GREGORY V COMMISSIONER FOR THE POLICE FOR THE METROPOLIS [2014] EWHC 3922 (QB)
Child Abuse Compensation Claims – Actions against the police
FACTS:-
The Claimant applied for a jury trial in a claim against the Commissioner for damages arising out of two arrests. The Claimant issued particulars of claim against the Commissioner on 29 November 2012. These were served on 11 December 2012. They contained allegations of wrongful arrest, false imprisonment, malicious prosecution and assault in relation to the two arrests. There was an Acknowledgment of Service on 13 December 2011, in which the Commissioner notified his intention to defend the claim. A defence was lodged on 8 January 2013. An amended defence was then lodged on 8 July 2013. At a subsequent case management conference the Claimant applied for trial by way of judge and jury. On 14 January 2014 Master Yoxall heard the Claimant's application for jury trial and rejected it. The Claimant appealed.
JUDGMENT:-
Mr Justice Cranston said that under the Senior Courts Act 1981 there was a presumption in favour of trial by jury in such cases but an application for this had to be made within 28 days of the defence. Section 69(1) of the Senior Courts Act 1981 provided that when, on the application of any party to an action to be tried in the Queen's Bench Division the court was satisfied that there was in issue (a) a charge of fraud against that party; or (b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or (c) any question or issue of a kind prescribed for the purposes of the paragraph, the action was to be tried with a jury, unless the court was of opinion that the trial required a prolonged examination of documents or accounts or any scientific or local investigation which could not conveniently be made with a jury. Under sub-section (3) an action which did not by virtue of subsection (1) fall to be tried with a jury "shall be tried without a jury unless the court in its discretion orders it to be tried with a jury…"
Cranston J referred to the following caselaw:-
"69.— Trial by jury.
(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue--
(a) a charge of fraud against that party;
(b) a claim in respect of malicious prosecution or false imprisonment;
…
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury...
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
….
(4) Nothing in subsections (1) to (3B) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection."
Pursuant to section 69(2), CPR 26.11(1) prescribed the period in which the claim had to be made as within 28 days of service of the defence. "Defence" in not defined in CPR 2.3 (Interpretation) or the Glossary to the rules.
When the case did not fall within section 69(1), such as with section 69(3), how should the court's discretion be exercised? In Frank Cook v Telegraph Media Group Limited [2011] EWHC 763 (QB) the court said that contemporary practice was against juries. Later in the judgment, Tugendhat J referred to the Overriding Objective in CPR 1 and the case management powers such as in CPR 3.1(2)(a) to extend time. He stated that the implications of these provisions for the exercise of the court's discretion under section 69(3) was that, once the 28 days provided for in CPR 26.11 had expired, the court would decide the mode of trial by starting with the predisposition in favour of a trial without a jury. The court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agreed between themselves. Any application under CPR 3.1(2)(a) to extend the 28 day period would be a matter for the court's discretion, to be exercised judicially and in accordance with the Overriding Objective. The court would not approach the matter any differently if it was considering the exercise of a discretion arising directly under section 69(3) or under CPR 3.1(2)(a). The loss of the right to be tried by jury was not a sanction falling under CPR 3.9(1).
The Claimant contended firstly that "defence" in CPR 26.11(1) included "amended defence" so that the 28 day period in which to apply for jury trial prescribed under section 69(1) of the Senior Courts Act 1981 ran from when an amended defence was served.
Cranston J said that in his judgment there were good practical reasons for the 28 day limit running from the date of the defence. Otherwise there would be uncertainty, since the defence might be amended at any time. Moreover, once a Claimant advanced particulars of any claim, the matters were in issue unless the Defendant admitted them. In this case the Claimant knew from the defence on 8 January 2013, indeed from the Acknowledgment of Service three weeks earlier, that the Commissioner did not admit any of what he was alleging in relation to unlawful arrest, malicious prosecution or false imprisonment. The Claimant had 28 days to apply for jury trial; he did not take advantage of his right to do that. Thus the matter fell within the Master's discretion.
The Claimant’s counsel submitted that the court retained a discretion to allow a jury trial as part of its case management powers conferred by CPR 3.1 to extend time for an application for jury trial outside the 28 day period. Cranston J said that this would contradict the decision in Frank Cook, that the discretion to be exercised under CPR 3.1(2)(a) in this type of case ran in tandem with that to be exercised under section 69(1) and that it was not an issue of relief from sanction under CPR 3.9.
If the application for trial by jury had been in time there would have been a presumption of trial by jury. That presumption could have been displaced if the court was of the opinion that the trial required a prolonged examination of documents or accounts which could not conveniently be made with a jury. The Master was inclined to conclude that the trial would not involve a prolonged examination of documents or accounts so trial by jury would have followed. However, the claimant was over three months late in applying for trial by jury. The presumption as a result was against it. The Master in this case exercised his discretion to order trial by judge alone. There was no suggestion that he ignored relevant considerations or that he took into account irrelevant considerations. By no stretch of the imagination could it be said that no reasonable Master would have reached his conclusion that trial by judge alone was appropriate. Nor could his decision be said to be unjust in any way because of any procedural error or other irregularity.
The appeal would be dismissed. There would no jury trial if the case proceeded.
Child Abuse Compensation Claims – Actions against the police
FACTS:-
The Claimant applied for a jury trial in a claim against the Commissioner for damages arising out of two arrests. The Claimant issued particulars of claim against the Commissioner on 29 November 2012. These were served on 11 December 2012. They contained allegations of wrongful arrest, false imprisonment, malicious prosecution and assault in relation to the two arrests. There was an Acknowledgment of Service on 13 December 2011, in which the Commissioner notified his intention to defend the claim. A defence was lodged on 8 January 2013. An amended defence was then lodged on 8 July 2013. At a subsequent case management conference the Claimant applied for trial by way of judge and jury. On 14 January 2014 Master Yoxall heard the Claimant's application for jury trial and rejected it. The Claimant appealed.
JUDGMENT:-
Mr Justice Cranston said that under the Senior Courts Act 1981 there was a presumption in favour of trial by jury in such cases but an application for this had to be made within 28 days of the defence. Section 69(1) of the Senior Courts Act 1981 provided that when, on the application of any party to an action to be tried in the Queen's Bench Division the court was satisfied that there was in issue (a) a charge of fraud against that party; or (b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or (c) any question or issue of a kind prescribed for the purposes of the paragraph, the action was to be tried with a jury, unless the court was of opinion that the trial required a prolonged examination of documents or accounts or any scientific or local investigation which could not conveniently be made with a jury. Under sub-section (3) an action which did not by virtue of subsection (1) fall to be tried with a jury "shall be tried without a jury unless the court in its discretion orders it to be tried with a jury…"
Cranston J referred to the following caselaw:-
- Goldsmith v Pressdram Ltd [1988] 1 WLR 64
- Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49.
- Aitken v Preston [1997] EMLR 415,
- Oliver v Calderdale Metropolitan Borough Council, Court of Appeal 23 June 1999
- Armstrong v Times Newspapers Ltd [2006] EWCA Civ 519; [2006] 1 WLR 2426,
- Fiddes v Channel Four Television Corporation [2010] EWCA Civ 730; [2010] 1 WLR 2245
"69.— Trial by jury.
(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue--
(a) a charge of fraud against that party;
(b) a claim in respect of malicious prosecution or false imprisonment;
…
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury...
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
….
(4) Nothing in subsections (1) to (3B) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection."
Pursuant to section 69(2), CPR 26.11(1) prescribed the period in which the claim had to be made as within 28 days of service of the defence. "Defence" in not defined in CPR 2.3 (Interpretation) or the Glossary to the rules.
When the case did not fall within section 69(1), such as with section 69(3), how should the court's discretion be exercised? In Frank Cook v Telegraph Media Group Limited [2011] EWHC 763 (QB) the court said that contemporary practice was against juries. Later in the judgment, Tugendhat J referred to the Overriding Objective in CPR 1 and the case management powers such as in CPR 3.1(2)(a) to extend time. He stated that the implications of these provisions for the exercise of the court's discretion under section 69(3) was that, once the 28 days provided for in CPR 26.11 had expired, the court would decide the mode of trial by starting with the predisposition in favour of a trial without a jury. The court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agreed between themselves. Any application under CPR 3.1(2)(a) to extend the 28 day period would be a matter for the court's discretion, to be exercised judicially and in accordance with the Overriding Objective. The court would not approach the matter any differently if it was considering the exercise of a discretion arising directly under section 69(3) or under CPR 3.1(2)(a). The loss of the right to be tried by jury was not a sanction falling under CPR 3.9(1).
The Claimant contended firstly that "defence" in CPR 26.11(1) included "amended defence" so that the 28 day period in which to apply for jury trial prescribed under section 69(1) of the Senior Courts Act 1981 ran from when an amended defence was served.
Cranston J said that in his judgment there were good practical reasons for the 28 day limit running from the date of the defence. Otherwise there would be uncertainty, since the defence might be amended at any time. Moreover, once a Claimant advanced particulars of any claim, the matters were in issue unless the Defendant admitted them. In this case the Claimant knew from the defence on 8 January 2013, indeed from the Acknowledgment of Service three weeks earlier, that the Commissioner did not admit any of what he was alleging in relation to unlawful arrest, malicious prosecution or false imprisonment. The Claimant had 28 days to apply for jury trial; he did not take advantage of his right to do that. Thus the matter fell within the Master's discretion.
The Claimant’s counsel submitted that the court retained a discretion to allow a jury trial as part of its case management powers conferred by CPR 3.1 to extend time for an application for jury trial outside the 28 day period. Cranston J said that this would contradict the decision in Frank Cook, that the discretion to be exercised under CPR 3.1(2)(a) in this type of case ran in tandem with that to be exercised under section 69(1) and that it was not an issue of relief from sanction under CPR 3.9.
If the application for trial by jury had been in time there would have been a presumption of trial by jury. That presumption could have been displaced if the court was of the opinion that the trial required a prolonged examination of documents or accounts which could not conveniently be made with a jury. The Master was inclined to conclude that the trial would not involve a prolonged examination of documents or accounts so trial by jury would have followed. However, the claimant was over three months late in applying for trial by jury. The presumption as a result was against it. The Master in this case exercised his discretion to order trial by judge alone. There was no suggestion that he ignored relevant considerations or that he took into account irrelevant considerations. By no stretch of the imagination could it be said that no reasonable Master would have reached his conclusion that trial by judge alone was appropriate. Nor could his decision be said to be unjust in any way because of any procedural error or other irregularity.
The appeal would be dismissed. There would no jury trial if the case proceeded.