section 2(1) of CLCA 1978, the amount of any contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question. It is noted also that the court has a complete discretion including the power to exempt any person from liability to make a contribution, or to direct that a contribution from any person shall amount to a complete indemnity. c) It is submitted that it would not be just or equitable to make any order against either the Third or Fifth Parties, PC Mark Jones or Sergeant William Wilson. ii) Police Act 1996 a) By s 88 of Police Act 1996 (as amended) “88 Liability for wrongful acts of constables.(1) The chief officer of police for a police area shall be liable in respect of [any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in the case of a tort,] be treated for all purposes as a joint tortfeasor.(2) There shall be paid out of the police fund— (a) any damages or costs awarded against the chief officer of police in any proceedings brought against him by virtue of this section and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and (b) any sum required in connection with the settlement of any claim made against the chief officer of police by virtue of this section, if the settlement is approved by the local policing body.(3) Any proceedings in respect of a claim made by virtue of this section shall be brought against the chief officer of police for the time being ……………..(4) A local policing body may, in such cases and to such extent as appear to it to be appropriate, pay out of the police fund— (a) any damages or costs awarded against a person to whom this subsection applies in proceedings for any unlawful conduct of that person, (b) any costs incurred and not recovered by such a person in such proceedings, and (c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.(5) Subsection (4) applies to a person who is— (a) a member of the police force maintained by the police authority, (b)……………………………………………………………… (c)…………………………………………………………… (6)- (8A)………………………………………………………… (a) any damages or costs awarded against the chief officer of police in any proceedings brought against him by virtue of this section and any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings; and (b) any sum required in connection with the settlement of any claim made against the chief officer of police by virtue of this section, if the settlement is approved by the local policing body. (a) any damages or costs awarded against a person to whom this subsection applies in proceedings for any unlawful conduct of that person, (b) any costs incurred and not recovered by such a person in such proceedings, and (c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings. (a) a member of the police force maintained by the police authority, (b)……………………………………………………………… (c)…………………………………………………………… b) It is submitted that thereby those who suffer wrong at the hands of a police officer are guaranteed redress against Chief Officers. It is submitted that in some cases the Chief Constable concerned will in many cases not seek an indemnity or contribution from officers who have been guilty of misconduct: e.g. as in Thompson and Hsu v Commissioner of Metropolitan Police [1998] QB 1994, where the conduct of the officers was described by the Court of Appeal as “outrageous and totally inconsistent with their responsibilities.” It is submitted that Chief Officers do not routinely seek contributions or indemnities from individual officers for reasons that are obvious; that police officers perform an important public service that requires them to deal with many situations involving the potential for confrontation and dispute; that police officers should be able to carry out their duties without worrying about the possibility of being held personally financially liable for their dealings with members of the public that do not go according to plan. c) If officers did not have the confidence that they had the support of their Chief Constable, there is a real risk that they would recoil from dealing with confrontational and difficult situations, thus diminishing the effectiveness of policing. Individual officers would remain subject to the sanction of the Police (Conduct) Regulations, the criminal law (as happened here) and the risk of forfeiture of pensions in the case of some criminal offences. Section 88(4) of the PA 1996 shows that a local policing body is enabled to reimburse a police officer for damages or costs awarded against him, or any sum required in payment of settlement of a claim. d) Reference is made to the Home Office Guidance (HOC 43/2001) provided to Chief Officers explaining why police officers can normally expect not to be held personally liable for their actions whilst on duty:
“It is important that police officers should be able to carry out their duties in the confidence that their police authority will support them by providing financial assistance in legal proceedings taken against them and progressed by them, if they act in good faith and exercise their judgment reasonably…….Police Authorities will need to decide each case on its own merits, but subject to that there should be a strong presumption in favour of payment where these criteria are met,” e) The question of any payment out under section 88(4) of PA 1996 by the local policing body (The Mayor’s Office for Policing and Crime) has yet to be determined. However the experience of those representing the Additional Parties is that police officers whose actions, often in difficult circumstances, have gone too far, can expect to have judgments against them settled by their Chief Officer and not to have to face any personal financial liability. iii) The Defendant Commissioner’s responsibilities a) All seven of the officers in the TSG carrier were engaged in their duties as police officers. None of the Additional Parties were engaged “on a frolic of their own”
. Messrs Mark Jones and William Wilson were “engaged in core street policing duties at the time.” The facts in KD v Chief Constable of Hampshire [2005] EWHC 2250 were of a different order, where the Defendant officer had engaged in inappropriate sexual conduct when taking a statement from a victim, and had involved misconduct over several months, probably including some off duty. b) In this case the fact that they were acting as police officers was a reason not to order an indemnity. If individual officers were ordered to make payments in a case such as this, officers might have to take out insurance, which would not be in the interests of policing. iv) The facts of the case a) If that primary position is rejected, the Defendant should satisfy some proportion of the claims for damages and/or costs. b) In addition to the points made in their primary case, the Additional Parties contend that other officers on the TSG carrier were also at fault: i) PC Onwugbonu did not intervene when asked to do so by Mohidin, and was in the back of the carrier when PC Mark Jones dealt with Basil Khan; ii) PC Kitchener was also present in the back of the carrier at that point, and was found in the main judgment to have cooperated in the keeping of Basil Khan on his knees; iii) PC Kitchener was responsible with PC Mark Jones for the strip search of Basil Khan at the Police Station; iv) Sergeant Watkinson, the desk sergeant, failed to ascertain Basil Khan’s age before he was strip searched. v) The means of the Additional Parties a) Both Mark Jones and William Wilson are of modest means, and their making a contribution to the damages would be onerous for them. Witness statements as to means were filed by both; b) Mark Jones has been medically retired from the Police Service since January 2013. He is divorced, and lives on £ 1610 per month net after tax. He is unfit for work. He pays £ 300 per month to his daughters and lives in rented accommodation. His outgoings are £ 1513 per month. They include repayment of a loan to buy a car (£261 per month). He has no capital ; c) William Wilson has retired from the Police. He lives alone and has a pension of £ 1798 per month, net after tax. He earns £ 750 per month net of tax. He pays £ 1840 per month to his former wife in maintenance payments. He has a small credit balance in his bank account. vi) Costs The Court has a discretion pursuant to CPR 44. The following should be noted: a) The claimants’ reliance on similar fact evidence was “utterly unhelpful.” A two day hearing took place in December 2013 to consider its admissibility. As recorded in the main judgment, it involved a substantial amount of material; b) it required a great deal of work before the trial on the part of the Additional Parties and the Defendant; c) the actual level of costs (in excess of £ 500,000 in all) is excessive given the total award of damages of £ 14,450, or about 3% of that figure; d) there should be no award against the Additional Parties of the Defendants’ costs. The issue of claims under Part 20 was disproportionate in comparison to the likely level of any damages. The Third Claimant should pay the Additional Parties their reasonable costs of defending that part of the claim: the Defendant’s undertaking is noted. vii) Conclusion Therefore it is submitted that a) itwould be just and equitable for the Defendant to pay all the damages awarded in this case, or, in the alternative, a proportion of those damages; b) the unsuccessful Third Claimant and/or the Defendant should pay the reasonable costs of the Additional Parties incurred in defending the Part 20 Claim relating to the Third Claimant; c) The Third Claimant and/or Defendant should pay the Fifth Additional Party William Wilson’s reasonable costs of defending the Part 20 Claim relating to the First Claimant Omar Mohidin; and d) It would be just and equitable for the Defendant to pay the reasonable costs of the successful Claimants, or, in the alternative a proportion of those costs.

(E) The responses for the Claimants

[18]The First and Second Claimants submit that the arguments raised by the Defendant and Additional Parties on whether costs were properly incurred and were proportionate, should be addressed at the stage of detailed assessment pursuant to CPR 44.3-4. That is particularly apt when the Defendant has consented to the award of costs against him in relation to the claim, and in some measure on an indemnity basis. Arguing such matters at this stage would be disproportionate and would require an oral hearing of some two days.[19]It is also contended that the points taken are misconceived: i) it is wrong to argue that because the judge placed limited weight on evidence (in this case the similar fact evidence) it therefore follows that reliance on such evidence was unreasonable. The similar fact evidence was admissible (and ruled as such by Sir David Eady) and no objection was taken at the trial on its admissibility; ii) the Claimants’ way of dealing with the evidence (by submission of the material as written statements under the hearsay provisions) saved court time and was a proportionate way of dealing with it; iii) the Defendant and/or Additional Parties could have sought to exclude the material as irrelevant. They did not do so, but sought to counter it by the adduction of evidence in rebuttal; iv) the point taken by the Defendant that there was evidence called on the conduct of the Defendant’s investigation is not accepted. The material was placed before the Court by the Defendant in response to the Additional Parties’ extensive criticisms in their evidence of the conduct of that investigation; v) as costs have been awarded on an indemnity basis, proportionality is not in issue. If it is, it should be dealt with at the assessment stage, and the First and Second Claimants must be able to submit a detailed bill of costs for it to be considered, and may require the assistance of specialist costs counsel. It will require another day of court time to be addressed. It would be disproportionate to consider proportionality at this stage.[20]The Third Claimant submits that i) he should not be required to pay any costs other than those of the Defendant in the successful resistance of his claim; ii) no additional costs were incurred by the Third Party Mark Jones in dealing with the similar fact evidence relied on by the Third Claimant against the Third Party Mark Jones as it had to be dealt with in the context of the claims of the First and Second Claimants as well. So far as the Fifth Party William Wilson is concerned no allegations were made against him of false imprisonment, but only of assault and racial discrimination; iii) it would be wrong to order the Third Claimant to pay any part of the costs of the Fourth and Sixth Parties PCs Steven White and Neil Brown. While the Third Claimant had failed in his allegation that his restraint and detention were unlawful, he had succeeded in showing that the original search was unlawful (see main judgment at [312]); iv) at the outset of the trial the Third Claimant stated through his counsel that he was not pursuing his claims under the Human Rights Act separately; v) the Third Claimant’s case is publicly funded and he does not have the means to pay the costs of the Additional Parties or of the Defendant. The Order already made cannot be enforced without leave of the court; vi) should an order be made in favour of the Additional Parties it should be limited to the costs incurred by the Fourth and Sixth Parties (Messrs White and Brown) in resisting the claims for assault, false imprisonment and racial discrimination; vii) any claims on the reasonableness or proportionality of the costs incurred by the Third Claimant must be the subject of oral submissions.

(F) Response by Defendant

[21]In response to the Additional Parties’ submissions the Defendant makes the following submissions; i) Introduction a) the Defendant accepts that he is liable to pay the reasonable costs of the Fourth and Sixth Parties (Messrs White and Brown) in resisting the Additional Claims made against them. He also accepts that he is liable to pay the Additional Parties’ “reasonable costs of defending the claim brought by the….. (Third) Claimant to the extent that the Third Claimant is unable to pay them.” b) he maintains his claims for an indemnity in respect of damages and costs against the Third and Fifth Parties (Messrs Jones and Wilson) arising from the successful claims of the First and Second Claimants. He does not accept that he is liable to pay any costs to the Fifth Party in respect of the First Claimant Mohidin. ii) General Principle It is agreed that police officers can usually expect not to be held personally liable for actions taken by them on duty, and that, were that not to be the case, there could be adverse consequences for policing. However this case is different because of the evidential conflict between his own officers. iii) Policing Duties a) Liability under section 88 of PA 1996 would arise whether or not the act of the police officer was intentional or for his/her own benefit. As in cases relating to the vicarious liability of an employer (which is the appropriate test to apply to this issue under s 88 (see Clerk and Lindsellon Torts 21st Ed, fn59 citing Gross LJ in Allen v Chief Constable of Hampshire [2013] ECA 967 at [30]) the question is whether the conduct was so clearly connected with the employee’s employment (and thus officer’s functions) that it would be fair and just to hold the employer (chief of police) vicariously liable: see Lister v Hesley Hall Ltd [2001] UKHL 22 per Lord Steyn at [28] and Lord Millett at [70]. b) The conduct in question here was one in respect of which, had the officers been sued personally, they would be “liable in respect of the same damage” – see CLCA 1978 sections 1(1) and 6(1). c) The fact that in KD v Hampshire the misconduct was sexual in nature does not justify a distinction in law. The actions here (false imprisonment, racially aggravated assault involving both physical and verbal abuse, and deliberate humiliation) amounted to serious misconduct, as deserving of condemnation or punishment as sexual misconduct. d) It was not merely that the conduct was that of police officers which rendered the case a serious one. But that fact renders the Defendant vicariously liable for the conduct, and also entitled to seek contribution/indemnity from them. The fact that other officers may have committed torts as well is irrelevant when no claims had been brought in respect of their actions. e) Sergeant Watkinson (the custody sergeant) was found in the judgment only to have searched the Second Claimant because the Third Party PC Jones had given him false information. iv) Means and costs issues a) The means of the Third and Fifth Parties have no bearing on the court’s task because the Police Federation is meeting any liability for costs. b) The Defendant agrees with the Additional Parties about the quantum of the costs claimed by the Claimants, which will be a matter for detailed assessment. v) Conclusions a) The Additional Parties’ argument that the Defendant should bear some part of the burden of damages and costs is not supported by anything to identify the proportion claimed. b) The claims for indemnity and contribution are maintained. vi) Additional Submission on indemnity costs I asked the parties to make submissions dealing with the issue of whether any indemnity or contribution as to costs payable by the Third or Fifth Parties should reflect the fact that some part of the costs which the Defendant had agreed to pay the First and Second Claimants were to be assessed on an indemnity basis. (See paragraph 5 of the Order relating to the First and Second Claimants’ claim, at paragraph 9 (i) above). The Defendant submitted that it should do so. It is contended that the agreed award of indemnity costs came about because the Defendant had rejected a Part 36 offer by the First and Second Claimants, made after the Additional Parties had been joined as parties. It is submitted that an award of indemnity costs is proper where a Defendant fails to accept a Part 36 offer and then the Claimants “ beat their own offer at trial” (see Chadwick LJ in McPhilemy v Times Newspapers Ltd (No 2) [2001] EWCA Civ 933 at [9]). The purpose of an indemnity award is not to punish Defendants but to encourage parties to settle meritorious claims brought against them.

(G) Discussion and Conclusions

[22]I shall deal firstly with the issues about whether or not there should be an indemnity or contribution made by the Third and Fifth Parties (Mark Jones and William Wilson). I shall then deal with the issues that have arisen about costs.[23]The starting point is to recall that these were proceedings brought by the three Claimants against the Defendant. He then elected to make claims against the Additional Parties pursuant to CLCA 1978 and Part 20 of CPR. This is not a case where the Additional Parties have been brought into the action as Defendants to the claims of the Claimants, and as the Additional Parties’ submissions point out, joinder of the police officers concerned in such a case via a CLCA 1978 process is by no means the sure consequence of a claim being made against a Chief Constable or (in London) the Commissioner.[24]It is of course inevitable in a case such as this, where allegations of misconduct are made against named officers, that if CLCA 1978 proceedings are taken against them, then their participation in the action, including the trial process, will be substantial. It was an obvious consequence of their being made the subject of indemnity and contribution notices, and joinder under CPR Part 20 that the proper conduct of their case would involve their challenging the cases made by the Claimants. The Defendant must have been alive to that when deciding to issue the claims for indemnity or contribution within the action as it proceeded.[25]There is agreement between the Defendant and the Additional Parties that the law permits the claims made against them by the Defendant. That must be so given the terms of sections 1 and 6 of CLCA 1978. The First and Second Claimants could have sought redress from the Additional Parties, and on the basis of the findings made in the main judgment, the First Claimant Omar Mohidin would have succeeded in obtaining judgment against the Third Party Mark Jones, and the Second Claimant Basil Khan would have succeeded in doing so against both the Third Party Mark Jones and the Fifth Party William Wilson. Further, the Defendant could have awaited the outcome of the proceedings brought by the Claimants, and then issued his claim under CLCA 1978.[26]It follows in my judgment that the test to be applied is that in section 2 of CLCA 1978, whose terms bear repeating:
“2 Assessment of contribution. (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question. (2) Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”
[27]While the issue of what is just and equitable is relevant, it is so within the confines of the discretion set out in subsection (1) – i.e. having regard to the extent of the person’s responsibility for the damage in question. That is reflected in the passage, relied on by the Defendant, in the judgment of Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426@445H:
“the extent of a person’s responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance.”
[28]In my judgment, the current means of the persons from whom the indemnity or contribution is sought cannot be relevant to the issue of the indemnity or contribution to the damages claim. Had the Claimants sued the Additional Parties as Defendants, it would have been no answer to the claim that the Additional Parties were indigent. It may be a reason why a commercial decision would have been taken not to issue proceedings, but it cannot affect the entitlement of a party to a judgment if the relevant cause of action and infliction of recoverable damage are proved.[29]I am invited to address how it was that the Additional Claims came about. The Defendant has explained why he adopted a neutral stance. In my judgment, he could have decided to rely on the evidence of the Claimants and PC Onwugbonu, as he did for the purposes of the criminal trial, or relied on that of and called by the Additional Parties. Had he done the former, he would have been bound to concede liability in the action, albeit perhaps not the quantum of damages sought, and he could then have issued proceedings for an indemnity or contribution. Had he done the latter, he would have contested liability as well as quantum. He opted for the middle way of resisting liability but without calling evidence on what occurred in the TSG carrier, and without accepting the evidence of and called by the Claimants or that of and called by the Additional Parties. However, as the main judgment records, he did call evidence of importance, which rebutted the case for the Additional Parties that Basil Khan’s first complaint was somehow suggested to him.[30]It is possible to have different views about that approach. But it was not unlawful, and the fact remains that the evidence called at trial proved that two of the Claimants should succeed in their action, having proved serious tortious misconduct by two of the officers. Had the two successful Claimants sued the officers as Defendants, they would have succeeded against them, and recovered damages and costs. The fact that the Defendant adopted an unusual approach does not of itself make the orders he now seeks unjust or inequitable in the context of the test in section 2 of the 1978 Act. One may test that. If he had admitted liability, he would still have been able to seek an indemnity or contribution under CLCA 1978. Had he mounted a positive case against the Claimants but lost, he would still have been able to seek that indemnity or contribution. I find it hard to see why the course he adopted alters the justice or equity of whether an indemnity or contribution should be made. The critical question under CLCA 1978 is whether the Third and Fifth Parties were responsible for the torts inflicted and the damage caused, not the choice of permissible route by which that responsibility was established.[31]Of course the Defendant’s approach involved him running the risk that if one of the claims made against him failed, he would still have been responsible for bringing the Additional Parties into the action, and could be ordered to pay the Additional Parties’ costs of his doing so.[32]I am similarly unpersuaded by the Additional Parties’ suggestions that there is some policy reason why an order should not be made. Although some arguments about abuse of process were mounted in the pleadings by the Additional Parties, and in their written statements of evidence, and in written submissions by the Claimants before trial, none were advanced before me at trial. (The First and Second Claimants put it on the basis that it was unreasonable for the Defendant to act thus. Although they have now contended in written submissions on the draft of this judgment that they were not arguing that there was an abuse of process as such, an argument about “reasonableness” could only be relevant in an action such as this if it was directed to the same point.) At the start of the trial, I raised my concern that that was not a matter justiciable before me at the trial. Counsel for both the Additional Parties and the Claimants did not abandon their cases on this issue at that stage, but it was made plain to me after the evidence and in submissions that the Additional Parties were no longer taking the point. In any event, I consider that such arguments would have been misconceived. Neither the CLCA 1978 nor the PA 1996 prevents, restricts or otherwise constrains the ability of the Chief of Police to obtain a contribution or indemnity from an officer or officers whose misconduct has led to his having to deal with a claim for which he is responsible under section 88 of the PA 1996. No authority has been placed before me which suggests that any such rule exists. The most that has been argued is that a Home Office Circular supports the approach that officers who are sued successfully for damages should in most cases expect to be repaid for the costs involved in resisting the proceedings, if they have acted in good faith and acted reasonably. But even if that was an apt description of the officers’ conduct here, that cannot amount to a defence to this claim of the Defendant. It has no effect on the question asked under the CLCA 1978, of whether an indemnity would be “just and equitable having regard to the extent of that person’s responsibility for the damage in question.” It has nothing to do with the sole relevant issue under section 2(1), that of responsibility for the damage.[33]Unless the issue of the proceedings by the Defendant was impermissible legally (which no-one suggests) then the arguments of the Additional Parties can only go to whether the Defendant should have decided to issue the claims for indemnity or contribution. If that is justiciable, it is not so within the context of these proceedings before me. There is also no claim before the court of which I am aware in judicial review (and that is in no sense to be read as any form of suggestion that one might exist). I express no view on its relevance to any proceedings before the Employment Tribunal. I am also unpersuaded that a rule of law, let alone practice endorsed by the Courts, exists by which officers who have behaved unlawfully towards members of the public, and inflicted damage upon them, can then avoid civil liability for their wrongs should proceedings be taken against them.[34]But even if I were to accept that I have jurisdiction to consider whether it was reasonable for the Defendant to issue these claims, I have no doubt that it was. I also find that the arguments of the Third and Fifth Parties are quite unpersuasive. I reach those conclusions for the following reasons; i) I cannot accept the argument that this was somehow a confrontation of the kind to be expected by police officers in their service, in which the officers were acting properly but then the line was crossed in the heat of the moment or because of some other mitigating circumstance. I certainly accept that in very many cases, an officer faced with a difficult situation may make a misjudgement, or overreact, and may then face allegations of tortious conduct, where it would be reasonable that the Chief of Police would accept responsibility for meeting any claims, without that being a matter of legal principle, nor thereby setting up some benchmark which can be relied on in law. But this is qualitatively different. The incident with the First Claimant Omar Mohidin did not flow from any confrontation after the van had stopped, nor from any lack of cooperation by him. It occurred within the carrier, where PC Mark Jones had taken him, and involved PC Mark Jones acting in an entirely improper, racist and abusive manner. If there had been any provocation its effect had long passed, as any provocative conduct by Omar Mohidin had occurred much earlier when the TSG carrier was on the other side of Edgware Road. So far as Basil Khan is concerned, it is true that he had been involved in confrontational behaviour outside the van. But what then happened to him happened inside the carrier when he had offered no violence within it, and was intended to humiliate him; ii) some time was taken up at the trial (and rightly so) in the calling of evidence by and for the Additional Parties on their training as TSG officers, including their training in diversity issues. I was invited by their case to accept that they were thoroughly and properly trained in matters relating to public order and the control of provocative situations. Evidence was also called of their firearms training, with emphasis being placed on their ability to maintain good judgment and a detached approach. I have no doubt at all that they received such training and that that was one of its purposes. But given that background, it is extremely hard to accept that the racist humiliation of the two Claimants was simply that of an officer in a difficult situation going too far. This was not a case of an officer going too far in defending himself, or being provoked by an offender into some excessive or over robust restraint. Both PC Mark Jones and Sergeant William Wilson knew perfectly well that what they were doing was improper, and contrary to the law and to the precepts of their training. As they well knew, they were sent out on patrol in the TSG carrier to keep order and deal with crimes committed by others, not to assault and humiliate youths once they had got them into the TSG carrier. In my judgment, having heard the evidence, this was a bad case of police officers taking the law into their own hands and engaging in an oppressive manner, and in PC Jones’ case, one that was also racist; iii) the Defendant was entitled to conclude that, if the claimants’ evidence and that of PC Onwugbonu was accepted by the Court as true, what occurred that day had been caused by the serious breaches of the law by both PC Mark Jones, and by the man who was meant to be in charge, Sergeant William Wilson; iv) there was no evidence here, nor the slightest suggestion, that what occurred was in any sense attributable to any inadequacies in the training given or the equipment provided, or the number of hours worked, or of any matter outside the responsibility of those on the TSG carrier. The incident occurred because, as recorded in the main judgment, the Third Party PC Mark Jones and others took offence at the gesticulations and gestures of the group of youths on the other side of the dual carriageway, and set off to find them, instead of proceeding to Brixton, which is where they had been sent; v) the fact that there were other officers there, who might or could have intervened, does not absolve PC Mark Jones or Sergeant William Wilson from responsibility for their actions. In Sergeant William Wilson’s case, he was under a duty to restrain PC Mark Jones’ excesses, not (at the very least) turn a blind eye to them. I have more sympathy with Sergeant William Wilson than I do with PC Mark Jones, as I suspect that PC Mark Jones was a forceful character who resisted criticism, but that does not deprive Sergeant Wilson of the responsibility which went with his stripes and which he failed to exercise; vi) the criticism of the custody sergeant with regard to the strip search of Basil Khan is quite unfounded. As found in the main judgment, he had been given false information by PC Mark Jones.[35]The Additional Parties say that I have a complete discretion. In my judgment, I certainly do not have an unfettered one under section 2(1) of CLCA 1978, for the reasons already given. Although the Additional Parties did not put their argument in the context of section 2(2) as such, I am not persuaded that the use of the word “may” in that subsection gives the court the wide discretion which the Additional Parties claim. In my judgment it is still governed by the context set out in section 2(1). But even if it does give the Court the wider discretion contended for, I would not exercise it against ordering an indemnity. My reasons for that view are first those given in paragraph 34 above, and second that, as noted in paragraph 33, the effect of such an approach would be to absolve the Third and Fifth Parties from liability in this case, when had they been sued directly they would have been held liable. In the context of this case that would be unjust and inequitable. It was their conduct that caused the damage and that of no-one else.[36]I turn now to the issue of the percentage split. In doing so, I apply the same test from CLCA 1978; i) in the case of Mohidin, PC Mark Jones was wholly responsible. I do not consider that there is any reason not to require him to be held wholly responsible for the torts and damage inflicted on Mohidin. Sergeant William Wilson bears no responsibility for what occurred to Mohidin; ii) in the case of Basil Khan, the original arrest (by Jones) was unlawful. Sergeant William Wilson, although thinking that he should not have been arrested for uttering threats to kill never intervened to substitute anything less serious. Khan was then taken into the TSG carrier, abused and hit by Sergeant William Wilson, and then subjected to racist humiliation and abuse and a serious assault at the hands of PC Mark Jones, but with the knowledge of his superior officer Sergeant William Wilson. His further humiliation, by being handcuffed while kneeling, was the responsibility of both. PC Kitchener added to the mix with his untoward comments, as recorded in the main judgment, but his degree of responsibility for the damage suffered by Khan in the context of the overall whole was marginal. PC Mark Jones then gave false information to the custody sergeant; iii) in my judgment both Mark Jones and William Wilson were responsible for the false imprisonment of Basil Khan. Both hit him, and Jones’ attack on him and subsequent humiliation of him in the van both on the way to the police station and after its arrival was at the very least condoned by Wilson. I accept that the false allegations which led to the strip search were not made with the knowledge of Sergeant Wilson; iv) had they been of the same rank, I would have ordered an indemnity of 75% against Jones, and 25% against Wilson. But Wilson was the sergeant in charge, and in my judgment, despite my sympathy for him in having to deal with Mark Jones as one of his crew, he must bear a significantly greater share of responsibility than proposed by the Defendant. In my judgment a fair and equitable split in the case of the damages payable to Basil Khan is Jones 60% and Wilson 40%.[37]Since I issued my draft judgment in this matter, the Additional Parties have submitted that, for the reasons given by me in relation to the choice of the basis of costs (see below), I should not award an indemnity so far as the 10 % uplift of the damages under CPR 36.17(4) (d) is concerned, as set out in the order at paragraph 9 above relating to the claim of the First and Second Claimants. The same point applies as to the calculation of the rate of interest. I shall return to that matter below.[38]I turn now to the issue of costs insofar as they relate to the claims made by the Defendant against the Additional Parties. I start by setting out the context of this case and my approach; i) the general rule under CPR 44.2 is that the unsuccessful party will be ordered to pay the costs of the successful party; ii) however the court must also have regard to the matters set out at CPR 44.2 (4)-(5); iii) the Claimants did not join in the Additional Parties as Defendants. It follows that the awards of costs to the First and Second Claimants against the Defendant, and by the Defendant against the Third Claimant, do not include the costs incurred in the making of the Additional Claims by the Defendant against the Additional Parties, nor incurred in defending them. However, as the Defendant joined in the Additional Parties, the successful Claimants must be entitled to any increase in their costs sustained as a result of the joinder by the Defendant, for it is another obvious consequence of joining in other parties that it may increase the costs incurred by the Claimants; iv) further, any award made to a successful Additional Party is a claim against the Defendant for the costs involved in successfully resisting the Defendant’s claim: similarly an award made against an unsuccessful Additional Party is a claim by the Defendant for his costs in making and pursuing that claim, but the indemnity may include the costs of defending the Claimant’s claim. This is not a case where the response to the Defendant’s defence was that the Claimants joined in the Additional Parties (or any of them) as Defendants; v) it is appropriate in this case to order a detailed assessment pursuant to CPR 44.6, 47 and paragraph 8.1 of the Practice Direction on costs. That being so, it would be inappropriate for me to deal with any detailed issues as to costs. I can however indicate in broad terms my conclusions about the conduct of the parties under Rule CPR 44.2(5) in so far as it affects the issues on costs now before me.[39]Awards have already been made as between the Claimants and the Defendant, as recited above. Although some part of the award in the case of the First and Second Claimants was on an indemnity basis, there is no material whatever before me which is relied on as showing that the conduct of any of the Additional Parties’ case against the Defendant, or his against them, should attract an award of costs on an indemnity basis.[40]I have considered the Defendant’s submission. I have noted the reliance placed on Chadwick LJ in McPhilemy v Times Newspapers. I do note that in Brawley v Marczynski & Anor No.2 [2002] EWCA Civ 1453 [2002] 4 All ER 1067, [2003] CPLR 241, [2003] 3 Costs LR 325, [2003] CP Rep 15. Longmore LJ (himself one of the court in McPhilemy v Times Newspapers) described the principle at [13]thus “Recent authority has shown that it may also be appropriate to make an award of indemnity costs where there is little or no stigma to be attached to the manner in which the losing party has conducted the litigation, see eg Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer 12 June 2002, [2002] EWCA Civ 879 Para. 31 and Lord Woolf CJ’s re-emphasis in Para. 32 of:
“the point . . . that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm.”
He gives the example of a test case which benefits other litigants. Indemnity costs may, specifically, be also awarded where a claimant makes a Part 36 offer which the defendant should, but does not, accept, see CPR 36.21 and McPhilemy. But despite these examples indemnity costs are, more usually, awarded when, as here, the judge disapproves of a party’s conduct in the litigation.” “the point . . . that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm.”[41]In Revenue and Customs v Blue Sphere Global Ltd [2010] EWCA Civ 1448[2011] BVC 30, [2011] STI 129, [2011] STC 547 Moses LJ at [12] referred to the approach as follows "If a defendant involves a claimant in proceedings after an offer has been made, and in the event, the result is no more favourable to the defendant than that which would have been achieved if the claimant's offer had been accepted without the need for those proceedings, the message of Part 36.21 is that prima facie it is just to make an indemnity order for costs and for interest at an enhanced rate to be awarded." (Petrotrade v Texaco [2002] 1 WLR 947, at [64]; see also paragraph 63 of Petrotrade andMcPhilemy v Times Newspapers [2001] EWCA Civ 933 paragraph 28.)[42]In Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 [2002] CP Rep 67, [2002] CPLR 693, [2002] All ER (D) 39 the Court of Appeal emphasised that the context of a Part 36 offer and its rejection are all important: see Lord Woolf CJ at [31]-[33] and Waller LJ at [34] and [40].[43]It thus seems to me that the general approach as between Claimant and Defendant, is that where a Claimant beats his own rejected Part 36 offer, it leads to a prima facie case that he should get indemnity costs. But as with any general or prima facie approach it must be applied in the context of the particular case.[44]What the Defendant in this case seeks to argue is that because he rejected an offer made to him, therefore an Additional Party, joined by him, should indemnify him for his own decision to reject the offer and fight on. As already observed the Defendant had elected to adopt a particular stance in the litigation, which did not involve the admission of liability but advanced no positive case. One of the risks of maintaining that approach was that if a Part 36 offer was made by the Claimant, he could not accept it, but might well be unable to resist the Claimant doing better. I do not consider that it would be just and equitable for the Third and Sixth Parties to have to bear the additional expense of the way in which the Defendant elected to conduct the litigation in the context of a Part 36 offer. I therefore consider that any indemnity as to costs should be on the standard basis, and that the Defendant should be able to recover costs payable by him to the Claimants as if assessed on a standard basis.[45]The effect of the Defendant’s stance was also that the award of damages were uplifted by 10%, and an enhanced rate of interest awarded from 22nd March 2012. That too was a matter for him, and it would not be just or equitable for the Third and Fifth parties to bear those additional burdens.[46]I must deal also with the question of proportionality. The Additional Parties seek to compare the valuation of the damages to the overall costs of the actions, which they put at £ 500,000. Like some other seemingly simple arithmetical exercises deployed forensically, it is simplistic. Further, if it is well taken, then it may affect the entitlement of the Fourth and Sixth Parties (Messrs White and Brown) to an award of costs in their favour. They are of course jointly represented with PC Mark Jones and Sergeant William Wilson. However I note that nothing in the Additional Parties’ submissions suggests that the Fourth and Sixth Parties should not be awarded their costs, or that they should not get a full award, on the basis that the overall costs were disproportionate.[47]As I set out in the main judgment, the incident in question took a short time, but its consideration in these proceedings generated a great deal of paper. I have already, in the main judgment, indicated a number of areas where I considered that irrelevant material was introduced, or arguments brought forward which were simply incapable of relevance. I was critical of all the parties to a degree, but it is fair to say that the Additional Parties, or it should be said their advisers, must shoulder a considerable degree of responsibility for what occurred. By way of example, the Additional Parties’ case that the investigation of the incident had been mishandled (at best) or deliberately misconducted (at worst) went to an issue which, as was accepted at the trial, could not and did not take matters any further. The Additional Parties also thought it right to fill up court bundles with documents from the IPCCinvestigation and related matters, employment tribunal hearings and other litigation, which could not and did not have any relevance to the issues which the Court had to determine. As my judgment also records, the Additional Parties’ and their witnesses’ witness statements also contained significant amounts of irrelevant and prejudicial material.[48]So far as the Defendant is concerned, he served evidence of the various investigations conducted into the allegations made by the Claimants, and by the Additional Parties (strictly speaking by their families) against the officers engaged in the investigation of the original incident and the criminal proceedings which flowed from it. Given the nature of the attack from the Additional Parties (see for example paragraphs 3A, 29A and 45-47 of the Additional Parties’ Amended Defence), he had to do so.[49]So far as the Claimants are concerned, I do not consider that it was unreasonable to obtain and serve the evidence on similar fact which was relied on at trial. Although in the event I placed little weight on it, it was relevant and admissible, and properly adduced. That being so, it was reasonable for the Additional Parties to adduce evidence to rebut it. I do not consider that either course of action was unreasonable. Nor do I consider the principle of its adduction or rebuttal disproportionate. If accepted, the evidence supported the Claimants’ cases, and in particular against PC Jones, that his manner of dealing with those he came across of other ethnic origins was violent and excessive. I am aware that there are arguments for the assessment process which will explore whether it was the Claimants or the Additional Parties who were responsible for the incurring of costs in relation to those parts of the similar fact evidence held to be inadmissible by Sir David Eady, and on whether the degree of costs incurred in relation to the calling or rebuttal of the similar fact evidence was unreasonable and disproportionate. I limit myself to saying that the adduction and rebuttal of the similar fact evidence was not unreasonable in principle, nor disproportionate in principle. Whether the amount of costs incurred in that course was reasonable and proportionate will be for the assessment.[50]I should emphasise that I have been presented with none of the Parties’ assessment of costs. I do not have the material to decide whether the suggested figure of £ 500,000 is correct or not. But it follows from all the above that, when considering proportionality, an overall total, be it £500,000 as advanced by the Additional Parties, or some other sum, is not a proper figure to take. Further, this was a bad case of serious misconduct by police officers against teenage youths both of whom were under 17. Although the claims of injury were exaggerated, both suffered significant harm at the hands of police officers. At the same time, serious allegations were made about the treatment of a third youth by two other officers, who were properly entitled to resist liability for what they had done. Such cases required proper pursuit, defence and representation. Further, it seems to me that a significant part (albeit not the greater) of that figure will be attributable to the unsuccessful claim of the Third Claimant Hegazy, and the unsuccessful resistance of the Defendant’s Additional Claim by PC Mark Jones and Sergeant William Wilson, remembering also that much of the admissible similar fact evidence related to PC Mark Jones’ case, although not all.[51]The costs relevant to the pursuit and resistance of the claims of the Claimants Omar Mohidin and Basil Khan, and the related Additional Claims, once one winnows out the irrelevant and unreasonable, will come to a great deal less than the total costs figure for all parties in the action, whether that is £ 500,000 or some other figure.[52]I therefore conclude that there is nothing in the proportionality point which should dissuade me from making an award of costs against the Third Party PC Mark Jones in respect of the claim by Omar Mohidin, nor against the Third and Fifth Parties (PC Mark Jones and Sergeant William Wilson) in favour of the Defendant in respect of the claims by Basil Khan, nor from making one in favour of the Fourth and Sixth Parties against the Defendant in both cases, nor one in favour of the Fifth Party (Sergeant Wilson) in respect of the claim by Omar Mohidin.[53]I do not consider that I should make any awards as between the Additional Parties and any Claimant. It was a matter for the Defendant whether he joined all or any of the Additional Parties, and he elected not to support or dispute any of the Claimants’ cases on liability.[54]As the Defendant points out, if I made an order of indemnity or contribution with regard to the costs of the successful Claimants’ claims , that is not a liability which would fall on the Third and Sixth Parties (Messrs Jones and Wilson) personally, because of the role of the Police Federation. That being so, their lack of means cannot be a relevant consideration on the issue of any contribution to costs.[55]The Additional Parties have argued that it was disproportionate for the Defendant to issue the claims. It is said that the increase in costs thereby occasioned was not proportionate to the likely level of damages. I do not accept that submission, for the following reasons i) the Claimants were relying on expert medical evidence which, if accepted, would have justified a much higher award; ii) if the Claimants proved their case on liability, the Additional Claim fell four square within the terms of CLCA 1978. This was a bad case of serious misconduct by experienced officers towards two youths under the age of 17, in which they were assaulted and subjected to racist abuse and humiliation. Had the officers been sued directly by the Claimants, no argument against the payment of costs could have been raised; iii) I accept that one reason for the stance taken by the Defendant was that he was neutral as to the truth of the allegations made. However, if proceedings were not issued, he would have either had to call the Additional Parties despite the conflicts with evidence from another serving officer (PC Onwugbonu), and he would also have found himself having to deal with the evidence (that of Inspector Cruickshank) which was so important in showing that a significant part of the Additional Parties’ case (which argued that Basil Khan’s complaint was prompted) could not be sustained. If what the Claimants said was found to be true, the Defendant was facing the payment of damages and costs in respect of serious misconduct by officers for which they were wholly responsible, and in breach of their instructions and training. As already stated, I do not consider that it was unreasonable or disproportionate to issue the proceedings for an indemnity or contribution. As already noted, the Additional Parties bear no little responsibility for the level of costs incurred; iv) in the case of both PC Mark Jones and Sergeant William Wilson, while I note that the Additional Claim also related to what happened to Hegazy, little if any additional costs were incurred, as that matter principally related to The Fourth and Sixth Parties Steven White and Neil Brown. In any event, the Defendant will be unable to obtain any part of his costs in defending that claim from the Additional Parties. All of the Additional Parties are jointly represented through the Police Federation. The reality is thus that the costs of the Third and Fifth Parties resisting the Hegazy allegations will be dealt with as a result of the award in favour of the Fourth and Sixth Parties PC White and PC Brown.[56]Finally, I would return to the consequence of the Defendant issuing the proceedings for indemnity and contribution. So far as the Fourth and Sixth Parties Steven White and Neil Brown are concerned, and the Fifth Party William Wilson are concerned in the case of Omar Mohidin, the costs incurred by them in resisting the Defendant’s claim realistically included the cost of participation in the action, and of representation at trial. It may be that, on assessment, the costs of the Fifth Party William Wilson relating to the claim of Omar Mohidin are modest given the fact that he would have to be represented with regard to the claims made concerning Basil Khan in any event, but that is a matter for assessment.[57]I therefore consider that the appropriate course is that i) The claims of the Defendant against the Fourth and Sixth Parties (Steven White and Neil Brown respectively) in both actions HQ12XO3666 and HQ12XO4814 must be dismissed: ii) The Defendant must pay the reasonable costs of the Fourth Party (Steven White) and Sixth Party (Neil Brown) of defending the Defendant’s claims in both actions HQ12XO3666 and HQ12XO4814 for indemnity and contribution made by the Defendant, such an award to be on the standard basis. iii) The claims of the Defendant against the Third and Fifth Parties (Mark Jones and William Wilson respectively) relating to the claim of Ahmed Hegazy (HQ12XO4814) must be dismissed; iv) The claim of the Defendant against the Fifth Party (William Wilson) relating to the indemnity or contribution in the case of the claim by Omar Mohidin (First claimant in claim no HQ12XO3666) must be dismissed; v) The Third Party Mark Jones must indemnify the Defendant for the damages and costs which the Defendant is liable to pay to and in respect of the First and Second Claimants (claim no. HQ12XO3666) in the following respects and proportions: a) 100% of the damages and costs payable by the Defendant to the First Claimant, save that i) The amount of damages before interest shall be taken as being £2500; ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012 iii) for the purposes of the indemnity such costs payable to the First Claimant shall be treated as if assessed on the standard basis; b) 60% of the damages and costs payable to and in respect of the Second Claimant, save that i) The amount of damages before interest shall be taken as being £11,950; ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012 iii) for the purposes of the indemnity such costs payable to the Second Claimant shall be treated as if assessed on the standard basis. vi) The Fifth Party must indemnify the Defendant as to 40 % of the damages and costs which the Defendant is liable to pay to and in respect of the Second Claimant (claim no. HQ12XO3666), save that i) The amount of damages before interest shall be taken as being £11,950; ii) The relevant interest rate shall be taken as 2%, and no uplift shall be made for the period after 22nd March 2012 iii) for the purposes of the indemnity such costs payable to the Second Claimant shall be treated as if assessed on the standard basis. vii) The Defendant must pay the reasonable costs of the Fifth Party William Wilson of defending the claims for indemnity and contribution made by the Defendant in the case of the First Claimant in claim no. HQ12XO3666, such an award to be on the standard basis. viii) All awards of costs relating to the claims by the Defendant against the Additional Parties, and the Additional Parties against the Defendant, are referred under CPR 44.6 to be assessed by the costs officer, such assessment to be on the standard basis. ix) There is otherwise no order as to costs save for those already made by consent.

Cited in 3 later judgments