MR G D DEVINE-JONES v (1) COMMISSIONER OF POLICE FOR THE METROPOLIS (2) DETECTIVE INSPECTOR WOODWARD [2003] UKEAT 0342_03_0810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0342_03_0810

Case No Appeal No. EAT/0342/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR G D DEVINE-JONESAPPELLANT

(1) COMMISSIONER OF POLICE FOR THE METROPOLIS (2) DETECTIVE INSPECTOR WOODWARDRESPONDENTS

Before

Mr Justice Burton

Date 8 October 2003

[1]APPEARANCES For the Appellant MISS JUDE SHEPHERD (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MR DIJEN BASU (of Counsel) Instructed by: Metropolitan Police Service Directorate of Legal Services New Scotland Yard Broadway London SW1H 0BG THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) The case before us constitutes an appeal against a decision of the Chairman at London (Central) Employment Tribunal on 3 March 2003, when she refused leave to amend one of two Originating Applications brought by the Applicant, Mr Devine-Jones, against the Commissioner of Police for the Metropolis and Others. We do not need to concern ourselves with the second Originating Application, where amendments were permitted. But the proposed amendments to the first application were, as we have indicated, refused.

[2]The issue before us today is one which it is to be hoped may not continue, at any rate often, to come before the Employment Appeal Tribunal. It arises out of the fact that the employment position in police forces is different to that in ordinary employment. Concepts of 'course of employment' may not apply (or may not have applied) to police officers, who are officers and not necessarily employees, as they do to ordinary employees. There has therefore been separate legislation within our discrimination acts, providing for the position of the police force.

[3]In the case of Chief Constable of Bedfordshire Police v Liversidge

[2002] ICR 1135

, it was concluded that, contrary to what had previously been understood, even the concept of liability on the principal and agent basis was narrower than had previously been understood, on the construction of the statutory provisions before the court.

[4]Resort was had, as an alternative to principal and agency, to the concept of failure by an employer to take sufficient or reasonable steps to avoid discrimination pursuant to the decision of the Employment Appeal Tribunal in Burton v De Vere Hotels Ltd

[1997] ICR 1

, but there was criticism of that decision (which was itself never appealed to the Court of Appeal), which has now culminated in it being disapproved by the House of Lords in MacDonald v Ministry of Defence and Pearce v The Governing Body of Mayfield School

[2003] ICR 937

[5]The uncertainty for the future has now been resolved, so far as the Race Relations Act 1976 is concerned, by the implementation of an amendment now to be section 76A of the Race Relations Act 1976 , which deems there to be employment of police officers by a Chief Officer of Police, and deems therefore acts committed by police officers to be acts done in the course of their employment by the Chief Officer of Police.

[6]Questions therefore of principal and agent, which had been peculiar to the position of police officers, as we have indicated, will, in respect of the period since 2 April 2001 when that amendment took effect, become academic. This hearing, however, relates to matters which ante-date the implementation of section 76A, and thus must be decided on what can now be regarded as the interim law.

[7]The history of this case must be like many other similar cases brought against police forces in the period subsequent to the decision in Liversidge and prior to the implementation of the amendment to which we have referred; namely, where cases that had originally been brought, as it turned out too simplistically, on the basis that a Chief Officer of Police was liable, was subsequently sought to be brought within the changing law, by reference to Burton v De Vere Hotels on the one hand, before that case itself was recently disapproved by the House of Lords, and on the other to concepts of principal and agent, both of which were thought to be a way round Liversidge .

[8]That is what was trailed as an intention by those representing Mr Devine-Jones in an interlocutory hearing on 12 September 2002 before the same Chairman, Ms Potter. There had been an earlier interlocutory hearing on 9 November 2001 before Mr Latham, when it was said that any formal application for leave to amend should be made at the next directions hearing, the Applicant having given notice through his Counsel that he was likely to apply for such amendment.

[9]At that interlocutory hearing on 12 September 2002 there was an Order that the Applicant was to provide to the Respondents a particularised application to amend the Originating Application, prior to a dedicated hearing to consider questions of amendment, which was provided for at that hearing.

[10]It was made quite plain by the Chairman that the document which was at that stage before her was insufficiently particularised. At paragraph 5 of the interlocutory decision at that stage the Chairman said this: 5 "The Applicant applied to amend the Originating Application to include Burton v De Vere and an agency argument as ways round the problems posed for the Applicant's case by the Liversidge decision. The First Respondent's counsel objected to the bare amendments proposed on the basis that they were too vague and simply recited general legal principles. The Tribunal, while declining to determine the application for leave on such bare grounds, expressed some sympathy with amendments that were not an attempt to change the substantive legal and factual basis of the claim but reflected unexpected developments in case law during the protracted course of the proceedings. 6 The Tribunal stated that in the light of the nature of the McGlennan exception [and this was a reference to Chief Constable of Cumbria v McGlennan

[2002] ICR 1156

which had recently then been reported and had sought to introduce what was called an exception to the Liversidge decision] , it was vital that any application to amend in response to Liversidge had detailed regard not only to the general law principles of Burton v De Vere and agency but also to the specific statutory and regulatory framework within which Chief Constables operate." and the Tribunal laid down a time table for a more particularised application to amend.

[11]The hearing at which permission to amend was considered is that against which there is now an appeal before us. Ms Potter (the same Chairman, as we have indicated, as had ordered that there be a particularised application to amend) took the view that the document before her was not sufficiently particularised.

[12]The arguments before her were primarily to that effect by the Respondents, but also that irrespective, or no doubt because, of the particularisation the proposed amendment was not capable of successful argument, and, being very delayed, carried the greater need to be both particularised and arguable; and that it required proof of new facts, such as to offend against the principle in Selkent Bus Co Ltd v Moore

[1996] ICR 836

, which helpfully enshrines the questions to be considered on an application for amendment out of time in the Employment Tribunals, emphasising as one of the most important factors, by reference to the issue of prejudice, the principle that if new facts are required to be considered which are less easy (if not impossible) for the other party to deal with or adduce, that is likely to be a very important factor, on the balance of prejudice, against allowing an amendment.

[13]The conclusions of the Chairman are set out in paragraphs 26 to 34 of her judgment. It is quite plain that the Chairman was particularly influenced by the failure to particularise the Burton v De Vere claim; that appears at paragraph 29 of the judgment, in which she refers to a decision of this Tribunal (per the President

EAT/301/02

, unreported) in Ranjan in which a proposed amendment in a similar case to add a Burton v De Vere allegation was refused on the basis of lack of particularisation, and the need for the Respondent, if he were to face such amended claim, to obtain considerable fresh evidence.

[14]But, similarly, in relation to the proposed amendment in respect of the principal and agent aspect of the case, the Chairman referred to the non-specific nature of the amendments, and concluded in the event that the amendments should not be allowed.

[15]Two important developments have occurred since that decision. The first, to which we have already referred, is the disapproval of Burton v De Vere in the House of Lords. That has led to the abandonment by Mr Devine-Jones of his reliance on that line of authority, only recently communicated to the Respondent but resulting, as we shall describe, in the excision from the proposed amended Originating Application of a substantial number of paragraphs. That, of course, of itself slims down the amendment that is now sought, and the nature of the task that the Respondents would face if this action proceeded. But it also has the effect of removing that part of the Respondent's objections which relied upon the need for fresh evidence in order to deal with the kind of issues that would be raised in a Burton v De Vere case, such as what steps a reasonable employer could and should have taken, as compared with the steps that this particular employer took.

[16]The second development is the decision, very recent indeed – so recent that the approved transcript only reached this court and the parties yesterday – in Chief Constable of Kent Constabulary v Baskerville

[2003] EWCA Civ 1354

, a decision of the Court of Appeal per Peter Gibson LJ, of 3 September 2003. As will appear, the result of that decision is that we no longer need to refer to Liversidge with a McGlennan exception, but rather to Baskerville itself as permitting, within limits, a principal/agent argument in the field of the police force, and liability of the Chief Officer of Police.

[17]The decision of the Chairman to refuse the proposed amendment led, inevitably, as has been conceded (was conceded below and is conceded before us) to the striking out of the claim which, without the amendment, could not be pursued. This is because, and it is trite but it needs stating, albeit that there are serious allegations made against the individual Police Inspector, Mr Woodward ("the Second Respondent") of discriminatory behaviour towards the Applicant, such behaviour by an individual is not of itself actionable. It only becomes actionable where there is an employer liable either on the broad 'course of employment' basis or on the basis of principal and agent. If the employer is liable then the relevant misbehaving employee becomes also so liable; and of course, in those circumstances, it is then possible for the employer to absolve himself from liability by showing that he took all reasonable steps to prevent such conduct; in which case the employee is then left alone liable.

[18]But if there is no prima facie liability of the employer at all, then there is no case against the employee either, and that was common ground. Hence, on the success of this appeal against refusal of an amendment by the Tribunal hangs the possibility of Mr Devine-Jones bringing a claim at all against Mr Woodward and his police force.

[19]The first position taken by the Respondents on this appeal is quite rightly to point out to us that this is an appeal against the exercise of discretion by the Chairman of the Employment Tribunal, who took the view that the case was insufficiently particularised and was weak; and in the circumstances of delay, for which she did not ascribe any blame, it should not be allowed. Unless there is an error of law by the Tribunal, the Employment Appeal Tribunal is unable to interfere.

[20]It is quite plain to us that there was an error of law which was not in any way the fault of the Tribunal or of the parties; and that is that they were working at that stage on Liversidge , with the McGlennan exception, as the basis of the law. The significance of what we have called (and indeed what the parties have called) the McGlennan exception, is that perfectly properly, on the basis of McGlennan itself, the Respondents argue below that McGlennan should be limited to its own facts because there was a concession in that case by the Chief Constable that in the particular areas in which discriminatory conduct was alleged to have occurred, with regard to transfer and promotions and such like, there had been a specific delegation of responsibility by the Chief Constable, such that it could be said that there was at least arguably an agency. The Respondents argue that that did not establish any broad principle by way of exception to Liversidge .

[21]It is quite plain, since Baskerville , that the court in a discrimination case – and, although Baskerville was a sex discrimination case, it is plain that there is no difference between sex discrimination and race discrimination for this purpose – has no need to look any longer at Liversidge , but Baskerville gives a simple answer itself.

[22]The problem, so far as Liversidge is concerned, had been a construction of what was section 16 of the Race Relations Act 1976 now repealed, and, by analogy, section 17 of the Sex Discrimination Act 1975 ,whereby the words: 16(1) "…the holding of the office of constable shall be treated as employment - (a) by the chief officer of police as respects any act done by him in relation to a constable or that office." was narrowly construed as meaning only acts done by the Chief Officer of Police himself; and no (or no material) attention was paid to the terms of section 32

(2) of the Race Relations Act 1976 or section 41 (2) of the Sex Discrimination Act 1975 .

[23]A more simple approach is taken by Peter Gibson LJ in Baskerville . At paragraph 33 he says:

"If the relevant act is done by a police officer as agent of the Chief Constable with his authority, section 17 (1) [for which we include section 16] has to be read as applying to that act as done by the Chief Constable also." and he says, at paragraph 40: "

It is for the tribunal of fact in each case to determine whether the subject of complaint was the act of a police officer as agent for the Chief Constable and with his authority."

[24]The fact that McGlennan had related specifically to management decisions on recruitment and posting is referred to by Peter Gibson LJ, but he plainly does not limit the management decisions, delegated by a chief constable or chief officer of police to those subordinate to him, to those particular kinds of management responsibilities.

[25]Mr Basu has very forcefully argued (and of course he is right in this regard) that there must be a distinction between 'scope of express or implied authority' and 'course of employment'. The general principles of course of employment, which of course are referred to in section 32(1) of the Race Relations Act 1976 , are well-established to include at common law acts done by an employee which would never be dreamt of as being authorised by an employer but which, subject to the 'frolic of his own' exception, cover almost everything done during a working day. But, section 32

(2) must, he submits, be more restrictive: 32 (2) "Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him."

[26]He points out that so far as the second Respondent is concerned, who was a Police Inspector, there were several layers between the Commissioner of Police and himself, six or seven going through the levels of Chief Inspector and Superintendents and various layers of assistants or deputy commissioners; and that it is not, as he submits, to be assumed automatically that anything done by any superior officer (that is, any one above the rank of constable), within the ordinary scope of his daily duties, is to be ascribed to the "chief officer of police".

[27]Miss Shepherd has met that argument by submitting that the pleading which she puts forward, as considerably circumscribed in the course of argument, does not seek to argue that matters which were plainly on the face of the allegation committed in the course of employment are all to be ascribed to the "chief officer of police"; but only those acts which are a way of performing a specific managerial duty.

[28]Thus, in the amended pleading which she has put before us, there were paragraphs 11 to 14 inclusive which were relied upon for the purposes of a Burton v De Vere case, now abandoned, upon which she does not rely for the purpose of her principal/agent case. Those were allegations that on different alleged occasions the second Respondent made offensive remarks to the Applicant in the back yard of Barkingside Police Station, in a police car, in a packed luncheon area etc.

[29]She submits, however, that, as slimmed down, the nature of the case which she alleges is such that, within the context provided by Peter Gibson LJ in paragraph 40 of the judgment in Baskerville (to which we have referred); it is at least arguable that DI Woodward was acting as agent for the Commissioner of Police. She refers to section 9A of the Police Act 1996 which provides: 9A (1) "The Metropolitan Police force shall be under the direction and control of the Commissioner of Police of the Metropolis appointed under section 9B." For the purpose of performing his duties, and in pursuance of the direction and control of the police which the Commissioner is thus invested with, he has appointed superior officers to carry out line management.

[30]She submits that, in relation to the specific matters identified in the proposed amended grounds of complaint, DI Woodward was acting, albeit inappropriately, within the scope of his express or implied authority, just as would any other agent, estate agent or business or trade agent, doing something in a way which his, or her, principal would, plainly disapprove of, but nevertheless doing so within the scope of his or her implied, if not express, authority.

[31]The examples given in the amended grounds of complaint are: the circumstances or granting or refusing annual leave entitlement; the circumstances of deciding who can use the office canteen; the circumstances of instructing the Applicant to make or not to make reports; and the circumstances of supervision of the Applicant upon specific inquiries.

[32]All those are said to be within line management. She accepts that it would not be arguable that the chief officer of police (in this case the Commissioner) would be liable in respect of the act of one constable towards another, or perhaps one inspector towards a constable from a different station for whom he or she did not have line management; but that in relation to specific decision-making powers given to, or specific duties placed upon, a line manager by the Commissioner and then carried out by that line manager in relation to those below him or her, she submits that it is at least arguable on the facts that the Commissioner would be liable even if they were carried out in a way of which the Commissioner would have disapproved.

[33]Plainly, the Tribunal will have to decide, on the facts, whether any of that is right and in particular whether, for example, there would be a difference between specific appointment to an inquiry, such as the rape inquiry, of which substantial complaint is made in this case, and delegation of powers in that regard and, say, questions as to whether the Inspector has the power to decide who can or cannot use the police canteen, which may, on analysis, be outside his authority.

[34]But we are satisfied that this pleading, as considerably slimmed down, as we shall describe in a moment, is in general terms capable of fulfilling the Baskerville test, at least from the point of view of taking the matter to trial and examining the facts at trial.

[35]We conclude that the Employment Tribunal was in error, through no fault of its own, namely through not having available Baskerville and indeed to an extent being perhaps blinded by the simultaneous argument on Burton v De Vere , which has been stripped away before us, such that we have had the advantage of a much more focused argument for that reason alone; and that, but for that error, we are satisfied the Tribunal would not have come to the conclusion it did that the case was unparticularised.

[36]As it happens, we have had the benefit of seeing a copy of the further and better particulars of the amended proposed Originating Application in Baskerville , which of course again was not available to the Tribunal, and which is, perhaps not unsurprisingly, in similar terms to the proposed amendment in this case, and which passed scrutiny before the Court of Appeal, and indeed was the subject of the decision which left the consideration of whether the arguable case was indeed right or not to the Tribunal.

[37]Of course we are not bound by the existence of that document, which would be specific to the facts of Baskerville , but we are comforted by it in the view that we have come to, that in general terms the Tribunal would be wrong in law to regard the Originating Application, in its slimmed down version now before us, as insufficiently particularised.

[38]Equally, we are satisfied, subject to what we shall say in a moment, that on the same basis as it is now sufficiently particularised, it is also not inherently unarguable, particularly given the words of Peter Gibson LJ.

[39]However, what that does is simply take us on to exercising our own discretion within Selkent as to whether to allow the proposed amendment or not. The document in its present form before us sets out in the first eight paragraphs, with the exception of paragraph 7 (to which we shall return), events ranging from January 1996 to May 1997.

[40]In paragraph 9 it then submits the legal conclusion relating to principal and agent, and in paragraph 10, before it was abandoned, it recited the alleged consequence in terms of Burton v De Vere . In paragraphs 11 to 14 it set out the offensive remarks, which have been abandoned, so far as reliance on them for the purposes of this appeal is concerned, in the course of the hearing; and it did have, at paragraph 15, the now abandoned Burton v De Vere conclusion based on them.

[41]In paragraphs 16 to 22 a case was set out by reference to what is called in paragraph 20 "failure to deal with the Applicant's complaints" by Detective Chief Inspector Miller, and then at paragraphs 21 and 22 (included in that passage) further allegations of offensive remarks by the second Respondent (also not now relied upon), and then in paragraph 23 there is a recital of a Burton v De Vere conclusion. In paragraph 24 there is a case of alleged victimisation: 24 "In the period following his meeting with DCI Miller, DI Woodward monitored the Applicant's duties closely. For example, if the Applicant was booked out of the office to take a statement, DI Woodward would telephone the witness to confirm the appointment and check the duration of the Applicant's visit. The Applicant was warned that the DI was checking upon him and looking for fault to ruin his career." There is, at paragraph 25, an assertion that that falls within the principal/agent liability doctrine.

[42]At paragraphs 26 and 27 there are further allegations relating to DCI Miller, and then at 28 through to the end there comes what is called the culmination, which is in fact an allegation by reference to the principal/agent argument, with regard to the way in which the second Respondent supervised the Applicant in the course of the rape inquiry to which we have referred.

[43]That document was already slimmed down just prior to the hearing by the abandonment of those allegations which related to Burton v De Vere and, as we have indicated, six more paragraphs went in the course of the hearing, the 'offensive remarks' passages.

[44]We shall deal now, before we deal with the balance, with that part of the pleading which relates to DCI Miller. It is common ground (and could not really be denied) that in order for there to be liability for discrimination there has to be an act of discrimination. By section 78 (1) of the Act ""act" includes a deliberate omission" and, as we have indicated, it is common ground, consequently, that an omission which is not a deliberate omission is not an act.

[45]The pleading of the case in respect of DCI Miller in paragraph 20 is summarised, as we have already indicated, by describing it as a failure to deal with the Applicant's complaints, which is said to amount to an act of discrimination for which the first Respondent is liable.

[46]Miss Shepherd recognised that she needed to establish a deliberate failure to deal. In those circumstances this Tribunal expressed the conclusion, by which we stand, that, if there is to be a case which is required to be proved at trial that DCI Miller, in doing what he did, deliberately failed to deal with the Applicant's complaints, then that needs to be pleaded. It is a serious allegation that a senior officer deliberately fails to deal with complaints. Effectively it can only be an allegation of bad faith, unless of course it is done under express orders from higher authority who themselves would be acting unlawfully.

[47]If there is to be a case of deliberate failure put forward in the pleading it can only be done by an amendment, for which Miss Shepherd sought leave today. Plainly such a serious allegation can only be brought forward, at any rate by amendment, if there is a ground upon which it can be pursued; or, put another way, on any amendment application, as was done by the Tribunal in this case, the strength of the case is entitled to be assessed.

[48]Apart from asserting that it was to be inferred from the fact that the Applicant's complaints were not dealt with that the failure must have been deliberate, which has not previously been asserted, and which itself would need to be particularised, the only matter on which Miss Shepherd could rely was that her instructions were that DCI Miller had been investigated by the police force, and that it might be that he was investigated on the basis that he had deliberately failed to deal with the Applicant's complaints. If that were so, and whether or not he had been found guilty in such inquiry, then that of itself would be enough for her to be able at least to allege that it was to be inferred from the existence of such inquiry that it might be that he did indeed deliberately fail to deal with the complaints. She had no evidence.

[49]Rather than simply leave the matter to speculation, we invited Mr Basu to take instructions, and he told us on instructions that DCI Miller had been investigated and charged, not with deliberately failing to deal with the complaints, but with neglect of duty and indeed that he had been found guilty and reprimanded in relation to one such neglect of duty.

[50]It appears, therefore, that in due course in disclosure there will (or may, depending on the nature of disclosure) be corroboration of the nature of those instructions to Mr Basu, and in any event he has, as is perfectly appropriate, undertaken that if the nature of those instructions which he has given to the court turn out to be erroneous he will notify the Applicant's solicitor's to that effect. But if that be right, then there is not even the ghost of a speculation upon which a case of deliberate failure to deal with the Applicant's complaints can be made; and none other was put forward by Miss Shepherd.

[51]In those circumstances we refuse the application for amendment in relation to allegations which refer to DCI Miller. We make it plain, of course, that if it should be the case that facts hereafter arise which would justify the making of an amendment, which is brought timeously after such discovery, then it may be that it could be held to have been not reasonably practicable to have amended earlier. But while preserving that possibility, we are satisfied that there is no basis for an amendment such as is sought by Miss Shepherd, and that without that amendment the amendment in that regard which fell to be considered by the Tribunal must in any event fall.

[52]That leaves consideration of what is left against Mr Woodward; and that falls effectively into three chunks in the proposed amended grounds of complaint.

[53]We work backwards. We are satisfied, in the light of our general conclusions in relation to this case, that the pleaded case making allegations in relation to the rape inquiry is sufficiently pleaded, and within Baskerville ought to be permitted to go forward. That relates to a period from mid-October 1998 until August 1999.

[54]Mr Basu alleges that that, or some part of that, account of those incidents, will be out of time. It may be that an application hereafter might be made, when the matter becomes clearer on that basis; although one anticipates that there will be a defence put forward by reference to continuous acts and/or just and equitable in relation to a suggestion that it was only in August 1999 that the full picture became clear.

[55]We say nothing which either encourages or discourages any such application or a defence to such application; but at any rate even having taken into account the fact that there may be a time challenge, we are satisfied that the amendment is sufficiently arguable that it should go forward.

[56]Mr Basu suggested that there might be difficulty in relation to investigating this matter, so far as fresh evidence is concerned; not in relation to the underlying facts which of course are not new, but in relation to the suggestion that this fell within the line management responsibility of DI Woodward, such as to qualify, arguably at any rate, for Peter Gibson LJ's questions in Baskerville . He points out that the Commissioner of Police changed in January 1999, which is just after the beginning of the events which are complained of.

[57]We are satisfied that the absence of the Commissioner of Police in this regard, although in any event there is no suggestion that a proof of evidence cannot be obtained from him, will not materially prejudice the nature of the Respondent's case which will, we suspect, depend very substantially on the existence of relevant documents in any event.

[58]In paragraph 24 (which we have cited) there is a very unparticularised allegation about the manner of the second Respondent's monitoring of the Applicant. It is plainly objectionable on the grounds of lack of particularity. It is unclear whether the example that is put forward can in fact be evidenced, because there is no date given, no name of the alleged witness and it reads very much like a generic allegation which may never be capable of being proved; and we have no doubt that if this is to be pursued it will need full particularisation. It may of course turn out that it is a proper example of something that in fact occurred more than once, which may lead to other incidents being evidenced; but it is a wholly inappropriate way in which this case, which was of course in its original form pleaded by the Applicant himself, should have gone forward or should now go forward.

[59]But paragraph 24 is not a new paragraph. It has remained in the pleading from the outset. The only thing that is new is that this is now relied upon as showing the nature of the performance by DI Woodward of his line management responsibilities in his alleged capacity as agent for the Commissioner of Police. It may be that this paragraph will need to be considered again on a strike out application or otherwise; but we are not prepared to say that it should not go forward, with the additional paragraph 25, by way of an amendment, together with the rape inquiry paragraphs.

[60]We consider, however, that the allegations relating to January 1996 through to May 1997 fall into an entirely different category. If they now are to be the subject of a case based upon allegations of responsibility by senior officers including the former Commissioner, then that is going to require investigation of matters a fairly long time ago. We lay no blame on anyone in relation to the delay that has occurred; but it is nevertheless a factor which weighs heavily with us when we exercise the balance of it in relation to prejudice (to which we referred earlier) in the light of Selkent , and indeed any principles underlying the grant of permission to amend.

[61]We are conscious that the facts in any event will be entitled to be led, subject to the discretion of the Tribunal hearing the matter, as part of the background by the Applicant. But we do not conclude that it is right that the Respondent should be at risk of liability in respect of claims made with regard to matters back in 1996; and in the exercise of our discretion we do not permit the amendment in paragraph 9 to seek to bolt onto those very stale allegations the new allegation that they were committed by DI Woodward as the agent of the then Commissioner of Police.

[62]We accept paragraph 7 which appears out of place in those allegations, relating as it does to November 1998, although we have, as we have already indicated, some doubts as to whether directions as to who could use the canteen are necessarily within the delegated responsibility of DI Woodward, as opposed to being a gratuitously vindictive act by him. Nevertheless, we conclude that that paragraph 7, accompanied by the new allegation in paragraph 9, should be permitted to go forward.

[63]We therefore allow the appeal, to the limited extent of granting permission to amend in a form which will mean that the further amended grounds of complaint will be permitted to include, by way of allegations (if matters remain in as factual assertions then they will have to be qualified to make it clear that they do not found a cause of action), only in respect of paragraph 7, paragraph 24 and paragraphs 28 to 42, with the accompanying legal conclusions, limited of course to Baskerville conclusions, not Burton v De Vere conclusions.

[64]We would be grateful if Counsel could sign and lodge, so that it can be attached to the Order, a copy of what we hope can be an agreed form of that amended grounds of complaint. (Permission to appeal to the Court of Appeal refused)