Marsh v Ministry of Justice [2017] EWHC 1040 (QB)

[2017] EWHC 1040 (QB)Case No HQ13X01121
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/07/2017
Before
LADY JUSTICE THIRLWALL DBE(Sitting as a Judge of the High Court)
Between
JAMES MARSHClaimantMINISTRY of JUSTICEDefendant
Andrew Roy and Vanessa Cashman (instructed by Anthony Gold Solicitors) for ClaimantTimothy Holloway (instructed by Government Legal Department) for DefendantHearing Hearing dates: 15 th November to 17 th November 201621 st November to 25 th November 201628 th November to 2 nd December 20166 th December 2016Further hearing: 29 th June 2017
JudgmentLADY JUSTICE THIRLWALL :
[1]This is a claim for damages for personal injury. The claimant is 56. From 2004 he worked as a prison officer at Downview, a prison for female offenders. He was suspended from duty by the defendant in February 2010 when the police executed a search warrant at his home in the light of allegations of sexual misconduct made by a serving prisoner. No charges were brought against him. He remained suspended on full pay until the conclusion of a disciplinary hearing. Having heard the evidence, the governor dismissed the single, remaining complaint and invited the claimant to return to work in July 2012. The claimant was suffering from depression and unable to work. On 30th May 2013 he was dismissed on the grounds of his ill health. He began these proceedings in March 2013. It is his case that the psychiatric injury he suffered and the consequential losses were caused by the negligence and/or breach of contract of the defendant.[2]The defendant denies breach of contract and negligence and asserts that, notwithstanding the outcome of the defendant’s disciplinary hearing in 2012, the claimant was in fact guilty of that and other misconduct which would (if known about) have led to his dismissal in any event. Much of the evidence relied on by the defendant goes to this issue.[3]Shortly before the trial the claimant made an application to strike out the defence as an abuse of the process of the court. I heard argument at the end of the evidence. I dismiss that application for the reasons set out in brief at the end of this judgment. I reject the submissions that the solicitor for the defendant acted with an excess of zeal when dealing with witnesses or that she was too close to the case.

Background

[4]Surrey Police were invited into the prison by the defendant in late 2009 to investigate allegations of widespread corruption, principally that prison officers were involved in sexual misconduct with prisoners. The allegations came to light after prison officer Mr Bevan, the claimant’s close friend, spoke at great length to a relatively new officer, KQ, about his own sexual misconduct within the prison. He implicated the claimant and other officers in similar behaviour.[5]KQ confided in another officer, Ms Gainey who advised him, quite properly, to report what he had been told to the corruption unit for the prison service. He did so by letter. The police were informed. The prison service then worked closely with the police to provide information to them. The investigation, named Operation Daimler, was a police operation but selected prison staff and managers worked with the police. The police devoted very significant resources to Operation Daimler.[6]Russell Thorne, a governor at the prison was arrested in December 2009 and suspended. In February 2010 the police, by agreement with the defendant but without warning to the suspects, executed a search warrant at the claimant’s home and the homes of Mr Bevan and another officer, Mr Dykes. For reasons which were not explained, between 8 and 10 police officers attended to execute the warrant at the claimant’s one bedroomed flat early in the morning as the neighbours were going to work. The search took several hours. The police seized the claimant’s computer and mobile phone as well as some sleeping tablets. A prison governor, Ms Martin, attended with the police in order to suspend the claimant.[7]On 31st March 2010, by appointment, the claimant was arrested at the police station on suspicion of misconduct in public office arising out of two incidents: -i) alleged sexual intercourse with a prisoner to whom he had previously supplied alcohol. This was alleged to have occurred on the night of Christmas Eve of 2007.ii) an allegation that he had “grabbed or slapped” the buttocks of the same prisoner when she was lying on her bed in her cell. Mr Bevan was said to have been present at both incidents and to have participated in the first.[8]The claimant was interviewed at length on two occasions by experienced police officers. He answered all questions and denied the allegations. By May 2010 the police assessed the evidence against him as weak and informed the defendant of this. The position did not change and on 16th September 2010 the police wrote to the claimant to say that he would not face any charges. That was the end of police involvement with the claimant. A governor from Canterbury Prison was asked by the defendant to carry out a disciplinary investigation into the claimant’s conduct. In November he informed the governor of Downview that the police had asked him to suspend his investigation because of the ongoing criminal proceedings against other officers.[9]Ultimately three prison officers were prosecuted for misconduct in public office arising out of consensual sexual relationships with prisoners. One (Mr Bevan) took his own life the night before the trial on 11th June 2011. Mr Thorne was convicted of one count and sentenced to 5 years’ imprisonment in July 2011. He was acquitted of a second count. A third, Mr Dykes, was tried on the same indictment as Mr Thorne in June 2011. The jury could not agree on three counts. Mr Dykes’ retrial took place in November 2011 by which stage there were four counts as another complainant had been identified. The jury could not agree. In accordance with convention, there was no third trial. In his case the subsequent disciplinary process led to dismissal. A fourth officer, Mr Cummings, was investigated but not charged. He did not face trial. He was subsequently disciplined and downgraded.[10]In October 2011 Ms Pearce, a different governor from another prison, was appointed to carry out the disciplinary investigation into the claimant’s alleged misconduct. After several months she advised that there was a case to answer in respect of one incident ie the ‘slapping allegation’. At the end of the disciplinary hearing in June 2012 when the charge was dismissed, the claimant was invited to resume his post.[11]Stripped to its essentials it is the claimant’s case that:-i) it is well known by all, and certainly by the defendant, that the work of a prison officer is stressful. ii) notwithstanding the existence of policies to manage stress, none had been implemented at Downview iii) knowing a) that he was being subjected to a campaign of harassment by a prisoner (the complainant in the two matters investigated by the police) and b) that this was affecting his mental health, the defendant took no steps to stop the harassment or remove the complainant from the prison. The defendant negligently and in breach of contract:iv) failed properly to investigate the malicious complaint against him in 2009v) failed to remove the complainant from the prison when it was plain that her complaint was maliciousvi) failed to inform the police that an investigation of the slapping incident had found it to be maliciousvii) failed to inform the police that the complainant had been harassing him in a number of ways, including seeking to coerce other prisoners to make false statements against him and failed to provide other exculpatory material to the police before a decision was taken to search his home. viii) The claimant contends that had the slapping allegation been investigated when it was first made, in early 2009, the defendant would have found it to be false and removed the complainant from the prison, thereby protecting the claimant from further false allegations. In those circumstances, even if she had later made a false allegation of sexual intercourse he would not have been subjected to an early morning search of his home, in the context of Operation Daimler. ix) In any event, the defendant should have arranged with the police a less intrusive search. Its failure to do so was a breach of contract/negligent. The circumstances of the search were traumatic, as the defendant must have foreseen and caused him foreseeable injury. x) The suspension was in breach of contract and negligent. xi) The defendant was further negligent and in breach of contract in failing to complete the disciplinary process within a reasonable time of the police decision not to charge. This prolonged and aggravated the injury as the defendant should have foreseen, knowing, as it did, that he was suffering from depression as a result of his circumstances. xii) Carrying out a disciplinary investigation once the police had decided not to charge the claimant. xiii) As a result of his illness the claimant was unfit for work for a prolonged period and was unable to return to the prison service with consequential financial losses. 12. It is not disputed that the defendant owed to the claimant, an employee, a duty to take reasonable care not to expose him to the risk of personal injury. All allegations of breach of contract and breach of duty are disputed. It is not disputed that the execution of the warrant was traumatic but the defendant submits that the execution of the warrant was inevitable and in any event it was outside the defendant’s control. The suspension was not in breach of contract, nor was it negligent. The prolongation of the suspension was neither negligent nor in breach of contract. Causation is disputed. Quantum is disputed. The principal thrust of the defence however is that the claimant was in fact guilty of comprehensive misconduct.

The Pleadings

[13]The amended particulars of claim is 38 pages long. The amended defence runs to 114 pages. Both pleadings are far longer than was necessary to identify the issues in the case. The defence in particular includes unnecessary detail, much of which is irrelevant to the claimant. Had proper focus been applied at an earlier stage the trial would have taken at most 8 days, instead of the 15 that it occupied.[14]Paragraph 11 of the amended defence reads as follows “in all probability the Claimant did in fact misconduct himself in the following respects and that, even if he did not do so, there was information to suggest that he had which the police were duty bound to investigate, during the course of which investigation and the subsequent internal investigation it was reasonable to suspend the claimant from duty: i) supplied spiked alcohol or, in any event, alcohol to Ms Rosero in her cell around Christmas 2007 and thereafter sexually assaulted her or, in any event engaged in sex with her and/or had been present when Mr Bevan had done so and/or had failed to report the same; ii) assaulted Ms Rosero by slapping, smacking, grabbing or squeezing her left buttock in the presence of Officer Mr Bevan between about Christmas 2008 and January 2009; iii) returned to C Wing on 20th December 2009 when he had been instructed not to do so and/or knew that he should not do so in order to goad the complainant; this allegation was repeated in paragraph 36(a) and paragraph 97 of the amended defence. iv) provided a disposable camera to Ms Rosero and arranging for photographs to be developed; v) attempted to catch Ms Rosero undressed in her cell; vi) made inappropriate comments and/or exhibited over familiar, inappropriate and/or suggestive conduct towards prisoners including Ms Rosero as hereinafter set out; vii) danced suggestively with prisoners on C Wing; viii) trafficked items into the prison and/or gave them to prisoners including drugs, chocolates and/or alcohol as hereinafter set out; ix) failed to report his knowledge of the unlawful conduct of Mr Thorne; x) failed to report his knowledge of the unlawful conduct of Mr Bevan including that hereinafter set out.” Summary of findings in respect of the allegations made in the defence(i) I am quite satisfied that the allegation at (i) is untrue. It should not have been made.(ii) I am not satisfied that the claimant slapped/grabbed Ms Garces Rosero either as set out at (ii) or at all.(iii) The allegation at (iii) was unsustainable. The evidence was to the contrary. (iv), (v), (vi) I do not find proved. (vii) This allegation is overstated. I set out my findings at paragraph 87. (viii) I reject the assertion that the claimant brought drugs and alcohol into the prison. He did bring a box of chocolates for inmates and staff at Christmas. (ix) The claimant did not report his suspicions about Mr Thorne. Neither did many others. Knowing that, the governor asked him to return to work. This was not a matter that would have led to disciplinary action. (x) I am satisfied that the claimant was unaware of Mr Bevan’s misconduct.In short I reject in its entirety the defence case that the claimant was guilty of misconduct which would have led to his dismissal.

Summary of conclusions on the claim:-

[16]i) I find no breach of duty either in contract or in tort in the period up to and including the suspension and search of the claimant’s home (February 2010). ii) Thereafter there was no breach of duty or of contract until November 2010 when in breach of contract and in breach of its duty of care at common law the defendant postponed the internal investigation (which decision was communicated to the claimant on 8th December 2010). iii) The disciplinary process should have concluded by May 2011 when the suspension should have been lifted.iv) But for the defendant’s breach of duty the claimant would have recovered from the psychiatric injury and would have returned to work in the prison service by May 2012. v) The claimant is entitled to recover damages for the prolongation of his illness from May 2012 and for the losses consequent upon that prolongation.

The Evidence

[17]I heard evidence from 29 witnesses in a 15 day trial. At a hearing shortly before trial I refused an application to extend the time estimate. I considered then as I do now that the proposed number of witnesses and documents was wholly disproportionate to the issues and value of the claim. I set a limit on the number of witnesses to be called and imposed a cap on the number of pages in the bundles to 3000. In the event, with the assistance of a short hand writer, the oral evidence was concluded within the time allocated to it. After the trial I read many other documents to which reference had been made and which were said to be relevant in addition to those referred to in the trial. Several thousand more documents were available in court. Only a handful of those additional pages were referred to. I read them.[18]I have considered all the evidence but record in this judgment only that which is necessary to inform and explain my decision. It is not necessary to determine every issue. I do not consider it necessary to analyse all the schedules included in the pleadings. There were many statements taken by the police in the course of their investigations in some of which there was reference to alleged misconduct by the claimant. I have read them but disregard most of them. They were untested, sometimes internally inconsistent or inconsistent with other evidence. Many contained little more than gossip.[19]A draft witness statement was produced on behalf of a former prisoner. She was on the list of live witnesses but did not appear. Her unsigned draft witness statement contained a number of allegations against the claimant, some of which she had made to a prison officer, all of which were hotly disputed. The record of her police interview and her statement to the police were not produced. I was told in June 2017 that this may be because they did not deal with the claimant and so were not disclosed to the defendant by the police. I attach no weight to her draft, unsigned statement.

Security Investigation Reports (SIRs)

[20]Where an officer had some concern about an occurrence within the prison (particularly in respect of the conduct of a prison officer) he or she was obliged to prepare a confidential SIR and submit it to the officer with responsibility for security. It was then for him to report the matter further – either to a more senior officer, or to the anti corruption unit or both. It was also open to officers to report matters of concern directly to the anti corruption unit. The SIRs should have been retained. Whilst many are available it is clear that some have been lost. A good example is an SIR completed by PO Bradley on 21st December 2009. It was given to the claimant to read in his police interview in 2010. Fortunately, he read it out verbatim. It was not available at trial. Whether it was lost by the police or the defendant matters not. Its disappearance is most unsatisfactory, not least because it was entirely consistent with and supportive of the claimant’s case. A number of the defendant’s employees made assertions about the officer responsible for security to the police but he was not arrested. He was not called to give evidence at trial. Some of the SIRs submitted by the claimant have been used in the course of the trial. Others were lost/destroyed before it began. I have approached the case on the basis that where there is credible evidence that a SIR was submitted it was in fact submitted.

The Claimant’s Career

[21]The claimant was posted to Downview upon his appointment to the prison service. For two years he worked in the female juvenile unit and thereafter in the adult prison. I have seen a number of positive appraisals conducted by Mr Thorne who was his line manager. There is no reason to think they were other than honest appraisals. Mr Holloway’s contention that the claimant and Mr Thorne were friends was based on a single entry in the claimant’s diary “drinks with Russ”. It was the claimant’s case that he had on occasion had drinks with Mr Thorne and others, but they were not friends. I accept that evidence which was consistent with the evidence of other witnesses.[22]As at 2007 the claimant was working on the enhanced landing on C wing. This was for the best behaved prisoners who received extra privileges in recognition of their good behaviour. Whilst this was his usual place of work, the claimant moved around the prison and from time to time was detailed to work elsewhere. Towards the end of 2009 he agreed to move to D wing; he considered it an opportunity for professional development. He had sought promotion to Senior Officer and had passed the Stage 1 written exam in October 2008. He subsequently failed the second stage of the assessment and did not apply to retake the second stage at the next opportunity in May 2011 when he was suspended and suffering from depression. He gave evidence to the effect that he had intended to retake the exams and hoped to achieve the rank of governor in due course. In the event his suspension marked the beginning of the end of his career in the prison service. Ms Garces Rosero[23]Ms Garces Rosero was serving a 17 year sentence imposed after a trial for fraud and drugs offences. It was the claimant’s evidence that from about the end of 2008 she began a campaign of harassment against him. It was his belief that this arose after an incident in which he had reported her to a superior officer for her rudeness to Officer Mr Bevan. Ms Garces Rosero had the status of enhanced prisoner. She was on C wing. She was the diversity representative for the prison and so had access to all areas of the prison. A number of prison officers said she was a very engaging character. Others, including the claimant, considered her manipulative. It is likely that she was both, on the evidence. Throughout the period with which I am concerned she was having a consensual sexual relationship with Mr Thorne, a governor. There is some evidence that she also had sexual relationships with at least two prisoners. Chronology of Events[24]In January 2009 Ms Garces Rosero alleged that the claimant had slapped her on the bottom some weeks earlier. She reported this to PO Hurley who said that he would deal with it. He discussed it with his manager, Mr Ivens. The two of them reported the matter to Mr Thorne who said he would deal with it. In the event he did nothing. Both Mr Hurley and Mr Ivens gave evidence. Both accepted that they should have completed a SIR in respect of Ms Garces Rosero’s report. Both said they had not done so because Mr Thorne told them they could leave it to him. I accept their evidence. In the event nothing happened as a result of the complaint. It should have been investigated at that time. When interviewed (post conviction) Mr Thorne said he had swept it under the carpet. He knew that he should have acted upon it. The defendant is responsible for that omission which occurred in the course of Mr Thorne’s employment.[25]The claimant was, he said, unaware of this allegation at that time. Mr Hurley said that he had discussed it with him at about the time it was made, early 2009. He said that the claimant was hostile to him for a while after that. Having seen the marked reaction from the claimant when the allegation was made known to him in August 2009 I consider it unlikely that he would have done nothing if faced with the same allegation in January 2009. I consider it far more likely that this discussion took place after the allegation resurfaced in August 2009.[26]In February 2009 the claimant submitted a SIR to the effect that a prisoner had reported to him that Ms Garces Rosero was making allegations against him and he should look out for himself.[27]On 15th July 2009 a prisoner (RM) alleged that in the course of a Control and Restraint (C and R) incident a male prison officer had inserted his finger into her rectum. The use of C and R had been authorised by governor Sally Hill. She gave evidence at trial. She was sensitive to the needs of prisoners and worked in their best interests. It was rumoured amongst the prison officers that she had authorised a male only C and R team. This was untrue. There was a woman on the team. After the incident, and in light of the complaint, all the officers involved completed Use of Force forms. These were available at trial. Mr Bevan and the claimant were part of the team. The claimant was there as a “leg officer” ie he was required to restrain the prisoner’s legs if required. In the event this was not required and the claimant had no contact with the prisoner at all. When interviewed by the police in late 2009, Ms Hill said that RM’s allegation that someone had inserted his finger into her rectum was impossible. In her statement produced for these proceedings she attenuated that slightly but it was clear from her evidence at court that in her view what RM asserted had not taken place. I am quite satisfied that had Ms Hill had even the slightest concern that there might be some truth in the allegation she would have said so. Ms Hill confirmed that all the officers were wearing full Personal Protection Equipment. In any event the evidence shows that the claimant had no involvement with RM at all.[28]The incident was reported to Surrey Police at the time. They investigated it. They interviewed the complainant at length, they received and read the Use of Force forms produced at the time. They drafted a statement based on notes of an interview with RM. The investigation was closed in October 2009. The police recorded that on a previous occasion RM had made a false allegation of rape which she then withdrew. The police considered that the allegation arising out of the C and R incident was made in order to secure a move to a different prison. She had achieved this. It is not part of the defendant’s case that the claimant was guilty of any misconduct in respect of this incident but it is an important part of the chronology as will become apparent. I shall refer to it again later in the judgment when analysing the position of Mr Bevan.[29]In August 2009 Ms Garces Rosero accompanied another prisoner, Ms Richards, to see PO Jackie Gourley who was responsible for diversity within the prison. Ms Richards complained to Ms Gourley that the claimant had been racist in his dealings with her. Ms Garces Rosero was supporting Ms Richards. While she was with Ms Gourley, Ms Garces Rosero hinted that she also had something to complain about in respect of the claimant. Ms Gourley then described how she had to coax the account out of Ms Garces Rosero who seemed reticent and upset. Ms Gourley considered that Ms Garces Rosero’s level of upset meant that the complaint may well be true. She properly reported the allegation to Mr Paske, the Security Officer for the prison. He asked her to investigate the allegation made by Ms Garces Rosero and, separately, the allegation of racism made by Ms Richards. Whether or not it was good practice to direct the person to whom the allegations were first made to carry out the investigation does not matter for the purpose of this case. Ms Gourley had the task of investigating both complaints. She did so, I find, conscientiously. The procedural irregularity referred to later by Ms Pearce does not affect my view of this.[30]When investigating the allegation of racism, Ms Gourley interviewed several women who were on the same corridor as Ms Richards. They refuted her allegation and confirmed that the claimant was a good officer who was not racist. They were all of the view that Ms Richards had fabricated the complaint because the claimant had put her on report for bullying another prisoner. Ms Richards denied that at the time (and in evidence before me). She was for the most part an unsatisfactory witness. Her account of her background and academic qualifications was wholly implausible. Whilst she has not committed any criminal offence for many years, the account in her statement of her criminal record and the reason for being the subject of an IPP was untrue. I rely on her evidence only when it is supported by other evidence.[31]Ms Gourley concluded that there was no substance in the allegation of racism. I consider it likely that the complaint was made as retribution for the claimant’s bullying report and reject Ms Richards’ evidence to the contrary. I turn to Ms Gourley’s investigation into Ms Garces Rosero’s allegation.[32]Ms Gourley made notes of her interviews with the various witnesses, used the notes to write her report and then destroyed the notes. I am satisfied that there was nothing sinister in this but it means that she did not later have the benefit, nor did anyone else, of reading all that the witnesses had to say at that time. The allegation is recorded as follows:
“between Christmas 2008 and January 2009 (unsure of the date) Officer Marsh came into Ms Garces Rosero’s cell whilst she was in there with 2 other offenders and slapped her on the bottom whilst she was laying on her bed”
. In the section marked ‘Incident details’ the following appears:
“Ms Garces Rosero states that Officer Marsh came into her room where she was listening to music and chatting with 2 other offenders [Ms Kimber and Ms Noakes]. She states that she was lying on her side and he came into the room past Officer Bevan who was stood in the door way and slapped her on the bottom. She states she jumped up and screamed at him to leave her alone. Ms Kimber substantiates this allegation – however, states it was her room not Ms Garces Rosero’s and states Ms Garces Rosero “laughed it off”
. Ms Kimber’s and Ms Garces Rosero’s recollection of events otherwise were identical – they used the same terminology and descriptive terms to describe the events – taking into consideration that the incident took place some 9-10 months previously, this leads me to believe that there has been collusion between the two individuals and their recollection of events cannot be relied upon. Ms Noakes has no recollection of the incident taking place. Mr Marsh categorically denies any of the allegations and feels that they are malicious. He has challenged both Ms Garces Rosero and her friend Ms Richards in recent weeks and believes that it is due to this that these allegations have been brought. Officer Bevan has no recollection of the incident taking place – my concern was that he is a close personal friend of Officer Marsh but there is little evidence to suggest that he is lying and covering for this friend”.[33]Mr Roy, on behalf of the claimant, is critical of the investigation but Ms Gourley spoke to all relevant witnesses ie those who were said to be in the room at the time and those who were aware of the original complaint (Mr Hurley, Mr Ivens, and Mr Thorne). In her report she does not express a view about whether the allegations were true or false but had she been satisfied that there was a case to answer she was bound to recommend that the matter be formally investigated. She did not do that. Her recommendation was: “Guidance should be issued to staff generally to ensure that if matters of this description are reported to them then they are reported through the professional standards avenue. If this incident had been reported and investigated when it occurred it would not have raised its head at this time to coincide with other issues surrounding Ms Garces Rosero and Ms Richards”.[34]Mr Marsh recalls that Ms Gourley told him that she considered the complaint was malicious. Ms Gourley disagreed with that and said that she had believed Ms Garces Rosero. When asked about this during the disciplinary hearing she said that she might have had a conversation with the claimant [to the effect that the complaint was malicious] but she did not remember it. Ms Bradley, another prison officer and in my view a reliable witness, said that Ms Gourley had told her that the slapping allegation was false. I accept that Ms Gourley may now believe that Ms Garces Rosero was giving a true account but I think it unlikely that was her view at the time, given the recommendation she made.[35]Ms Gourley told the claimant about the complaint on 10th August 2009. On 16th, 17th and 18th August the claimant did not go to work and so Ms Gourley’s interview with him was delayed. He said he was unable to sleep and was feeling stressed by the behaviour of Ms Garces Rosero. In addition to making the slapping allegation Ms Garces Rosero had insulted him in Spanish in the yard. He was very angry about that. He phoned in on the 16th to say he would not be coming to work. The claimant was cross examined about an undated memorandum from him to someone called Vicky in the administration at the prison. It is imperfectly copied but it reads, so far as I can tell, as follows: “Vicky, the 16th 17th 18 Aug 2009 all the days I took off sick because of the harassment from Garces Rosero. I phoned the night orderly officer (senior officer Nelson Penfold) and told him that I had not slept all night and was afraid I would react badly if she continued to goad me. He would have documented this. Kind Regards Jimmy”.[36]Mr Holloway suggested that the bad reaction the claimant feared was of striking Ms Garces Rosero. The claimant refuted this and said he had not hit anyone in his life. I accept his evidence about that.[37]In the light of Ms Gourley’s conclusions a decision was taken by someone to move Ms Garces Rosero from the enhanced landing and, after some discussion, she lost her job as diversity representative. Ms Gourley gave evidence that she considered this too harsh a punishment, as did Ms Martin and Ms Blacklock, both governors. Both had some operational responsibility for the prison during this period. I did not hear from Mr Murray who was the governing governor and there was no statement from him.[38]Not for the last time in this case was it unclear who had taken a decision and the reason for it. I consider it overwhelmingly likely that the punishment was imposed by Mr Murray because he accepted that Ms Garces Rosero had made a malicious allegation against a prison officer.[39]One of the consequences for Ms Garces Rosero was the loss of her access to all areas of the prison, which made it more difficult for her to carry on her relationship with Mr Thorne. She was furious and made her views known, including through solicitors who wrote to the prison. Their letter was inaccurate in parts, no doubt reflecting Ms Garces Rosero’s instructions.[40]It was at this time that the claimant was asked whether he would like to work on D wing. This was the rehabilitation wing and a move there would lead to useful career development. The claimant agreed to this. He later heard that Ms Garces Rosero was boasting (as I find she was – see the SIR from PO Penfold) that she was responsible for moving him off the landing. The claimant became angry because he felt he may have been manoeuvred by a prisoner into working on a different wing.[41]Some time was spent by both parties in seeking to establish that the claimant had sought to have Ms Garces Rosero moved to a different prison (his case) or that he had sought to have her moved to a different landing (the defendant’s case). The balance of the evidence is that he wanted her removed from the prison, but it is not all one way. What is plain is that he wanted her to be punished and away from him.[42]It is regrettable that so many of the defendant’s witnesses asserted in their statements that after his move to D wing Mr Marsh had been ordered/directed/instructed not to go onto C wing. It is pleaded in the defence that he had been instructed not to go there. The claimant has always said that he never received such an instruction. With very little probing in cross examination it became clear that no witness was able to say that such an instruction had ever been given. Ms Martin came closest, saying “.. No. I mean I certainly did recall having a conversation about accountability and whether…. I will be absolutely frank. I do not know if I had that conversation specifically with Jim or not. But I think for both accountabilities, it was the right thing to try and keep them away from one another”.[43]Exchanges to this broad effect went on for some time. The evidence did not improve. The records show that, notwithstanding the fact that he was now working on D wing, the claimant was from time to time detailed to work on C wing. I am satisfied that no one instructed the claimant not to go onto C wing. This part of the pleading was based, through no fault of counsel, on sand. A rumour (that he had been instructed not to go on C Wing) gained currency by repetition.[44]On 20th December, when working on D wing, the claimant was escorting a group of women to C wing. Ms Garces Rosero started screaming at him, calling him a pervert and saying that he was not allowed to go onto C wing. It is pleaded in paragraph 11(iii) of the defence that the claimant “returned to C Wing on 20th December 2009 when he had been instructed not to do so and/or knew that he should not to do so in order to goad the Claimant”. There was no evidence of an instruction, no evidence that the claimant knew he should not be on C wing. Nor was there any evidence of goading, as Mr Holloway conceded. Ms Garces Rosero was dealt with at an adjudication hearing. The allegation at paragraph 11 (iii) of the defence was without foundation and I reject it.[45]Also in December, the claimant learned that Ms Garces Rosero had approached other prisoners to say that they had seen the slapping incident. Ms Richards was clear that she was asked to submit a statement saying that she had seen the incident when she had not. Mr Coleman, a serving officer, who gave evidence on behalf of the claimant, remembered Ms Richards saying to him that Ms Garces Rosero asked her to support her account and told her that the allegation was not true. Mr Charalambous, a governor, gave evidence to the same effect to the disciplinary hearing and at trial. PO Bradley’s lost SIR dated 21st December 2009 to which I have already referred sets out an almost identical account. Ms Richards denied that she was told the allegation was false. Irrespective of that, there is no question that Ms Garces Rosero was seeking to recruit witnesses to give false evidence in support of her account.[46]The claimant was concerned about Ms Garces Rosero’s behaviour towards him and what she was saying about him. He sought and was granted a meeting with the governing governor, Mr Murray. He was sympathetic to the claimant and wrote to him to the effect that he would look to moving Ms Garces Rosero.[47]Ms Garces Rosero was moved out of the prison in response to Operation Daimler in early January 2010. She had, by that stage, asked to leave the prison anyway. Within a very short time she approached an officer at the new prison, Bronzefield, and made an allegation which led them to alert the police. The prison notes suggest that the police informed those working on Operation Daimler within Downview that there may be an allegation of rape. The custody record does not suggest that the claimant was arrested for rape. Nonetheless, the allegation was extremely serious.

(i) and (ii)

[48]Before turning to the next stage in the chronology I shall consider whether the defendant has proved the allegations at 11(i) and (ii). If either is established then the claim fails because it is accepted that had the claimant conducted himself as alleged in either subparagraph he would have been dismissed.

Information about Mr Bevan

[49]In respect of both incidents, in addition to other evidence to which I shall turn, the defendant seeks to rely on evidence about what Mr Bevan said about the claimant to KQ and to a serving prisoner, IG, with whom he had a long standing relationship. The prison officer, KQ, is still employed by the defendant although he has been on sick leave for a long time and was unavailable to give evidence.[50]Mr Holloway also invites me to draw an inference adverse to the claimant from the fact that when Mr Bevan was asked in his police interview about the conduct of the claimant Mr Bevan made no comment. I do not accept his invitation. It is one thing to draw an adverse inference against a defendant in a criminal trial who refuses to answer questions about his own conduct, it is quite another to draw an inference from the silence of one man about the conduct of another person who was not there when the questions were being asked. The approach of the defendant on this was misconceived and unfair not least because the claimant was interviewed on two occasions and answered all the questions put to him.[51]I turn to what Mr Bevan is alleged to have said to KQ. KQ was a relatively new officer and about the same age as Mr Bevan, in his thirties. The two men were at a tattoo convention in September 2009. They both had a great deal to drink, according to the account KQ gave to the prison service at the time. Mr Bevan gave a lurid account of and boasted about his sexual exploits with prisoners. He implicated others, including the claimant, in sexual misconduct.[52]KQ was upset and distressed by the nature and extent of the corrupt behaviour Mr Bevan had spoken about. He was also shocked at the notion that Mr Bevan thought that he might wish to become involved in similar conduct. He spoke via Facebook to a friend on the staff, Ms Gainey. She advised him to contact the anti corruption unit, which he did. He sent a letter setting out his account of what had been said to him by Mr Bevan. He subsequently produced this as an exhibit to his police statement and to the brief statement prepared for these proceedings.[53]I have no reason to think that when KQ reported the conversation to the corruption unit he was giving other than an honest account of what he recollected being told by Mr Bevan. It has not been possible, because of his mental state, to test the accuracy of what he said.[54]To what extent Mr Bevan was telling the truth to KQ is not apparent. Mr Holloway submits, reasonably, that the fact that he incriminates himself renders his account more likely. As a general proposition, statements which incriminate the person speaking are likely to be true. It does not follow that everything else said is true. Nor does it follow that what is said about another person, even a close friend, is true. KQ records in his letter to the anti corruption unit that Mr Bevan had said that Ms Garces Rosero’s “recent accusation towards his best friend, Officer J Marsh were well founded. She had accused him of grabbing her buttocks. Officer Bevan said that Officer Marsh had also had sex with prisoner Garces Rosero previously.” That is the totality of the evidence of what Mr Bevan said about the claimant to KQ.[55]According to KQ’s letter it was he who asked Mr Bevan about the Control and Restraint incident involving RM to which I refer at paragraph 27 above. He describes some of the background and says “she had accused officer Marsh of ejaculating in her face and Officer Bevan of sticking his finger up her rectum. He didn’t confirm anything about Officer Marsh, but when I asked if he had done what she was accusing him of doing he said, yeah”. According to the letter Mr Bevan then went on to say he had punched RM to the face repeatedly. Three things arise: first no one, still less RM, had accused anyone of ejaculating in her face. KQ was starting from an entirely false premise. Second, RM had not specifically accused Mr Bevan of sticking his finger into her rectum and for the reasons I have already given it is overwhelmingly likely that no one did so – see paragraph 27. Third, there was no suggestion from RM that she had been punched repeatedly to the face and the medical examination revealed no injuries. It follows that either Mr Bevan lied about this incident to KQ or that KQ misunderstood or misremembered what he had said.[56]Ms Gainey in whom KQ confided before he wrote the letter, wrote in her statement for these proceedings not that KQ had asked Mr Bevan about the RM incident but that “[Mr Bevan] told KQ that the prisoner had accused James Marsh of ejaculating over her face and that Chris Bevan had stuck his finger up her rectum.” In her police statement Ms Gainey said that KQ told her that Chris Bevan had said to him “You know the allegation RM made where she alleged Jim Marsh had put his finger up her arse, I knew about it”. I pause there. This was different again. It was also wrong. According to Ms Gainey, KQ told her “Chris Bevan said it was true and that Jim Marsh did do that”. That is different from what KQ had said earlier. If it were said, it was untrue.[57]I have identified the very real difficulties with the evidence of what Mr Bevan is said to have told KQ about the RM incident because there is other evidence against which I can test it. The account given by KQ is plainly not reliable, either because KQ has misremembered it, or because Mr Bevan lied or both. I give no weight to anything else Mr Bevan is reported to have said to KQ about the claimant unless it is supported by other reliable evidence.[58]For completeness I note that Mr Bevan made allegations of improper behaviour against Mr Paske too. There appears to have been no basis for them. No action was taken against Mr Paske.[59]This part of the evidence demonstrates that inaccurate rumour was rife in the prison. There is a further example in Ms Gainey’s statement where she refers to the RM incident. “Apparently a planned intervention needed to be carried out and I believe there were no female staff on duty at that time…”. That was not true either and yet it had gained currency in the prison. It appears in a number of statements. It is wrong. Those who made the statements presumably believed they were telling the truth. It is salutary to remember that in the context of an investigation in a large organisation rumour and inaccuracy can and often do take hold. Having reflected on the many statements in this case, together with the oral evidence, I am quite sure that this happened here. It explains the very hostile approach taken to the claimant by the defendant at the time of these events and in this litigation.

The slapping incident(11(ii))

[60]It is convenient first to deal with the slapping incident (11 (ii)) since it was the first to come to light.[61]Apart from evidence about what Mr Bevan said, the defendant relies on the following (disregarding untested gossip and rumour):-i) the accounts of Ms Garces Rosero to Mr Hurley, Ms Gourley, to the police, to Ms Pearce, and to Ms Spencer ii) the various accounts given by Ms Noakes, a prisoner, who sadly died in prison some time agoiii) Ms Kimber’s account in evidence and on earlier occasions iv) IG’s account in evidence.[62]Ms Garces Rosero did not give evidence. I was told she is now living in Colombia. She gave evidence at the claimant’s disciplinary hearing, at the end of which the charge was dismissed. Having read the transcript of that hearing its outcome was unsurprising.[63]Mr Holloway sought to rely on the evidence of Ms Gourley and Ms Hill, a prison governor, to the effect that they believed Ms Garces Rosero. Their opinion as to the truth of a central allegation is irrelevant to my determination but it is relevant to the actions taken by the defendant at the time and so I have considered it. It is clear that Ms Gourley now believes the allegation because she had to coax it from Ms Garces Rosero. Having read and heard a great deal of evidence about Ms Garces Rosero I am satisfied that this was an act, designed to manipulate Ms Gourley, just as she manipulated her later on, complaining in floods of tears that people were making untrue allegations that she was having a relationship with Mr Thorne, which of course she was. Miss Hill considered the allegation to be true because of the way Ms Garces Rosero reacted to its dismissal. I do not think anything can be derived from that reaction which was at least as likely to have been brought about by her anger at not being able to have the run of the prison and so continue her relationship with Mr Thorne unchecked. The fact that Ms Garces Rosero was a manipulative person and a convincing (to some) liar does not mean that she was not telling the truth when speaking about the slapping incident but it does mean that her demeanour when complaining about it is of no assistance in determining whether she was telling the truth.[64]Mr Roy, on behalf of the claimant, relies on the fact that Ms Garces Rosero lied repeatedly about her relationship with Mr Thorne. I do not think that those lies establish anything other than a capacity to lie, about which there is not much doubt.[65]During the disciplinary proceedings Ms Garces Rosero was asked questions by Mr Traynor, the claimant’s representative. He asked, “when Mr Paske asked you about your relationship with Mr Thorne, did you admit it?” “No” “and it was happening?” “Yes”. “Is that not a lie?” “I would not say it is a lie, I was just omitting the truth”. Ms Garces Rosero omitted the truth on a number of occasions in respect of other matters. She fabricated bullying allegations against another prisoner (AF). Her diary entry for the 5th February 2009 records “complaint against AF”. She was asked about this and said, “at this time I believed there was something going on between Mr Thorne and AF so I put in something like a bullying complaint against her to cause her a problem”. She made the outrageous allegation that Ms Gourley told her that she (Ms Gourley) had seen officers raping prisoners. I have no doubt that Ms Gourley said no such thing and had not seen any such thing. Ms Garces Rosero was lying.[66]In the same interview Ms Garces Rosero accused others of lying when their accounts differed from hers eg Ms Kimber, Ms Gourley and Mr Paske.[67]There are a number of reports in the records of Ms Garces Rosero’s difficult behaviour during her time in custody. Prisoners and staff had been subject to her vocal outbursts and to her manipulation. She was clearly given a great deal of freedom within the prison as a result of her diversity role. She was rude to other prisoners and to male and female staff members, treating prison officers on occasion with contempt. She blackmailed (as she put it) another officer because she knew of his relationship with a prisoner. There is no need to rehearse any of this at greater length.[68]As to the detail of the incident, she gave little when she approached Mr Hurley in early 2009. I infer nothing from that since this was an initial report which came to nothing as a result of Mr Thorne’s conduct. When interviewed by Ms Gourley in 2009 (see paragraph 32) she said the incident had taken place in her cell. By the time she made her police statement she said it had taken place in Ms Kimber’s cell. Ms Kimber said at all times, including in her witness statement for these proceedings, that it had taken place in her own cell. At trial she said, for the first time, that it had happened in Ms Garces Rosero’s cell, although she added she was not sure. When pressed about this she insisted it had taken place in Ms Garces Rosero’s cell and stuck to that account. Even allowing for the passage of time it is not easy to explain the change in her account or the difference between the original accounts. The location of the incident was not a trivial detail.[69]When Ms Kimber and Ms Garces Rosero gave Ms Gourley their accounts of what had happened in the cell they used the same words. This is inherently unlikely. Ms Gourley believed they had colluded, with good reason. Again, this does not mean that the underlying allegation was not true but, coupled with the disparity in respect of which cell it occurred in, it does not help the defendant’s cause.[70]Ms Garces Rosero’s account of the incident at the disciplinary hearing was different from the one given to Ms Gourley. After setting out that it had taken place in a cell other than her own and that she had been in the cell with Charlotte Noakes and Nina Kimber she said, “Nina was sitting on the chair playing the guitar, Charlotte was on the bed and I was just kind of lying down like that near Charlotte and we were just listening to Nina. Yes, we were in Nina’s room…and so as I was saying I was with Charlotte, Nina was sitting down and I was just listening to Nina playing the guitar and so when Officer Chris Bevan and Mr Marsh they came to the room. Officer Chris Bevan, he stood by the door and Mr Marsh just came straight grabbed my bum and then, my reaction was to sit down and, as soon as I sit down, he touched my leg. Okay. I could not believe it. I was very angry and we did not even know what to do.” She went on to describe discussing the incident with Mr Hurley at some length, concluding by saying “in the end we agreed that I did not want to be moved and for that reason I did not want to make it official.” This is rather different from Mr Hurley’s account.[71]Mr Roy and Ms Cashman have produced an exhaustive list of the problems with Ms Garces Rosero’s evidence in respect of this incident. Suffice it to say that she was not consistent. What began as a slap on the bottom became “smacked, grabbed and then squeezed”. When speaking to Ms Gourley, Ms Garces Rosero said that after the slap she had been very angry, jumped up and shouted at Mr Marsh. Ms Kimber said that Ms Garces Rosero laughed it off. They cannot both be right. To the police Ms Kimber said that Ms Garces Rosero was angry. Ms Kimber’s two accounts are different.[72]At trial Ms Kimber described a slap. She also set out in some detail the layout of the room. In re examination Ms Kimber was asked a number of detailed questions about the layout of the room. She gave her answers with confidence. They were in fact quite different from the account she had given to the police during Operation Daimler. Mr Roy submits that is because she was describing a different cell on each occasion. There is force in that submission. She was then asked this: Q You said you and Ms Rosero were on the bed. You have just described the layout. Which of the two of you was closer to the door? A I think it was myself, I can’t remember. Q You can’t remember? A I can’t remember right now, sorry. This was a simple question. Given the careful and apparently plausible description she had just given as to who was sitting where on the beds it is difficult to see why she could not give this evidence. It undermined her credibility, particularly when considered with the earlier different account about the layout of the room.[73]In addition to her account of the incident with Ms Garces Rosero, Ms Kimber gave an account of having been sexually assaulted by a current serving prison officer during an incident when she was being restrained. It is most unfortunate that the defendant considered it appropriate to adduce this evidence in these proceedings. The same allegation had previously been made, investigated and dismissed by the defendant some years ago. Its purpose was to undermine the credibility of a serving prison officer who was giving evidence on behalf of the claimant.[74]This was a side issue in the litigation and there is no need to set it out in detail. Suffice it to say that I accept the evidence of the prison officer. I do not accept Ms Kimber’s account of that incident nor do I accept her account of the incident concerning Ms Garces Rosero.[75]I have already referred to the evidence of two prison officers about other prisoners being asked to give false support to Ms Garces Rosero’s account. Mr Coleman, another prison officer, also received a complaint from a prisoner that Ms Garces Rosero had asked her to go to the newspapers when she was next out on temporary licence and make allegations about the claimant. He did not do much about it, as Mr Holloway pointed out, but I accept the complaint was made.[76]The defendant seeks additionally to rely on an interview of Ms Noakes by Ms Pearce. Ms Noakes’ history is extremely troubled. Initially (ie at the time of Ms Gourley’s investigation) she denied anything happened, then said she could not remember anything. It was later thought that perhaps she had lied because she had some sort of relationship with Mr Bevan and some sort of disappointment with Ms Garces Rosero. In her interview with Ms Pearce she supported the allegation but she did not want to give evidence to the disciplinary hearing and did not do so. She was interviewed for the purposes of these proceedings and the notes of her interview were disclosed in response to the abuse of process argument. At this stage she supported the account of Ms Garces Rosero. She did not make a statement. She died in the summer of 2016. I do not place any weight on any of her accounts.[77]IG, who had a long standing sexual relationship with Mr Bevan inside and outside of the prison, said that Mr Bevan had told her that the claimant had slapped Ms Garces Rosero. He may well have said that but in the light of my views of Mr Bevan’s reliability and credibility I give no weight to it. I bear in mind that much of what Mr Bevan is said to have told KQ about his relationship with IG was said by her at trial to be untrue. I accepted her evidence about that. There is no need to rehearse the detail.[78]The claimant has denied this incident in testing police interviews, to Ms Pearce, to the disciplinary panel and at trial. I am not satisfied that the claimant slapped or otherwise assaulted Ms Garces Rosero.

Spiked alcohol and sexual misconduct/rape (11(i))

(i) )

[79]Ms Garces Rosero alleged in January 2010 that sexual intercourse with the claimant occurred on the night of Christmas Eve 2007. Whilst there was a suggestion that this was rape and was referred to as such in the submissions of both counsel, Ms Garces Rosero did not so describe it. I suspect the assertion that this was rape may have been because of the suggestion that she was very drunk or because the police officers were of the incorrect view that a serving prisoner does not have capacity to consent. In any event she mentioned the incident to no one until after she had been moved from Downview ie over two years later. I need no persuasion that to delay a complaint is no evidence that it is untrue, but delay was not generally Ms Garces Rosero’s way of dealing with things. Nor does there seem to have been any change in the way she conducted herself with the claimant – until nearly a year later, provoked by her irritation at having been reported by the claimant for rudeness to Mr Bevan. Given her generally very vocal approach to so many things and her ready willingness to manipulate others to her advantage I find it inherently unlikely that had she been subject to serious sexual assault or complied with sexual misconduct she would not have complained loudly to someone or sought to use it in some way to achieve a hold over the claimant. There is good evidence of her having done so on other occasions (see the evidence of Ms Bradley, a prison officer). Her suggestion to the police that she was ashamed is wholly implausible, given her general conduct. I take into account her relaxed approach to the truth when it suits her, as described above.[80]Ms Pearce considered Ms Garces Rosero’s account to the police as part of her investigation. She concluded that she could not advise the defendant that there was a case to answer. Nonetheless she interviewed the claimant about it in December 2011. She interviewed Ms Garces Rosero in January 2012. Ms Garces Rosero said that she did not want to pursue this complaint. Thus the case against the claimant on this issue was weaker than it was when the CPS decided not to charge the claimant. Nonetheless the defendant pursued the allegation at this trial.[81]Ms Garces Rosero had told the police that on Christmas Eve a bottle of alcohol had been left in her cell. She drank it. She asserted that it may have been spiked since she did not have a clear recollection of what happened next but she had sexual intercourse with the claimant. She also made allegations about sexual activities with Mr Bevan on the same occasion. She later gave a detailed account and said she had been embarrassed to do so earlier. I do not accept that she was embarrassed, given the broad range of her activities, sexual and otherwise in the prison.[82]The defendant’s submission that the finding of prescription sleeping tablets in the claimant’s flat in February 2010 supports the allegation that alcohol (if there had been any) had been provided by and was spiked by the claimant in December 2007 is fanciful.[83]There was no credible evidence in support of this allegation. It should not have been pursued in these proceedings.[84]It is not necessary to rely on the evidence of the claimant but I record that I accept his evidence about this. I reject the allegation.

Allegations 11(iii) to (x)

[85]The balance of the allegations in paragraph 11 of the defence add nothing to the defendant’s case and I do not propose to deal with them in any detail. I have already dismissed 11 (iii). As to (iv) I consider it unlikely that the claimant would have obtained a disposable camera for Ms Rosero to take pictures for her son given the hostility between them but even if I am wrong about that this was not misconduct of an order that would have led to dismissal. 11(v) relies in particular on the evidence at trial of Ms Richards. I did not find her credible on this or in many of the details she gave about the activities of prison officers on the landing on C wing.[86]Ms Bradley’s recollection of the claimant describing to her an occasion when Ms Garces Rosero and another inmate sandwiched him between them and were dancing with him may well be accurate. The claimant told Ms Bradley that it was all in good part. She made it clear to him that the prisoners had overstepped the mark and that he should be careful. She did not submit a SIR and I am satisfied that if this were a matter of concern she would have reported it.[87]The allegation at 11(vi) that the claimant made inappropriate comments and/or exhibited over familiar, inappropriate and/or suggestive conduct towards prisoners including Ms Garces Rosero relies principally on a mixture of untested assertions in police witness statements, many of which were obtained at a time of feverish inaccurate gossip within the prison and, in part, by Ms Richards and IG at trial. I do not consider the evidence reliable and I do not find this allegation proved.[88]I reject the suggestion that the claimant brought drugs or alcohol into the prison. He did bring in chocolates at Christmas, as he admitted. This was a breach of the rules. I do not think it in the slightest likely that this would have led to any disciplinary action.[89]Two officers (Mr Ivens and Ms Gainey) gave accounts of two separate occasions that they had observed separately, in which the claimant had spoken in an insulting or threatening way to others about Ms Garces Rosero. I think they were probably accurate in their recollection of these two incidents but neither of them considered what was said of sufficient importance to be reported at the time and given my finding that the claimant had been subject to false allegations for which she was responsible, as the prison also found, it is unlikely that this conduct would have led to any disciplinary action beyond, possibly, advice or possibly a warning.[90]The suggestion from Mr Bevan that the claimant was a cocaine user is unreliable. There is nothing to support it. The fact that the claimant admittedly tried cocaine in his youth (as his sister confirmed he had told her many years ago) and did not mention it to the psychiatrists in these proceedings adds nothing.[91]That leaves two further allegations: that he failed to report his knowledge of the unlawful conduct of Mr Thorne and failed to report the conduct of Mr Bevan.

Mr Thorne

[92]It was plainly well known among the prison officers and the inmates that there was something going on between Ms Garces Rosero and Mr Thorne. The claimant said in his disciplinary interview that they were all but holding hands as they went around the prison. After that interview he was invited to resume his post as prison officer. Whatever the precise technical position his suspicion of the relationship was not a bar to his continued employment or even a reason to discipline him at that time or at any time before his dismissal. I disregard it.

Mr Bevan

[93]As to his knowledge of the conduct of Mr Bevan it is the defendant’s principal contention that the claimant and Mr Bevan indulged together in sexual misconduct. The fall-back position is that the claimant must have been aware of Mr Bevan’s misconduct including his long-standing relationship with IG and so should have reported it to the defendant. His failure to do so was serious misconduct which would have led to his dismissal.[94]I have rejected the allegations of sexual misconduct against the claimant. I turn to the fall back position. The claimant was a very close friend of Mr Bevan. During the police investigation and thereafter he always maintained that his friend was a good officer. He was adamant that if there was anything untoward in his behaviour he would know about it. Having read the papers disclosed by the police, the claimant accepted that Mr Bevan had been guilty of comprehensive misconduct. However, he has always said that he had no idea about it. Mr Holloway submits that since it was his own evidence that if there were any truth in the allegations he would have known about it, he must have known about it.[95]IG believes the claimant knew about her relationship with Mr Bevan, her view on this having become rather firmer since her police interview when she had said he may have known. Her belief is founded on the fact that Mr Bevan had told her that when the claimant next went on holiday they could stay in his flat. This was never discussed with the claimant, he says, and as a matter of fact it never happened. It comes within the same category of observation from Mr Bevan as his assertion to KQ that at the end of her sentence IG was going to leave her partner and take up with him. That was never going to happen, she said.[96]IG also said that the claimant had told her that Mr Bevan had asked him to look after her when she moved wing and the claimant was on duty. The claimant denied that. IG was a somewhat complicated witness. She was still affected by the death of Mr Bevan and at one point in her evidence became extremely uncooperative. I found much of her evidence to be reliable but on the topic of the claimant on this issue and others (see paragraph 87) I considered her less credible. I preferred the claimant’s evidence.[97]At Schedule A of the defence and during the trial it was asserted that the claimant and Mr Bevan often worked night shifts together and misbehaved together. The claimant always denied that he had worked frequently at night with Mr Bevan. He was telling the truth about that as the defendant’s documents demonstrated. During Operation Daimler the police carried out an analysis of the gatekeeper’s daily occurrence books for the period 4th December 2008 to 4th February 2010. The analysis showed (and no defence witness said otherwise in the end) that the claimant and Mr Bevan had been on night duty together during that period for at most a week and a half – a week in February 2009 and two nights in December 2008.[98]Whatever the claimant’s failings he was proud of his job in the prison service. This was plain from evidence from numerous officers and from the evidence of his sister and his former long term partner. He is a man of good character. There was evidence from reliable witnesses that he was old school and a stickler for discipline. It is highly unlikely that, had he known of Mr Bevan’s misconduct, he would have aligned himself so closely with him at the time of and after the police investigation. It would have been extraordinarily foolhardy to assert, as he did in these proceedings, that if Mr Bevan had been misbehaving he would have known about it if, in fact, he did know about it. He made no secret of the fact that he had been in touch with Mr Bevan in the period after his home had been searched. I do not accept that he was aware of Mr Bevan’s misconduct.[99]It follows therefore that the defendant has made out none of the specific allegations. The incidents that may well have occurred (the dancing and the unpleasant remarks) do not begin to prove that the claimant was liable to dismissal in any event and his denial of both do not undermine his credibility on the main issues. I had the opportunity of observing him throughout the trial. He gave evidence on two occasions and was subjected to perfectly proper, prolonged and detailed cross examination. Notwithstanding the fact that he did not admit the conversation with Ms Bradley or recall the conversations remembered by Ms Gainey and Mr Ivens I am satisfied that on all the important issues his evidence was accurate and truthful.

The claim

[100]I turn, at last, to the claim.

Legal Framework

[101]Cases arising out of stress or other incidents at work depend on their facts. There is no need to cite authority for this proposition.[102]I adopt the summary of the law on the issues of foreseeability and remoteness set out at paragraph 119 of the judgment of Underhill LJ in Yapp v Foreign and Commonwealth Office [2015] IRLR 128. It is preceded by a magisterial review of the law in this area from the perspective of both tort and contract law. Underhill LJ concludes and I agree that four propositions may be derived from the cases:-(i) “In considering, in the context of the common law duty of care, whether it is reasonably foreseeable that the acts or omissions of the employer may cause an employee to suffer a psychiatric injury, such an injury will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some particular problem or vulnerability on the part of the employee - Hatton v Sutherland [2002] EWCA Civ 76.(ii) That approach is not limited to cases of the Hatton type but extends to cases where the employer has committed a one-off act of unfairness such as the unfair imposition of a disciplinary sanction - Bristol City Council v Deadman [2007] EWCA Civ 822; Croft v Broadstairs & St Peter’s Town Council [2003] EWCA Civ 676; (also Grieves v FT Everard & Sons Ltd reported as Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39).(iii) However, in neither kind of case should that be regarded as an absolute rule: Hatton contains no more than guidance, and each case must turn on its own facts - Hatton itself, but reinforced by Barber v Somerset County Council [2004] UKHL 13 and Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6.(iv) In claims for breach of the common law duty of care it is immaterial that the duty arises in contract as well as tort: they are in substance treated as covered by tortious rules - Walker v Northumberland County Council [1995] IRLR 35, Hatton. In order to establish whether the duty is broken it will be necessary to establish, as above, whether psychiatric injury was reasonably foreseeable; and if that is established no issue as to remoteness can arise when such injury eventuates”.[103]In the context of this case I add that it is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee - see Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International: HL 12 Jun 1997 and for an early application of it in the context of psychiatric injury caused by wrongful suspension see Gogay v Hertfordshire CC [2000] IRLR at 703, a decision upon which Mr Roy relies in support of the claim in contract.[104]As to claims for breach of that (Malik)duty Underhill LJ concluded that the contractual test of remoteness will be applicable.[105]It is not the claimant’s case, nor could it be, that the ordinary vicissitudes of life as a prison officer caused him injury. Nor is it suggested that he was particularly vulnerable. After all, he had been employed as a prison officer without injury for several years. The focus of the claim is the effect upon him of the behaviour of Ms Garces Rosero, the way the defendant dealt with it at the time and thereafter, including at the time of Operation Daimler, his suspension and all that followed. He was faced, Mr Roy submits, not with the ordinary storms of life (as described by Moore-Bick LJ in James-Bowen v Commissioner of Police of the Metropolis [2016] EWCA Civ 1217) but with a hurricane. The observation that an employer is usually entitled to assume that an employee can withstand the normal pressures of the job (see Hatton at paragraph 43) acknowledges that this is not invariably the case. It depends on the facts. Mr Roy submits that injury was foreseeable at various stages here because of a combination of factors which rendered events outside the ordinary storms of life.[106]I accept that the work of a prison officer is stressful. If expert evidence of that is needed it is provided by Dr Vincenti, the consultant psychiatrist relied on by the defendant, who has experience of working in a prison environment. At the time of these events there was scant evidence that such policies to manage stress as were in existence were implemented. That failure is evidence of the defendant’s general approach to its staff but it does not of itself found a claim in negligence (or breach of statutory duty). The stressful work is the context of the claim and the question of foreseeability is considered in that context. Mr Roy reminds me that one of the matters referred to in Hatton as of importance is the question “are there signs that others doing this job are suffering harmful levels of stress?” One officer (not the claimant) had been signed off sick in January 2010 with stress arising out of the defendant’s failure to deal with harassment of him by prisoners. Thus the claimant was performing a role that was in itself stressful and there is some evidence that as at early 2010 at least one officer was suffering harmful levels of stress as a result of harassment by prisoners.[107]It is helpful to consider the claim chronologically. January – July 2009[108]Although it is the claimant’s case now that Ms Garces Rosero began a campaign of harassment against him from late 2008/early 2009 I do not consider that what occurred up to September 2009 can be characterised thus.[109]Mr Roy correctly submits that the defendant, as a result of the actions of Mr Thorne, failed to investigate the malicious complaint against the claimant in early 2009. He submits that had a proper investigation taken place in early 2009 the conclusion would have been that the complaint was malicious. That is probably correct given what happened in August 2009. Just as in August 2009, it is unlikely that the case would have gone beyond the simple investigation.[110]Mr Roy then submits that had the complaint been investigated when it should have been, Ms Garces Rosero would have been moved out of Downview much earlier and so she would have made her next allegation sooner. The claimant would have been investigated by the police in the usual way and would have been spared the trauma of Operation Daimler, the high profile search and prolonged suspension. DI Sidaway, the officer in charge of Operation Daimler confirmed that had the rape allegation been made in (say) June the claimant would have been investigated immediately. This would have been before KQ sent his letter to the anti corruption team.[111]Whilst I have accepted that had the matter been investigated in January 2009 there would have been a finding that the complaint was malicious, the findings I am asked to make about the consequences are speculative. It is possible that Ms Garces Rosero would have been moved before June 2009 but it is equally possible that she would still have been in the prison at the time of the letter from KQ to the anti-corruption team in September 2009 and I cannot ignore that Operation Daimler was the eventual catalyst for her removal. Given the circumstances in which her second allegation came to be made (ie after she had been moved from Downview, when her relationship with Mr Thorne was under intense scrutiny, and she was denying it) I cannot say that it is probable she would have made the allegation sooner and in any event by (say) June 2009 had she been moved earlier.[112]I am satisfied that Operation Daimler, the high profile search and subsequent arrest (and indeed any search and arrest) were not foreseeable as a result of the failure to carry out an investigation in January 2009. No injury was foreseeable. There was no breach of duty in tort. Even if the failure to conduct an investigation in January 2009 was a breach of contract (and it is not necessary to decide that) any damage was too remote. August-September 2009[113]I am satisfied that as of August 2009 the claimant knew, as did the defendant, that Ms Garces Rosero had repeated the allegation against the claimant first made in January. The defendant had also received the claimant’s SIR submitted in February 2009. The claimant had also been insulted by Ms Garces Rosero in the prison yard which had angered him.[114]Mr Roy submits that the note the claimant wrote to Vicky in August 2009 (see paragraph 35 above) put the defendant on notice that he was at risk of injury. I do not accept that. At most he had lost some sleep. After that very short period he continued to work normally.[115]As I have said already I reject the criticism of the way Ms Gourley conducted the investigation. The punishment of Ms Garces Rosero was severe, stripping her of her diversity role and of her privileged status and moving her to a different wing. It reflected the defendant’s view that her complaint was malicious and was clearly supportive of the claimant, whatever Ms Garces Rosero was saying about the fact that she had engineered his move to D wing.[116]Mr Roy submits:-i) that the defendant knew that the work of a prison officer was stressful ii) that the defendant must have known that which is generally well known (and reflected in case law) namely that prisoners make false allegationsiii) that the defendant knew, by September 2009, that this was a malicious allegation. All of this is correct. However I do not accept Mr Roy’s submission that it therefore follows that it was a breach of contract or a breach of the defendant’s duty of care not to move Ms Garces Rosero from the prison at that time. The punishment was severe and proportionate to Ms Garces Rosero’s conduct. The defendant was not required to move her to a different prison at that stage and it was not foreseeable that not doing so would lead to any injury to the claimant. There was no breach of duty or breach of contract. October - December2009[117]I accept that post September 2009 Ms Garces Rosero was doing what she could to make life difficult for the claimant (complaining to her solicitor in October 2009, trying to persuade other prisoners to give false evidence, asking another to go to the press). This was harassment of which the defendant was aware; the claimant recalls submitting about 10 SIRs during this latter period and I accept that he did so.[118]In October 2009 the claimant complained to Mr Paske that there had been no effective punishment of Ms Garces Rosero and in the same month submitted an SIR complaining that her conduct was “impacting on my well being”. Mr Murray, the governing governor was made aware of the complaints and met the claimant. He agreed to consider moving Ms Garces Rosero from the prison. I do not think a delay of just over two months from that conversation to her removal was a breach of contract nor did it expose the claimant to risk of injury and as a matter of fact the claimant did not suffer any injury. The confrontation with Ms Garces Rosero on 20th December was embarrassing for the claimant but he was vindicated in full at the adjudication. He was, at most, very angry. He was not ill.[119]Once Ms Garces Rosero had gone from the prison there is no evidence that the claimant was even out of sorts, or losing sleep, still less suffering from any injury.[120]Accordingly I find there was no breach of contract nor breach of duty at common law by the defendant between August 2009 and the departure of Ms Garces Rosero from the prison and the claimant suffered no injury.

Operation Daimler

[121]Operation Daimler was led by the police from October 2009. The defendant was in a supporting role, its employees being the subject of the investigation. The defendant seconded a member of MOJ staff to gather information/intelligence. All inmates at Downview were invited by the police to raise any concern they had. Mr Roy complained that this was likely to attract false allegations. That is always a risk when investigations take place in an institution but the police were entitled to make a judgment and a request for evidence is entirely standard procedure. It was imperative to ensure that all matters were raised, given the explosive content of KQ’s letter. It was for the police then to sift allegations, which they did.[122]Members of prison staff who could be trusted by the police worked with them and provided information to them. They were, however, affected by the rumour mill within the prison. Thus in several witness statements the following identical paragraph appears “Another tasking meeting took place on 2 December 2009 where a general discussion took place to bring the police up to speed with procedures at Downview. We were also aware at this time that Darren Paske had carried out the fact finding investigation into James Marsh and his conduct in respect of use of force against [RM]. It was deemed by him that there was no case to answer. We were aware that Paske and Marsh were both C and R instructors and close friends.” Several points arise from this: first, Mr Paske and Mr Marsh were not close friends. There is no evidence for that assertion. Second, the investigation, if it existed, has disappeared and no explanation has been given for that. Third, the purpose of the last sentence was to undermine the conclusion of the investigation and inculpate Mr Marsh. Fourth there was no case to answer against Mr Marsh. In short the police officers at the meeting were given a wholly false impression. Ms Hill and the Use of Force forms told a different story (see above) and yet trusted employees were recycling inaccurate gossip and rumour. The matter was compounded by the fact that the police were unaware of their own investigation which had been closed after an assessment of the evidence – which included, as Mr Holloway pointed out, the Use of Force forms to which I have already referred. This episode reflects well neither on Surrey police nor the defendant but it does not advance the claimant’s case. The police were bound, in the exercise of their public duty, to reinvestigate the complaint concerning RM and they did so. RM would have nothing to do with them and so the case was closed once more.

Failure to provide exculpatory material

[123]The next limb of the claimant’s case arises out of the alleged negligent failure/breach of contract of the defendant to provide to the police exculpatory material about the claimant. That failure led, Mr Roy submits, to the search of the claimant’s home in the circumstances I have described and to foreseeable injury. The defendant knew that:-i) Ms Garces Rosero had made a malicious complaint and had been punished ii) she was making attempts to get others to make false complaints against the claimant, and iii) there was nothing in the RM incident.It follows, he submits, that a duty arose to provide to the police all exculpatory material before the police obtained a search warrant.[124]Mr Roy relies in support of this proposition principally upon Holladay v East Kent Hospitals NHS Trust [2003] EWCA Civ 1696. There, a nurse was arrested in front of patients and colleagues because his employers had told the police that he was one of two suspected wrongdoers and he had in his possession a controlled drug which the police confiscated. In fact, one of his managers had given him the half tablet found in his possession just before the police arrived. She did not tell the police.[125]This case is of limited assistance to the claimant. The facts are very different, the most obvious being that the manager in Holladay knew that she had given the nurse the half tablet the police found in the nurse’s possession and did not say so. It was not there disputed that the defendant was in breach of its implied duty of trust and confidence (the Malik duty) as described by the Court of Appeal in Gogay. The claim failed on causation, the judge finding that the arrest would have occurred in any event. That finding was the focus of the appeal. The Court of Appeal emphasised that the question was not what might have happened in different circumstances (eg whether he would have been arrested in any event) but whether the respondent’s breach of duty was a material cause of the arrest: at paragraph 32 Scott-Baker LJ said: “The critical question, it seems to me, is not what might or might not have happened in different circumstances, but whether the respondent’s breach of duty caused the appellant to be arrested. I accept the appellant’s argument that the respondent’s breach of duty does not have to be the sole cause of the arrest, or even the dominant cause, as long as it was a material cause: see Bonnington Castings v Wardlaw [1956] 1 All ER 615 at 618-619, [1956] AC 613 at 621. Mr Geoffrey Cox QC, for the appellant, relied on a passage in the judgment of Devlin J in Heskell v Continental Express Ltd [1950] 1 All ER 1033 at 1047: ‘Where the wrong is in tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant: see Minister of Pensions v Chennell [1946] 2 All ER 719, [1947] KB 250) per Denning J.’ Any doubt that the rule is the same in contract was dispelled by County Ltd v Girozentrale Securities [1996] 1 BCLC 653.’[126]DI Sidaway confirmed in evidence that the officer who obtained the search warrant for the claimant’s property relied before the magistrates on information received by Surrey Police that “James Francis Marsh is responsible for the rape and sexual assault of female prisoners (plural).” She accepted that, assuming the reference to prisoners in the plural is correct, then one of them was Ms Garces Rosero, the other must have been RM. The information being relied on must therefore have been the Mr Bevan information and, probably, information from Ms Garces Rosero. If the RM incident was indeed referred to or relied on then the requesting police officer should have told the magistrates about the previous police investigation too. Whether she did or not is unclear but assuming that she did not the responsibility for that lay with the police; it was, after all, their investigation. The fact that the defendant had not by that stage reminded the police of their own investigation was unfortunate but it was not the cause of the issue of the warrant which, irrespective of the RM matter (which did not figure by the time of the arrest – see the custody record) would have been issued in any event because of the complaints from Ms Garces Rosero, the second of which was very serious.[127]I am satisfied that the facts do not give rise to a duty at common law to provide all the exculpatory material to the police before the decision was made to search the claimant’s home. Injury was not foreseeable. There was no breach of contract either. Even if I am wrong about that I am quite sure that the fact that the defendant did not provide exculpatory material to the police before the search was not a material cause of the search or the later arrest. The arrest and search were the inevitable result of the two complaints from Ms Garces Rosero which required police investigation. All that was required to arrest the claimant was reasonable grounds for suspicion. The same was required (in addition to other matters about which no complaint has been made) in order to obtain a search warrant. Even if the police had been told that the first allegation had been malicious, they were bound to pursue both allegations since the first had been investigated at a prison which was at the centre of a corruption inquiry.[128]It is not clear at what stage all the material was provided to the police but the arrest (on 31st March) related only to the Garces Rosero complaints (see the custody record). By May the police were of the view that the evidence was weak and by June told the prison that no further action was likely and the CPS advised against charges. Although a great deal of energy was spent on this aspect of the case it does not advance the claim.

The decision to suspend

[129]The decision to suspend was taken not at prison governor level, as pleaded, but by Mr Carroll, a more senior civil servant responsible for prisons across the South East of England. He was at pains to make clear in oral evidence that he also consulted his managers before suspending the claimant. Mr Carroll had no direct involvement with the claimant. He relied on briefings from others and from occasional attendances at meetings of the police/prison staff under the auspices of Operation Daimler. The briefing note he received before the decision to suspend was made contained important errors in respect of the incident with RM. Mr Carroll was unaware of these and other inaccuracies until the trial of this action.[130]Mr Carroll was quite properly cross examined at some length as to the propriety of the decision to suspend the claimant. It was clear that he had given little, if any, individual consideration to the claimant, seeing those who were suspended as a group of wrongdoers. For him the decision was very straightforward, suspension was inevitable in light of what was known. It is for that reason, no doubt, that Mr Roy referred repeatedly to the fact that the response of the defendant to these events was “knee jerk”, a phrase imported from the judgment of Hale LJ as she then was in Gogay.[131]I accept that Mr Carroll should have been given full information about the RM incident. I also accept that his attitude to the issue of the claimant’s suspension when he was in the witness box was somewhat cavalier. He should have recorded the reasons for the suspension in accordance with the defendant’s own procedures but had given scant regard to them. All that having been said I am quite satisfied that his conclusion that the claimant should be suspended was correct. The suspension was neither a breach of contract nor a breach of the defendant’s duty of care to the claimant. On the contrary it was inevitable for these reasons, all of which emerge from the documents and all of which was known to Mr Carroll at the time: -i) here was a prison officer about whom an extremely serious allegation had been made which had not previously been known to the defendant and which had not previously been investigated ii) the allegation came in the context of a broader investigation into events at the prison arising out of KQ’s account of Mr Bevan’s conversation with him. This is something that Mr Roy overlooks in his otherwise comprehensive analysis of the state of the evidence at this stage iii) the fact that her previous allegation had been considered malicious by the defendant was not conclusive of the matter, given that subsequently Mr Bevan had apparently implicated the claimant in that incident. The defendant was not required at that stage to subject Mr Bevan’s information to close analysis nor would it have been right to assume that because the slapping allegation had been dismissed (without information from Mr Bevan) the same would apply to the more serious allegation. This too is overlooked by the claimant’s legal teamv) the suggestion that the claimant could have been placed on administrative duties at Downview was wholly unrealistic. Interviews were taking place throughout the prison. He would have been in contact with witnesses or potential witnesses. vi) the defendant’s procedures set out in the “Conduct and Discipline Manual” required consideration to be given to deployment at an alternative establishment. Mr Roy submitted that the claimant should have been deployed at the neighbouring male establishment. This too was unrealistic given the nature and seriousness of the criminal conduct alleged by Ms Garces Rosero which at this stage the police considered credible. This was not like, for example, the RM incident which, though the conduct alleged was serious, led to no suspensions because it was known very quickly that the allegations were untrue. Mr Carroll said that if he had considered this option he did not consider it for very long. I agree that his tone suggested that he did not give serious consideration to this option but in the circumstances he was right to dismiss it.[132]There was no breach of contract or of the common law duty of care in the suspension of the claimant.

The execution of the search warrant

[133]The police and prison service worked together in respect of arrangements for the search of the claimant’s home. The police wanted him removed from the prison so they could continue their investigation without impediment. It was agreed that the claimant would be suspended at about the time of the search.[134]The police search was characteristic of large investigations (very early start, large numbers of police). DI Sidaway said that had they been asked to adopt a lower-key approach to the arrest (what was really at issue was the execution of the search warrant) the request would have been considered. There was no contractual duty upon the defendant to make such a request nor did the duty of care to the claimant in tort require it. Whilst the circumstances of the search were foreseeably very embarrassing and distressing for the claimant there was in my judgment no foreseeable risk of injury resulting from it and no duty upon the defendant to prevent it.[135]When Mr Cummings was to be arrested at a later stage the prison asked for it to be done discreetly and it was. The arrest of the claimant was carried out by appointment.[136]I rather doubt the police would have agreed to a request to carry out a low-key search at the outset of a major investigation but, whatever their approach, there would have been a search, probably in the early morning, probably with only two officers. The difference between the two types of search did not make injury (as opposed to profound embarrassment) foreseeable.[137]Several police officers spent hours examining all the claimant’s possessions in his small flat. They seized a packet of sleeping tablets prescribed for the claimant’s mother which she had given him to take when having difficulty sleeping during the day when on night shift. His computer and mobile phone were removed and subject to detailed analysis. Nothing was found save a text from the claimant to Mr Bevan from a holiday in Thailand in which he commented on the sexual prowess of a woman he had met. This, like other sexist or chauvinist remarks attributed to him from time to time do not reflect well on the claimant but it does not begin to support any sort of claim of misconduct, still less a criminal offence. Suspension[138]Ms Martin was given the task of attending to suspend the claimant at his home. She did so and gave him a letter setting out the support available to him. She also asked him whether he needed any support staff care or welfare. She accepted fairly that this was a very shocking situation for the claimant and he may not have taken in everything that was said to him. She left the letter with him.[139]The defendant’s procedures required that the suspension should be reviewed every 4 weeks. The reviews should have been recorded. There are a handful of records reflecting very few cursory reviews. In the period up to September 2010 when the claimant was still on bail, suspension was justified on the basis that nothing had changed. I acknowledge that there is scant documentary evidence of anyone considering the matter. It may well be that because the claimant was suspended on full pay and the police were investigating no one thought it necessary to give much thought to the matter.[140]During the time he was being investigated by the police the claimant had pastoral meetings with Mr Charalambous, a governor, on two or three occasions. Thereafter he met reasonably frequently with governor Boulstridge whose role was to support him during his suspension. He knew him well. They would meet at the pub. The claimant said that Mr Boulstridge suffered from depression and had a drink problem. It is said on his behalf that Mr Boulstridge was not a suitable person to have the task of supporting the claimant but there is nothing in that point. Mr Boulstridge was in full time employment at the prison. He was friendly and supportive towards the claimant. I do not accept that he had a negative effect on the claimant’s condition. There was no arguable breach of duty arising out of the appointment of Mr Boulstridge to this role.[141]The claimant was prescribed medication just a few days after the search warrant was executed. He became depressed. I accept that he asked governor Boulstridge whether he should put in a sick note. He was told there was no point so he did not do so. It is said on behalf of the defendant that Mr Boulstridge did not pass on to the defendant the information about the claimant’s depression. He should have done and the claimant expected that he would do so. That was part of his role. The defendant is responsible for that failure which occurred during the course of Mr Boulstridge’s employment.

The failure to carry out an internal investigation timeously and the prolongation of the suspension

[142]The police were aware that the defendant intended to begin internal proceedings against both the claimant and Mr Cummings. By May 2010 Frank Kirby, of NOMS (the defendant) asked whether the prison service could carry out an investigation into suspects on the police’s B list (of which there were 23). In an email dated 25th May DI Sidaway said she could see “a couple of problems with this” namely that witnesses had not been asked whether their evidence could be used in the internal proceedings and secondly, “the internal investigation is likely to disclose information relevant to the criminal investigation thus potentially tainting any witness evidence at trial.” In answer to the question: Is there sufficient to charge and if so against whom? she replied“[CPS] won’t officially agree this until our investigation is complete and a proper advice file is submitted however I have met with him to discuss this case and he has intimated that there could be a case against Mr Bevan, Mr Dykes and Mr Thorne. Evidence as it stands is weak in relation to Marsh and Mr Cummings”.[143]That was the high point of the police position. It was set out in respect of all the prison officers under investigation. It was not directed at Mr Marsh. It is to be assumed that this information was passed to NOMS. In June 2010, the Assistant Chief Constable asked for information on certain issues from Inspector Hayes (DI Sidaway’s senior officer). The first question was “Has HMP appointed an Investigating Officer in relation to their discipline investigation?” I note there was no suggestion that such an appointment would be unwelcome. The next question was “Have they been given access to evidence/information to assist their case build?” Again, there was no suggestion that this would be unwelcome. She sought this information ahead of a meeting she was to have with Mr Carroll. Inspector Hayes replied that no investigating officer had yet been appointed “Jo [Sidaway} has indicated to Frank that both Marsh and Mr Cummings are likely to be NFA’d on their bail return date of 30.6.10 at which time HMP will be looking to instigate internal proceedings against them as it will not interfere with any of the ongoing criminal matters against the other defendants”. This latter view was entirely realistic.[144]On 16th September the police informed the claimant that he would not face any charges. They also informed the prison that they could see no difficulty with a disciplinary investigation taking place into the claimant’s alleged activities before the criminal trial of the other officers was concluded. Mr Bartlett, governing governor of Canterbury Prison was asked to perform the task and his terms of reference were sent by Ms Martin on 1st November 2010 with a request that he complete his investigation by 1st December 2010.[145]Mr Roy submits that having found there was no case to answer on the slapping incident in August 2009 the defendant should not have sought to reinvestigate it. I disagree. Given the change in landscape brought about by the prosecutions of several prison officers and the content of KQ’s letter to the anti corruption unit, it was not unreasonable and not a breach of contract or breach of the defendant’s duty of care, to review this allegation by way of internal investigation. The second allegation had not previously been investigated. There was no breach of contract or breach of duty of care in the decision to investigate this either. Notice to the defendant of the claimant’s illness[146]Governor Martin spoke to the claimant in October 2010. This was an important meeting. Its purpose was to inform the claimant that the defendant intended to carry out an internal investigation now that the police investigation into the claimant was over. Ms Martin records that the claimant “was ok with this”. I cannot see that he had any choice in the matter. Ms Martin accepted in evidence that her phrase was flippant and it was clear from her evidence that she realised at the time that the claimant was extremely frustrated with the process and wanted “some conclusion”. He was, in my judgement, far from “being ok”. She described him as animated and vocal. She said that Mr Boulstridge had told her that the claimant was becoming very frustrated at the time that was passing. This accords precisely with the contemporaneous medical records.[147]It is pleaded in the defence that “whereas the claimant told Governor Martin that she was aware that he was having treatment for mental health problems she was not in fact aware of this; the claimant was spending a lot of time in Ireland and did not show her any GP correspondence or medical evidence regarding the suggested problem and, in any event, the claimant was purporting to be in receipt of such treatment”. In short, as of October 2010, at latest, the claimant had made clear to Ms Martin that he was suffering from difficulties with his mental health and was receiving treatment for it. The section of her statement dealing with this issue reads (see paragraph 42):“At this time, he claimed that I was fully briefed and aware that he had been receiving treatment for mental health problems and I told him I did not know anything about this at all. He told me that Tim Boulstridge believed he (Marsh) was depressed and was suffering from stress. I was not aware of any medical problems or diagnoses relating to James Marsh at this time. I note James Marsh asserts in his Amended Particulars of Claim that Tim Boulstridge told me that James Marsh had been diagnosed with depression. This in fact is not correct. I was not aware”.[148]When giving evidence Ms Martin seemed to think that the claimant’s mental health had not been mentioned at this meeting at all. I cannot accept that. The claimant says it was. It is pleaded in the defence which must have been based on information from Ms Martin which then appeared in her witness statement. It is inescapable that the claimant was ill by the time of this meeting. The defendant should have known about this earlier but Mr Boulstridge failed to communicate that information to Ms Martin or anyone else. I accept that until the October meeting Ms Martin was unaware of it and that she was provided with no documents but nor did she ask for them. I am satisfied that as of October 2010 at latest the defendant was on notice that the claimant was complaining of mental health problems and was very frustrated at the time being taken to bring matters to a conclusion.[149]At that time the claimant was taking medication and was attending for counselling in Ireland where he was living with his parents and was generally supported by his family. His sister, an impressive witness who gave evidence, described very well the claimant’s sense of isolation and abandonment by the prison service. Whilst Mr Holloway points, as he is entitled to, to the fact that support had been offered to the claimant and he had not taken it, support or lack of it was not the real issue; the issue was the prolonged suspension and the prolonged delay before the disciplinary proceedings took place. This is graphically demonstrated in the contemporaneous records to which I refer in detail later in this judgment.[150]On 29th November 2010 Mr Bartlett emailed Ms Martin and Ms Spencer (and others) to say “I confirm that I am not in a position to proceed with the Marsh investigation until the police have concluded their cases…The primary reason for this lies around the overlap between witnesses in the criminal matters and their potential [to] be involved as witnesses in ours.”[151]It was not for Mr Bartlett to suspend the investigation. That was the responsibility of the commissioning prison, Downview, with input from the area manager if necessary. It is quite plain that there was no, or certainly no effective challenge by Ms Spencer, Ms Martin or Mr Carroll of the police position communicated by Mr Bartlett. I note that the objections raised at that stage were the same as those made in May in the context of all the defendants (see above) and which had been superseded by the police’s acceptance in June 2010 of the decision to investigate, with the knowledge of the ACC.[152]On 8 December 2010 Ms Spencer wrote to the claimant explaining that the disciplinary investigation was going to be postponed. She explained that once Mr Bartlett began his enquiries “it became apparent that it would not be possible for him to proceed with the investigation at this stage, due to the overlap between those staff who are witnesses in the pending criminal charges who may also be witnesses to the allegations in which you are involved. As a result it has unfortunately been necessary to postpone completion of the disciplinary investigation until the outcome of the criminal cases is known. I have also considered whether you should remain suspended during this time and due to the serious nature of the allegations, I have decided that it remains appropriate for you to be suspended on full pay. Your suspension will continue to be regularly reviewed should circumstances change”. In her final paragraph she says, “I know that this postponement will mean a further period of time before the matter can be concluded, which will be disappointing news for you.” This was quite an understatement but, in fairness to Ms Spencer, she was unaware that the claimant was ill. She confirmed in evidence that no one had told her about this. Thus her decision about the postponement of the investigation (and the continuation of the suspension) was taken without any consideration of the effect upon the claimant of that decision. She said that she could not say that knowledge of the claimant’s illness would have made any difference.[153]In January 2011 DI Sidaway emailed Mr Bartlett that the CPS “had expressed that it would not be helpful to the prosecution if HM Prison Service commenced their internal investigation before the trial had concluded, so I’m sorry but for a number of reasons we would rather you continued to hold off….The real issue for us is that we can’t share statements with you in the case where they are witnesses in our trial and most of those in respect of Marsh are.” This was the same reason, repeated. Mr Holloway submits, quite correctly, that the fact that in the end the witnesses relied on in the disciplinary investigation were very few in number does not mean that the defendant was wrong to accept that there might be an overlap as at December 2010. What was wrong was the defendant’s failure even to examine that assertion. Had any of the responsible officers done so they would have realised that there was a single witness relevant to both the trial and the investigation: Ms Garces Rosero.[154]Mr Carroll asserted that he had challenged the police but there is no record of this. Nor was he able to articulate the basis of any challenge. He could not explain how the internal investigation would have affected the police investigation. Having heard the evidence of Mr Carroll at some length I am satisfied that he, like Ms Spencer, considered that the only response to the CPS/police request was to comply with it. This answer in re examination neatly encapsulates his approach “Mr HOLLOWAY: In the circumstances of …, the CPS and the police expressed the wish that the prison service hold off on their internal investigation, how would that factor into your decision-making with regard to the claimant? A. Of course, I’d take the advice I was given unless I had strong objections, which I didn’t. I thought it was a proper way to proceed.”[155]There Mr Carroll revealed he had made a fundamental error. The police and CPS were not advising the defendant. They were asking it not to pursue an investigation. They made clear it was a decision for the defendant. The defendant’s own procedures required the defendant to conduct a disciplinary investigation as soon as possible. It was now nearly a year since the claimant had been suspended. The police had ceased their interest 4 months earlier. The default position in the defendant’s procedures was that an investigation should not await criminal proceedings. Mr Carroll had overlooked the default position, as he accepted in cross examination. Whilst that was not determinative of the matter I regret that there was no evidence that Mr Carroll gave any thought to the question whether the police/CPS request was sufficient to override the default position. Ms Pearce commented that a disciplinary process can be carried out in parallel with a criminal investigation. This is undoubtedly the case, particularly where, as here, the subject of the disciplinary process is not the subject of criminal proceedings.[156]Irrespective of the default position it is clear that none of the defendant’s employees gave any consideration to the effect upon the claimant’s mental health of the postponement of the investigation. By this stage the claimant was unwell, as the defendant knew or should have known. He was in receipt of anti-depressants and counselling. Given the cumulative effect and roller coaster nature of all that had gone before ie the search, the suspension, the arrest, the interviews, the dropping of the charges followed quickly by the decision to proceed with the disciplinary proceedings and the frustration already expressed at the delay coupled with the claimant’s depression, any sensible person would have realised that the claimant’s mental health would be adversely affected by a decision to delay further. Injury was plainly foreseeable. Whilst I accept that the defendant’s employees could not know for sure, as the claimant did, that the allegations were false, it is not apparent that any of the defendant’s employees gave any consideration to the fact that the claimant was not facing criminal charges, nor did they take into account that he was unwell and foreseeably likely to get worse.[157]Given that the defendant’s employees should have known of the claimant’s illness, it was not open to them, since the police and CPS accepted that it was a matter for the defendant, to take a decision not to proceed when they should have known that to do so (in conjunction with suspension) was likely to cause injury to their employee.[158]In the defence a number of difficulties are relied on as reasons for the police/CPS wanting to defer the investigation. I do not consider that a balancing exercise (between the preference of the police/CPS and the interests of the claimant) could properly have led to a conclusion whereby the claimant’s health was (for the defendant) subordinate to the police preference for the investigation to be deferred but I have nonetheless considered some of the matters relied on in the pleading as reasons for the investigation not going ahead:- i) the fact that the police had not routinely asked witnesses who had made statements whether they would allow their statements to be used in the internal disciplinary proceedings. This is feeble. Relevant witnesses, if there were any, could have been asked.ii) bail conditions meant that there would be difficulties in interviewing witnesses for internal purposes in any event. This is unarguable. Only defendants were on bail. In reality, had he survived, Mr Bevan would never have been called as a witness by either side. None of the other defendants had anything relevant to say.[159]There was also reference in the email correspondence and at trial to the overlap of witnesses. The only live prosecution witness common to the trial of Mr Thorne and to the disciplinary proceedings was Ms Garces Rosero, as I have said. I was referred to the statements of other prisoners who made untested allegations against Mr Marsh but none of them was ever relevant to the two allegations he faced in disciplinary proceedings. As to Ms Garces Rosero the problem for the prosecution was that for many months she had falsely denied her relationship with Mr Thorne. It is not easy to see how the prosecution case was at any additional risk as a result of her giving evidence against the claimant in wholly unconnected proceedings.[160]If it were incumbent upon the claimant to prove that had the defendant carried out a balancing exercise with his health on one side and the police/CPS preference as to timing on the other, the balance would have come down firmly on the side of the claimant, he has done so. This should have led to the conclusion that the investigation should continue.

Breach

[161]The decision to postpone the investigation in November 2010 was a clear breach of the defendant’s duty of care to the claimant and a breach of the Malik term of the contract. It led to the continued suspension (on the basis that nothing had changed) and to foreseeable injury.[162]The defendant should have continued the investigation. The time frame in the defendant’s procedures for such an investigation is 4 weeks. The total time for resolution of disciplinary proceedings is 10 weeks. I would accept that this investigation and disciplinary process may have required longer than that but I can see no reason why it would have taken longer than 26 weeks from the appointment of the Investigating Officer. That is a generous period, more than twice the length envisaged in the procedure. Accordingly, but for the defendant’s negligence and breach of contract the claimant would have been exonerated and had his suspension lifted by 1st May 2011.[163]Whatever the merits (and I can see none) of the decision not to proceed in November 2010 these fell away completely in July 2011 when Mr Thorne was convicted and the jury could not agree about Mr Dykes. There was no reason not to continue against the claimant at this stage. It was submitted on behalf of the defendant that there was an overlap of witnesses which prevented the investigation starting until after Mr Dykes’ second trial. There was nothing in the overlapping witness point and in any event the second trial took place in November by which stage Ms Pearce had already been appointed.[164]The defendant can hardly have been taken by surprise when the trial ended in July 2011. Given all that the defendant knew or should have known about the claimant by then, the investigation should have been commissioned immediately after the trial and the whole process completed no later than January 2012. Although it matters not for practical purposes this delay was a further breach of duty and breach of contract.[165]Governor Pearce was formally instructed on 13th October 2011 and the terms of reference were issued. The terms of reference were “to investigate the allegations that have been made by Lilian Ms Rosero against Officer Jim Marsh, paying attention to the evidence pack that has been presented to the Prison Service by Surrey Police.” The document described as an evidence pack was the same one as was provided to the defendant at the end of 2010 and which was given to Mr Bartlett. It is an undated police report which gives an overview of the case against Mr Marsh. Ms Pearce also obtained some statements from the police.[166]The time frame given for the investigation was 28 days in accordance with the defendant’s procedures. In fact it was not completed until the end of January 2012. Whilst some slippage is inevitable this was slow. It may be because Ms Pearce was also dealing with the investigation into Mr Cummings. However I do not accept Mr Roy’s criticisms about the quality and overall fairness of the investigation. She read the police report and interviewed Ms Garces Rosero, Miss Gourley, Mr Hurley, Mr Thorne and Ms Kimber. She also interviewed Mr Marsh at length. It was not necessary for Ms Pearce to interview the claimant’s witnesses before writing her report. She recorded, fairly, that a number of the witnesses she had interviewed (including Ms Kimber) considered Ms Garces Rosero to be highly manipulative. She recorded that a prisoner had complained to Mr Marsh that Ms Garces Rosero was putting pressure on her to support Ms Garces Rosero about the slapping allegation. She was unaware of SIRs that had been submitted in which complaints were made about Ms Garces Rosero’s conduct, but even had she been provided with them as she should have been the overwhelming likelihood is that, having heard Ms Garces Rosero’s complaint and the information from Ms Gourley that she had believed the complaint, she would have concluded that the matter should be dealt with at a disciplinary hearing, which it was. I consider her conclusion that there was a case to answer in respect of the slapping incident a justifiable one as was her decision that there was no case on the rape/sexual assault allegation.[167]Before turning to the disciplinary hearing I complete the picture in respect of the suspension. Mr French arrived at Downview in February 2011. At paragraph 3 of his statement Mr French says that part of his duties was carrying out periodic reviews of the suspension of the various officers. At paragraph 4 he says “the suspension of James Marsh was reviewed every 28 days. Every time I reviewed his suspension, I gave thought and consideration to the stage of the police investigation, the subsequent trials the serious nature of the allegations, the possibility of James Marsh being convicted of a serious criminal offence, the breach of trust and the fact that the alleged misconduct could lead to dismissal for gross misconduct. Upon concluding all my reviews I was of the opinion that his suspension should remain in place until the outcome of the criminal trial and any subsequent disciplinary proceedings were known.” It appears that even when writing his statement Mr French was unaware that at no time during Mr French’s period at Downview was Mr Marsh the subject of criminal proceedings. There was no possibility of him being convicted of anything. Whatever consideration he gave to the question of suspension, and on the whole of the evidence he did not give it much, he was doing so on a wholly flawed basis.

Breach

[168]Given that I am satisfied that the defendant was in breach of its duties to the claimant in deferring its internal investigation in November/December 2010 it follows that there was a further breach in continuing the suspension beyond the date upon which I find the disciplinary process should have been concluded ie 1st May 2011. Mr Holloway submits that the claimant could have appealed his suspension at any stage but did not do so. I am quite satisfied that any appeal would have been futile.

The Disciplinary Hearing

[169]No complaint is made about this. The process was fair. Ms Spencer heard evidence from Ms Garces Rosero, the claimant and from a number of witnesses who gave evidence on his behalf. She had a broader picture than that available to Ms Pearce. Although she described the decision in her witness statement as finely balanced, she made it immediately. In light of the evidence she heard (which has been transcribed) her decision was inevitable.

Post Disciplinary Decision

[170]On 16th July 2012, after the claimant was invited to return to work (and to take a holiday), he submitted a medical certificate recording anxiety and depression. There is no question but that he was suffering from both at this stage. That had been the case for some time. On 24th July 2012 Ms Spencer wrote to the claimant offering him support and a referral was made to ATOS for an occupational health report. This was obtained in August 2012. Ms Evans arranged a psychological assessment which revealed that the claimant was not fit for work.[171]The support provided by Ms Evans from late 2011 at the request of Mr French in response to the claimant’s letter of November 2011 was of minimal assistance. There was clearly a feeling within the defendant’s ranks that the claimant was being difficult in not accepting suggestions for a phased return to work. This was reflected in the witness statements and in some of the oral evidence. Unfortunately it was then set out repeatedly in the counter schedule. It was unfair. The defendant’s own medical advisers said at the time he was still employed that the claimant was not fit to return to work. In October 2012 the defendant’s occupational health adviser, Ms Muktkani was of the view that the claimant was not fit to work in any capacity. Andrew Kinder, chartered counselling and occupational psychologist, wrote on 9th November 2012, “prognosis should be seen as guarded. He is not suitable for a return to work at this time which is likely to last for at least the next eight weeks”. A letter from NOMS (ie the defendant) in December 2012 said that he was not fit to return to work in the near future and suggested a period of at least 6-12 months.[172]The claimant applied for medical retirement but this was not granted. He was ultimately dismissed after a capability hearing on 30th May 2013. His employment ceased on 7th August 2013.

The Medical Evidence

[173]I have read reports from two consultant psychiatrists: Professor Steven Hirsch, instructed on behalf of the claimant and Dr Gareth E P Vincenti, instructed on behalf of the defendant. Professor Hirsch saw the claimant on 10th December 2012; 22nd August 2014; and 27th April 2016. His reports are dated 10th February 2013, 12th September 2014 and 17th August 2016. Dr Vincenti interviewed the claimant on 3rd September 2014 and on 26th July 2016. His reports are dated 13th October 2014 and 6th September 2016.[174]The experts discussed the case and produced a joint statement dated 22nd October 2016. They agreed that as at 2014 the claimant was suffering from a Moderately Severe Depressive Disorder (ICD-IO F32.1) which had its onset in what they describe as the arrest (in fact they mean the execution of the search warrant) and suspension in February 2010.[175]The experts agree that the medical records show that the claimant consulted his doctor at an early stage; he began taking a low dose of amitriptyline prescribed in March 2010. In July, a standard dose of Prozac was prescribed. The claimant attempted to give up the anti-depressants at the point the criminal proceedings against him were dropped but he failed. The experts agreed that the depression was aggravated by the continued suspension and the shame and humiliation of not being able to go back to work because of false allegations made against him.[176]By 2016 the claimant was much improved and now has residual symptoms only. He is however still taking anti-depressants. Dr Vincenti states that when seen in 2016 the claimant had largely recovered and any residual symptoms fell short of that required for an ongoing diagnosis of a Depressive Disorder, while Professor Hirsch considers that given that the claimant is continuing on antidepressant medication a diagnosis of Mild Depressive Order much improved is appropriate. I accept Professor Hirsch’s view not least because both experts have recommended further therapy after this case has concluded.[177]As to causation the experts opined that:-i) Ms Garces Rosero’s conduct did not of itself lead to injury. That occurred because the authorities acted upon her accusations ii) as to the effect of the early morning search they said “while the police raid materially contributed to the Claimant's distress, if following the raid no charges had been made and no suspension from work had occurred, the Claimant would not have become depressed.”. In fact there were no charges following the search. I infer that what the psychiatrists mean is had no further action been taken after the search depression would not have followed. It was the suspension in combination with the police investigation that caused the depression which they distinguish from distress. When dealing with the dawn raid earlier in the judgment I found no breach of duty. The experts view on causation is that no injury arose from it in any event.[178]In response to questions from the defendant the experts wrote, “….We do not consider that the claimant had any significant factors predisposing to depression. We consider that the following acted as provoking factors:a. The police entry into the claimant's house and subsequent arrest;b. The ongoing criminal investigation and duration of same, lack of finality to that investigation, and corresponding fear of conviction. The claimant would have been aware that as a former prison officer he would face a particularly challenging time in custody if convicted;c. The claimant's suspension to the point of the CPS decision not to prosecute, and to the point of the conclusion of the related prosecutions.d. The claimant's alcohol consumption;”[179]Before turning to the factors that are described as maintaining factors I make the following observations, adopting the same letters:-a. This was, as the experts say earlier in their report, distressing but would not have led to depression without b and c b This pertained up to September 2010 c The related prosecutions concluded in November 2011 d See below.[180]The psychiatrists considered that the following were relevant maintaining factors to the continuing depression namely; drinking too much, the suicide of Mr Bevan in June 2011, ongoing shame and humiliation and the commencement of the internal investigation and disciplinary proceedings, and lack of closure because of the litigation.[181]By 2016 the claimant had successfully reduced his alcohol consumption which increased significantly during his suspension. This was part of the reason for his improved state by the time of the joint report.[182]Professor Hirsch opined in his first report in early 2013 that the original damage was done by the search, arrest and the police investigation (but note the refinement in the joint report to which I have referred). He continued that if in late 2010 all charges had been abandoned and he had been reinstated at that time he would have been better able to recoup his resources and not become so totally distressed and depressed. “Prolonging the case was a further aggravating factor bringing about the chronicity of his condition.” He considered that the claimant’s condition would have been less serious had he been allowed to return to his previous role in late 2010. He considered that the fact that the claimant developed an acute stress reaction was “probably related to a combination of both the way in which the original investigation took place at his home, causing acute stress and fear, and the aggravating factor of the continuing longstanding fear as to the outcome in respect to his future employment. The claimant became frankly depressed in 2010 so there was ample time for restitution to have taken place before he became overtly depressed.”[183]Dr Vicenti found that the claimant had an active depression of moderate clinical severity as at the time he first saw him. At 10.3.4 Dr Vincenti says “It is likely that his arrest by the police, and his subsequent investigation for criminal charges, most probably acted as the precipitant for his depression. Of these, I regard the criminal investigation and threat of imprisonment as the greatest stress factor, as opposed to the somewhat heavy-handed manner of the initial police search of his premises, which however did leave Mr Marsh feeling violated and overwhelmed.” At 10.3.5 he sets out the reasons for the depression continuing after the cessation of the police inquiry:-i) alcohol excessii) ongoing suspension after he learnt in September 2010 that criminal proceedings against him had been dropped. This left Mr Marsh feeling frustrated and isolated, and angry that he still faced an internal prison enquiry into his conduct. This is consistent with the evidence of Ms Martin. iii) bereavement and loss after the death of Mr Bevaniv) shame and humiliation and loss of standing within the community, his family and within the prison service…These emotions have continued beyond the ending of the criminal proceedings against him as, following the cessation of the criminal investigation, Mr Marsh remained suspended for the better part of the next two years. He concluded at 10.4.4 that the claimant was unfit for work and his absence from work was attributable to the psychiatric injury arising out of the index events.[184]Dr Vincenti further opined that even if the factors that were prolonging the depression were removed it does not follow that the depression would immediately or quickly resolve and he had reservations about the type of work that the claimant would ultimately be able to undertake. He considered the risk of relapse to be about 50% (as opposed to Professor Hirsch’s assessment of a risk of one third).[185]In his second report Dr Vincenti does not seek to review his opinion as to the causes of the claimant’s depression as set out in his first report. However in the joint report at paragraph 12 the following appears “Initially [Dr Vincenti] considered that the prolonged nature of the suspension after the CPS decision not to prosecute in September 2010, should also be considered as an important maintaining factor in relation to the Claimant’s depressive disorder. However, subsequent evidence has caused him to alter his stance in this respect”. He then sets out the matters (my italics) upon which he relies in defence of his change of opinion. I shall deal with them in turn:-a. The Claimant said that he understood the need for an internal investigation following the CPS decision not to prosecute, and that he was "OK with that" (para. 41 of statement by Emily Martin); This information was not new. It was in the pleading that was available to Dr Vincenti when he wrote his first report. I have set out the detail of this meeting above. Ms Martin said in terms that the claimant was frustrated and vocal about the position at that meeting. The conversation with Ms Martin does not begin to justify a change of view. The counselling records for October-December 2010 underscore the claimant’s poor state at that time.b. During her frequent meetings with the Claimant as his designated point of contact in the later stages of the suspension from November 2011, Julie Evans regularly asked the Claimant how he was doing, and he did not mention any concerns as to the length of the ongoing suspension other than he wished to return to work (Para 4, 5, 6)I do not follow this. The evidence was that the claimant was saying he wanted to go back to work from as early as 2010. By November 2011 the long delayed disciplinary process was at last taking place and the first thing the claimant said to Ms Evans was that he wanted to go back to work (see above). It is unreal to suggest that a frequently expressed wish to return to work did not include in it “concerns as to the length of the ongoing suspension.” It is the plainest evidence that he was concerned about the length of the suspension.c. During her work fact finding for the internal investigation, Sharon Pearce had regular contact with the Claimant (pages 5-7 of her statement). He thanked her for the 'fair and open way you conducted your investigation". He himself regularly initiated contact with her (para 13), and at no stage advised her that he was struggling to cope with the suspension process (para. 13)The fact that the claimant cooperated with Ms Pearce’s investigation is consistent with his desire to get back to work. I note he told Ms Pearce that he felt like a “gibbering wreck”. Dr Vincenti knew that the claimant had cooperated with the disciplinary process at the time of his first report. This was not something he mentioned then as undermining his view that the prolonged suspension was a factor maintaining his depression. Whilst I understand the point (made at e) that when someone is struggling with an internal disciplinary investigation they rarely seek contact with an employer, the claimant had to comply with the disciplinary process, which he did. On the evidence, he was depressed.d. The claimant sent emails to Julie Evans in December 2011 and March 2012 saying he felt "fine", and another email in April 2011 saying he felt well-supported by his family in Ireland (para. 9.4.1 of Dr Vincenti's first report) This information was available to Dr Vincenti when he wrote his first report. Its repetition here does not explain his change of view. In any event the use of the word “fine” is a pleasantry. Patients attending their GP say they are fine. It means nothing. The fact that the claimant was well supported by his family is nothing to the point. f. The counselling, psychology and occupational health records make frequent mention of the Claimant's sense of injustice over the arrest, initial suspension and criminal proceedings. Dr Vincenti does not recall seeing anything about the length of the suspension itself being a contributory factor.There is plenty of evidence that the claimant wanted to get back to work. See above and see for example his counsellor’s record for 11th October 2010 - “Looks timid thinner expressed a deep frustration can’t sleep high anxiety state still hasn’t heard anything from the prison service about returning to work.” On 8 December 2010 “looks drained untidy there is to be a private internal investigation on Jimmy furious why? All because of junk. All churned up again…” An earlier letter of 13th August 2010 from a counsellor provided by his GP in Sutton records that he was “feeling depressed, not sleeping, feeling frustrated, down, tearful, lacking motivation, getting little pleasure out of day to day activities and feels his confidence has been knocked.” I note that the medical records have an entry for 8th November 2011. It begins “Still suspended to have another internal review feels very let down by employers and the system….” All of this is plainly to do with the length of suspension which was preventing him from working.[186]Dr Vincenti’s change of view is unconvincing. His original opinion was evidence based, logical and persuasive. I am satisfied that the prolongation of the suspension to June 2012 was a maintaining factor in the claimant’s depression and whilst I accept that the continuing prosecutions to November 2011 were a maintaining factor they would have had no potency had the claimant been able to return to work in May 2011. Quantum General Damages

Quantum

[187]In his first report (2013) Dr Hirsch opined that after a period of effective treatment of 6 months the claimant should make a good recovery and he would probably be able to work within the year. Given that the depression was by then (December 2012) well established and chronic I am satisfied that recovery would have taken no longer had the process begun in May 2011, when the disciplinary proceedings would have concluded, but for the defendant’s breach of duty. I am fortified in this view by the conclusions of Dr Hirsch set out at 179 above and which I accept, that the illness would have been less severe had the claimant been able to return to work by the end of 2010 ie not much earlier than the date upon which he should have been able to return, on my findings.[188]Had the claimant been exonerated by 1st May 2011 an important maintaining factor which led to his depression becoming chronic would have been removed, as would one of the main reasons for his excessive drinking, the loss of his job and status. I am satisfied that with treatment (which he would have sought) he would have recovered well and would have been ready to go back to work no later than 1st May 2012. I have not reduced the period of recovery, notwithstanding the shorter period of illness because of the likely setback the claimant would have experienced as a result of the sudden death of Mr Bevan in June 2011.[189]In my judgment the claimant is entitled to recover damages for the illness he suffered from May 2012. Given that Professor Hirsch considers that the illness would not have been so severe had the claimant gone back to work at the end of 2010 the risk of relapse may have been less than it is now but the evidence is not sufficiently clear to make a finding on that. In assessing damages I do not attribute the risk of relapse (which I assess at one third) to the defendant’s breach and make no award in that regard.[190]Accordingly I award damages for pain suffering and loss of amenity on the basis of 5 ½ years illness of moderate severity (in accordance with the Judicial College Guidelines). I take a sum at the top of the bracket, namely £16,000. I acknowledge that cases of stress at work often come within the moderately severe category but given that the claimant would have suffered illness in any event I am satisfied that the case best fits within the moderate category.[191]I agree that there should be an award for loss of congenial employment. The claimant was proud to be a prison officer, it was part of his identity and he enjoyed the work. I take a conventional sum, £10,000 and reduce it because of the claimant’s age to £7,500.[192]General damages are therefore £23,500.

Special DamagesLoss of Earnings

[193]Much has been made by the defendant of the fact that the claimant has said on a number of occasions that he could not go back to work in the prison service, because of the humiliation of the investigation, but during 2010 and 2011 the references are all to his desire to return to work. I have referred already to the fact that the first thing he said to Ms Evans in November 2011 was that he wanted to go back to work. Given the importance of his career to him I consider it very probable that had he been fit (which he would have been by May 2012) he would have returned to work in the prison service and that he would have remained there until the age of 65.[194]I bear in mind the evidence of the claimant and that of his sister who in very measured terms made it clear just how important the claimant’s career in the prison service was. He plainly took pride in it and hoped for promotion. He had passed the first exam and had exemplary appraisals. He had failed the second exam and intended to resit it. Because of the suspension he missed the opportunity to resit in May 2011. That would have occurred irrespective of the defendant’s breach of duty. Had he returned to work in May 2012, as I consider he would have done but for the breach, it is unlikely that he would have turned his mind to promotion for some time, if ever. It is far more likely that he would have settled back down to work, which would not have been easy in the light of Operation Daimler and the death of Mr Bevan.[195]The defendant called a number of witnesses to say that the claimant would not have made much progress beyond the rank of prison officer. Ms Spurr said that positive appraisals were not good predictors of success in the promotion process (although she accepted that without a positive appraisal a person would not be permitted to seek promotion). She was rather less clear as to what were good predictors of success but gave some statistics about the pass rate in exams. On the occasion the claimant failed his second exam 59% of people passed it, an unusually high number, she said. Since many officers take exams more than once it is not possible to conclude that because the claimant was in the minority who failed on that occasion he would have failed at his next attempt. As Ms Spurr said, much depends on preparation. Mr Ivens was a senior officer (ie one step up from the claimant at the relevant time. There has since been a restructuring). He said, candidly, that he had taken and retaken his exams several times. This was normal. By 2013 an additional, third, stage had been introduced into the process which would have made promotion more difficult.[196]Having reflected on the whole of the evidence and notwithstanding the fact that he had previously held more remunerative employment, had hopes of further advancement and taken some steps towards promotion, I find that the claimant’s life would have changed as a result of the actions of Ms Garces Rosero and Operation Daimler, irrespective of the defendant’s breach of duty. The claimant would have recovered from illness but with a risk of relapse of one third. I am not persuaded that he would in fact have applied for promotion, still less that he would have succeeded. His loss of earnings from August 2013 should be calculated on that basis, taking account of such modest increases in pay as have been awarded since then.[197]A draft judgment was circulated to the parties on 13th June 2017. I expected agreement on quantum of other losses in the light of my judgment. The parties did not agree. It was therefore necessary for me to hear argument and decide a number of matters on the date originally given for hand down. I deal with them at paragraphs 198 to 207 and at paragraphs 210 to 220 below.

Deduction of lump sum payment from damages for loss of earnings

[198]At issue was the sum of £25,389.67 paid by the defendant to the claimant upon his dismissal in 2013. Mr Roy submitted that this payment was a lump sum in respect of an ill health pension and so, in accordance with the decision of the House of Lords in Parry v Cleaver [1970] AC 1, is not to be deducted from the claimant’s damages for loss of earnings because such a payment is analogous to the benefit of accident insurance. At most, a proportion of such a payment could in theory be deducted from a lump sum pension payment in accordance with long established principles described in Longden v British Coal [1998] AC 653 ie that the claimant has to give credit for that proportion of the lump sum that represents a commutation of his post retirement pension. However since there was no claim in respect of a lump sum on retirement there was nothing against which the payment could properly be set off and so nothing could be deducted. Mr Holloway argued that the payment was not by way of ill health or any other pension. Neither Parry v Cleaver nor Longden applied. This was a discretionary payment paid to mitigate the loss of employment and it ought properly to be set against the damages for loss of earnings for the defendant’s negligence.[199]Both advocates relied on some correspondence produced by the defendant. The principal document is a letter dated 23rd November 2016 which explains the basis upon which the payment was made:“Mr Marsh was dismissed due to medical inefficiency and received a compensation payment under the Civil Service Compensation Scheme (CSCS).The CSCS allows employers to pay compensation to members who leave on early departure terms. It is a statutory scheme that gives employers the authority to compensate members for losing their job.For pension purposes, employees who are dismissed are usually treated as if they had resigned. Employers can choose to pay their employees a lump sum compensation payment as long as they have at least one year’s service. The employer has to meet the cost of the compensation payment. On 1st June 2013 Mr Marsh’s employer contacted us to advise Mr Marsh would be leaving employment due to medical inefficiency with a 100% compensation award. As this amount was less than £30,000 it was payable tax free”.[200]The defendant produced to the court a copy of an email dated 26th June 2017. It is a response to a request from Miss Dixon. It reads as follows:
“In terms of the basis for the award, as the member was dismissed on inefficiency with a last day of service of 31 May 2013. Under the terms of the Civil Service Compensation Scheme at that time the member was award a Lump Sum Compensation based upon the following terms: a) 2 weeks’ pensionable earnings for each year of reckonable service during the first 5 years of qualifying service. PLUS b) 3 weeks’ pensionable earnings for each year of reckonable service during the next 5 years of qualifying service. PLUS c) 4 weeks’ pensionable earnings for each year of reckonable service after the first 10 years of qualifying service. PLUS d) 2 weeks’ pensionable earnings for each year of reckonable service after the 40th birthday. Notes E, G and H. Mr Marsh had reckonable service of 9 years 47 days (9.1288) at his last day of service, all of which was after his 40th birthday. On this basis the calculation applicable to Mr Marsh, was a) + b) + d). Part c) is not applicable as he had no reckonable service after 10 years”
. PLUS PLUS[201]There then follow the detailed calculations. The letter ends “I can confirm that we would be guided by the court in terms of any outcome regarding loss of earnings and how they are recovered/offset”. The email bears the name Paul Cooper, Scheme Compliance Unit, MyCSP.[202]Mr Roy reasonably complained that the letter was very late. He submitted that I should exclude it. I did not do so. It sets out the basis upon which the calculation was made. It is helpful and I see no prejudice to the claimant in having the matter better explained.[203]Mr Roy submits that there is a clear link made in the letter of 23rd November between the medical inefficiency and the payment of the compensation which is, he submits, a payment in respect of ill health. I disagree. The link is between the dismissal and the compensation.[204]It is clear from both the letter and the email that the payment is payable as a result of the provisions of the Civil Service Compensation Scheme which is administered by the Civil Service Pension Scheme. The letter refers to the payment as compensation for the loss of employment. It also says, “for pension purposes employees who are dismissed are treated as though they had resigned” but the focus there is on the treatment of the dismissal not on the nature of any payment. I do not think the reference to pension purposes affects the overall thrust of the letter which is that the payment is compensation for loss of employment.[205]Mr Roy submits that the language used in the email of 26th June when calculating the payment is the language of a pension calculation. That is true. Subparagraphs (a) to (d) above speak for themselves. However it is essential to look not just at the language used but the overall meaning and purpose of the email, taken together with the November letter. The email begins with a clear statement that the payment is “a lump sum compensation” which may be paid by the defendant to the claimant under the Civil Service Compensation Scheme (CSCS). Nowhere does it describe the payment as by way of or in lieu of an ill health or any other sort of pension. This is consistent with the letter of 23rd November 2016 and consistent with the fact that there was no suggestion that the payment would be deducted from any pension later received. The calculations were produced for the CSCS by the compliance unit of MyCSP (Civil Service Pension). The lump sum payable (by the employer, not the pension scheme) under the compensation scheme is calculated by reference to pensionable earnings and reckonable service but the method of calculation does not affect the nature of the payment and does not transform it into a pension. I remind myself that the defendant refused to grant ill health retirement to the claimant.[206]I am quite satisfied that this payment was made to the claimant, as Mr Holloway submits, by way of compensation in respect of the loss of his job, as set out in the letter of 23rd November. It does not come within the exceptions in Parry v Cleaver, nor does Longden v British Coal apply. I go back to first principles. The claimant is entitled to be put in the position he would have been in but for the defendant’s negligence. I am quite satisfied that the lump sum payment should be deducted from the figure for loss of earnings.

Medical expenses

[207]It appears that the counselling began at a very early stage (ie August 2010). The claimant is not entitled to recover that cost against the defendant save from May 2011. I note that the psychiatrists have reservations about the usefulness of this therapy but it was recommended for the claimant so he is entitled to recover something. I award £400, half the sum claimed. I award £110 for 2 GP appointments.

Care and assistance

[208]The claimant received support from his family between February 2010 and July 2012 at 3 hours per week and thereafter at 2 hours per week. In the light of my findings, assistance at 3 hours per week would have been required in any event until May 2011. Thereafter it would have been necessary at 2 hours per week until May 2012. It follows therefore that for the period between May 2011 and May 2012 he is entitled to recover the cost of 1 hour additional family assistance per week at the modest rate claimed of £6.50 per hour. Thereafter he is entitled to recover the cost of 2 hours assistance per week from May 2012 to July 2014 at the same rate. Future losses Future loss of earnings

Future losses

[209]I am satisfied that the claimant would have remained a prison officer until the age of 65. I accept the submission that his employment in the prison service would have been secure.I make no reduction for the risk of relapse because I have taken account of that already in my assessment of the likelihood of promotion. His future loss should be calculated on the basis of the current rate of pay for a prison officer.

Reduction Factor (“but for” earnings)

[210]The multiplicand for future loss of earnings but for the negligence is agreed at £24,512.84. The table 9 multiplier is agreed at 8.2466. There is disagreement as to the reduction factor to be applied in respect of the notional “but for” earnings.[211]The claimant submits that the reduction factor should be 0.9 which would lead to a multiplier of 7.4201. The defendant submits that the reduction factor should be 0.79 leading to a reduced multiplier of 6.51.[212]Both parties rely on table A of the Ogden tables. That table (like tables C-D) include reduction factors (RFs) up to age 54. The note at the head of the table reads so far as is relevant; “For older ages the reduction factors increase towards 1 at retirement for those who are employed and fall towards 0 for those who are not employed. However where the Claimant is older than 54, it is anticipated that the likely future course of employment status will be particularly dependent on individual circumstances, so that the use of factors based on averages would not be appropriate. Hence reduction factors are not provided for these older ages.” Notwithstanding that significant caveat both parties submit that I should be guided by the Table A figure for a 54 year old man (0.79). Mr Holloway submits that I should apply that factor unaltered to the multiplier here on the basis that there is not much difference between the ages of 54 and 56 in the claimant’s case. I cannot accept that. An upward adjustment must be made to reflect, as a minimum, the fact that the claimant is approaching 57. Mr Roy submits that I should move from a RF of 0.79 to one of 0.9 on the basis that the claimant was in very secure public sector employment with virtually no risk of dismissal. I do not accept that either. True it is that employment of a prison officer aged 56/57 is secure, with little risk of dismissal, but an adjustment to 0.9 takes the claimant too far towards the point at which the effect of any RF (at 1) would disappear when there are still 8 years until retirement.[213]An upward adjustment from 0.79 is necessary to reflect i) the difference between 54 and the claimant’s current age and ii) the reality that the work of a prison officer now and in the foreseeable future is secure. Both of these are properly reflected by a Reduction Factor of 0.83. This should now be applied to the multiplier of 8.2466.

Residual Earning Capacity

[214]The claimant is likely to start making applications for employment by the autumn of 2017 by which stage he will be 57. His residual earning capacity is much reduced as a result of the prolonged illness and absence from work (from May 2012) for which the defendant is responsible. I accept that he will have a maximum earning capacity of £20,000 per annum.

Reduction Factor(actual earnings)

[215]The difference between the parties here is even more stark. Both parties take table A. Mr Holloway submits that the starting point remains 0.79 (ie the figure for a 54 year old man in category O who is in employment). This is wholly unrealistic. The claimant has been unemployed for years. Mr Holloway submits that he should be treated as employed because i) he will soon be in employment and ii) he has carried out some voluntary work during his period of unemployment. He adds that the fact that the claimant has a long period of employment in the Prison Service will stand him in good stead when seeking work. As I have already said I consider the claimant will not be ready to look for work until the autumn by which stage he will be 57. It is a matter of speculation how long it will take him to secure employment but I very much doubt that it will be within six months of starting the search.[216]Mr Roy submits that the correct starting point is the figure for an unemployed man of 54 in category O ie 0.59. I agree. He goes on to argue that I should reduce the RF to reflect i) the prolonged period of unemployment ii) the very prolonged period of sickness iii) the circumstances surrounding his having become unemployed iv) the fact that he has sued his employer, even though he has been successful in doing so. Finally Mr Roy submits that I have selected a relatively high multiplicand of £20,000 which should be mediated by a reduction in the RF. He submits the appropriate figure is 0.2. As I said during Mr Roy’s oral argument that figure too is wholly unrealistic. I remain of that view.[217]In my judgment the RF for actual earnings is 0.49. I reach that as follows:-i) the starting point is 0.59 (ie table A, category O, not employed) ii) the claimant will be 57 before he is able to look for work, and older still by the time he finds it. This must be reflected in a reduction in the RF iii) the circumstances in which he lost his job and the prolonged history of illness will be off-putting to employers and will outweigh the benefit of a steady period of employment with the MOJ. That will make it more difficult to find work on each occasion that he has to look for it. This too leads to a reduction in the RF iv) I am not inclined to reduce the RF further to reflect the multiplicand. It is not unrealistically high. It reflects my view of the claimant’s ability and determination to work.

Future Benefits

[218]The correspondence produced very recently from the relevant authorities in Ireland make it plain that upon receipt of his damages the claimant will no longer be eligible for means tested benefits. He does not receive non-means tested benefits. Mr Holloway raised the point in written submissions for the hearing on 29th June that the claimant may be able to set up a personal injury trust and so put the money out of reach in the calculation of means tested benefits. There is no evidence that such an arrangement is even possible in Ireland. The claimant’s instructions are that he would not wish to do that, even if it were open to him. Whatever the position with the PI trust I am quite sure, having heard all the evidence in the case, that it is overwhelmingly likely that the claimant will stop claiming benefits when he receives his damages and will not claim thereafter for three reasons. First, he is well on the way to recovery and so will not be entitled to sickness benefits in any event. Second, he is a very proud man. He is embarrassed to be receiving benefits. I am satisfied that if he has enough money to live on he will not claim benefits. Third, he wants to work. He has carried out voluntary work for some time. He will soon be well enough to look for work and once he has found work he will be ineligible for benefits arising out of unemployment.[219]Future loss of earnings should be calculated on the basis that the claimant will not be receiving benefits.

Medical Expenses

[220]I accept Professor Hirsch’s view that 20 sessions of CBT would be helpful. I award £2,175 for this.

Loss of Pension

[221]But for the defendant’s breach of duty the claimant would have had 21 years pensionable service on retirement at the age of 65. Instead he has 9. It is unlikely that he will be eligible for more than minimal pension. The total annual pension loss on the basis of my findings at paragraph 210 is £4,965.59.

The change in the Discount Rate

[222]Submissions were made in this case in December 2016. On 20th March 2017 the Lord Chancellor introduced a new discount rate. The Damages (Personal Injury) Order 2017 reads as follows:-Citation, commencement and extent1.(1) This Order may be cited as the Damages (Personal Injury) Order 2017 and shall come into force on 20th March 2017… Rate of Return2. The rate of return referred to in section 1(1) of the Damages Act 196 shall be minus 0.75 per cent.[223]There are no transitional provisions for ongoing cases. There is none in the primary legislation either. Section 1 of The Damages Act 1996 reads:-(1) In determining the return to be expected from the investment of a sum awarded as damages for future pecuniary loss in an action for personal injury the court shall, subject to and in accordance with the rules of court made for the purposes of this section, take into account such rate of return (if any) as may from time to time be prescribed by an order made by the Lord Chancellor.(2) Subsection (1) above shall not however prevent the court taking a different rate of return into account if any party to the proceedings shows that it is more appropriate in the case in question.[224]Mr Holloway relies on subsection 1(2) and submits that this is a case where a different rate of return is more appropriate for the following reasons:“i) the Claimant wished this claim to be determined at trial in 2016; this has been the focus of submissions on his behalf at the interlocutory stages;ii) the Claimant has not made any submissions hitherto that the previous rate of return was inappropriate notwithstanding the opportunity having been available to him;iii) so far as the Defendant is aware and subject to any minor adjustment between what may be past and future losses, the Claimant’s alleged loss has not altered in the 3 months that have passed since the conclusion of the evidence;iv) all that has changed is the legislative provision, of which the Claimant would not have had the benefit in December 2016 or indeed at any time prior to 20th March 2017;v) thus, from the Claimant’s perspective the opportunity to request that the Court has regard to the new rate of -0.75% arises through mere serendipity”.[225]Accordingly, he submits, it is appropriate to apply the rate which was in force at the time the evidence was heard.[226]I reject each of those submissions for the reasons below. I adopt the defendant’s numbering. i) the case was heard at the end of 2016 rather than earlier, at the request of the defendant because of the shift in its position from defending the case to mounting a very wide ranging attack on the claimant, which ultimately failed. The case took as long as it did because of the defendant’s position. In any event the fact that the claimant was thwarted in obtaining an earlier hearing is not a reason to apply the old rate. ii) This is hopeless. Such submissions would have been bound to fail. iii) This is irrelevant.iv) This is the point. The law has changed.v) The application of the new rate is simply the operation of the law. It is no more serendipitous than the fact that the old rate pertained for many years to the benefit of defendants generally.[227]In any event I am far from persuaded that the phrase “it is more appropriate” is quite as open textured as Mr Holloway’s submissions suggest. It has to be read in the context of the Damages Act as a whole (See Dyson LJ as he then was in Warriner v Warriner [2002] 1WLR at 1711). Dyson LJ said that in deciding whether a different rate is more appropriate in a given case the court must have regard to the reasons the Lord Chancellor gives for the choice of the rate under consideration. Mr Holloway has made no submissions directed to that question. Dyson LJ concluded on this point “If the case in question falls into a category that the Lord Chancellor did not take into account and/or there are special features of the case which(a) are material to the choice of rate of return and(b) are shown from an examination of the Lord Chancellor’s reasons not to have been taken into account, then a different rate of return may be “more appropriate”. There is no material to that effect here. Mr Holloway’s submissions amount to a complaint that the claimant is to have the benefit of a change in the rate which no one saw coming and which, if judgment had been sooner, would not have affected this case. There is no proper basis for saying that a different rate is more appropriate than the one in force as of March 2017.[228]The applicable rate is therefore -0.75% and counsel should calculate matters accordingly.

Application to strike out the defence as an abuse of the process of the court

[229]The application was lodged shortly before trial. It was foreshadowed at the pre trial review when Mr Roy raised a number of justified concerns about the defendant’s approach to the litigation. Several of the witness statements submitted on behalf of the defendant contained passages that were identical. The information given by the defendant to the claimant’s solicitors in advance of and to the court during the pre trial hearing about the availability of witnesses to give evidence was inconsistent and on occasion simply incorrect. Thus, for example, it was the defendant’s position that Ms Noakes (who had not signed a statement) would be called to give evidence. In fact she had died in prison some months earlier. Whilst I can well understand that no individual can know the whereabouts of all potential witnesses, the reassurance being given to the court was based on nothing and so should not have been given. There were several less obvious inaccuracies and misleading statements which it is not necessary to rehearse.[230]As part of this application the claimant’s legal team revealed that in August 2016 a former prison officer, Mr Hurley, who was to give evidence for the defendant, had contacted the claimant’s solicitor to complain about the way his witness statement had been drafted by the defendant so that it did not properly reflect his evidence. His statement to that effect formed the basis of a serious attack on the integrity of the defendant’s legal team which was at the heart of the application to strike out the defence as an abuse of the process.[231]The claimant sought to have the abuse application determined at the end of the trial. Although this was highly unusual it was the only realistic option given the time constraints. In the event this approach allowed a proper resolution of a number of the issues which were initially contentious; the circumstances of the obtaining of Mr Hurley’s witness statement were explored and in the light of the evidence Mr Roy very properly abandoned the submission that any evidence had been fabricated and any allegation of bad faith. He maintained his assertion that the way witness statements were taken was unacceptable and reflected inappropriate zeal on behalf of the defendant’s legal team.[232]There were undoubtedly flaws in the way some of the statements were drafted. Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years. This is not a method likely to achieve the best evidence. I am quite sure that this was done because the pressure of work did not allow for the best preparation and not for any sinister reason. The witnesses who attended gave their evidence and it was tested. IG asked for the draft to be amended before she came into court. She and at least one other witness complained that a last paragraph was included in the draft statement which did not reflect his or her evidence. When Mr Hurley complained to the defendant’s solicitor that his statement was not accurate he was asked “is it the last paragraph?” Mr Roy submits, correctly, that the question was asked thus because the solicitor knew that there was something in the last paragraph which the witness may not be content to sign up to. The last paragraph read “With regard to the allegation made by Liliana against James Marsh, I believe that he did in fact slap Liliana’s bottom. This is based on my knowledge of Liliana. I found her to be honest and genuine in my dealings with her. I don’t believe she would have made up these allegations. She was not the type of person to do so”. Ms Dixon accepted in her statement that the last paragraph reflected her impression of what Mr Hurley had said rather than his words at the time. In evidence Mr Hurley said he had not said that which appears but he did accept in cross examination that he had no reason to think that Ms Garces Rosero was dishonest. He also accepted in cross examination that he thought that the claimant had “possibly” slapped Ms Garces Rosero but he did not think it would have been with any sexual intent. He had said this to Ms Dixon at the end of the interview when she had asked him to say off the record what he thought had happened. His response was reflected in the first sentence of the last paragraph of his statement. As Mr Holloway submitted, the note of interview as to what Mr Hurley said off the record was consistent with his evidence under cross examination. In the event Ms Dixon removed the passages to which he objected and the statement before the court was an accurate account of his evidence in chief. In my judgment it was unwise to invite an off the record comment and then include it in the draft statement. It was likely to lead to upset and a waste of the court’s time while the matter was analysed. In the end no harm was done to the claimant or his case.[233]In the course of cross examination when Ms Gourley was asked why she had downgraded her view of collusion between Ms Garces Rosero and Ms Kimber to “possible” collusion in her statement she said that the words used were those of the solicitor. She should have checked the statement more carefully before signing it (if it did not reflect her view) and in any event she had not been entirely consistent in the way she had expressed her view. There is nothing in this point. Nor is there anything in the complaints about the statements of some of the other witnesses. The reference to the claimant being a sexual predator made by one of the governors first appeared in the work book for Operation Daimler and then appeared in the statement. The fact that it was based on an incident which the witness did not describe at all clearly, which had allegedly happened years earlier and had led to no action came out in cross examination and I have disregarded the incident completely. There is no criticism to be made of the solicitor here.[234]Numerous witnesses alleged in their statements that after he transferred to D wing the claimant had been instructed not to go onto C wing. The source of that information should have been identified in each statement but was not. This was an oversight. I am confident the source was rumour and gossip within the prison since I have found that the claimant was not instructed not to go to C wing. Had the witnesses been asked to identify their source the defendant would have been alerted to the fact that the allegation may not have any foundation. Instead this assertion was part of the defendant’s case at trial. This was a waste of time but no more than that.[235]The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues. That is why statements were served well out of time, with no explanation and why careless errors were made. However I am quite sure that the defendant did not prevent me from seeing evidence that was favourable to the claimant; Mr Roy’s submission that PII may have been abused is untenable. It should not have been made and I ignore it.[236]For the avoidance of doubt I reject any suggestion that Ms Dixon behaved other than with propriety. I also reject the submission that she was “personally invested” ie too close to the case.[237]Although I was referred to a large number of authorities by the claimant and to a number of recent authorities dealing with the striking out of statements of case by the defendant, the issue boils down to this, given that there is no assertion of bad faith: has the defendant’s conduct prevented there from being a fair trial? Only if the answer to that is yes should I go on to consider whether to dismiss the defence as an abuse of the process of the court.[238]I am quite satisfied that the defendant’s conduct has not prevented a fair trial as the judgment demonstrates. There has been no injustice. The process of the court has not been abused. On the contrary it has been effective in achieving a fair trial.[239]The application is dismissed.[240]There shall be judgment for the claimant on his claim.

Cited in 1 later judgment