(back to preceding text)

72.  Of course, this does not mean that the respondents can litigate the claims for battery irresponsibly but with impunity. The usual safeguards apply. Once the evidence has been heard and the arguments have been presented, the trial judge has a wide discretion in awarding costs and may use it to reflect his or her view of the substantial merits of the claimants’ insistence on pursuing the claims in battery. Equally significantly, the Chief Constable can protect his position by Part 36 offers or payments. The House was not surprised to be told that he had already made Part 36 offers carrying costs consequences, depending on the amount of any damages awarded and on the eventual outcome. The claimants and their advisers will have to take these factors into account when deciding what they should do.

73.  For these reasons, and in substantial agreement with Lord Scott, I would dismiss the appeal.

LORD CARSWELL

My Lords,

74.  On 15 January 1998 at about 4.20 am James Ashley was shot dead by PC Sherwood, a member of the Sussex Police Special Operations Unit, in the course of an armed raid on his flat in Hastings. His death was a tragic error which should not have happened, as the appellant Chief Constable has explicitly admitted. He has accepted responsibility for the deficiencies in the planning of the operation and the briefing of the police personnel, which led up to the fatal shooting and without which the raid would probably have taken place without incident. He has agreed to pay damages for the admitted negligence of his force, and if it is adjudged that aggravated damages should be payable, to pay them on that basis.

75.  The facts relating to this appeal have been fully set out by my noble and learned friend Lord Scott of Foscote and I would gratefully accept his account without repeating them. In agreement with him, I consider that they give rise to two main issues, first, whether the decision of the Court of Appeal was right in respect of the circumstances in which a defendant can establish self-defence in a civil action for assault or battery, and, secondly, whether the claim for assault and battery should be stayed as an abuse of the process of the court or should be allowed to proceed to trial.

76.  On the first issue I agree with Lord Scott and with the Court of Appeal, that the Chief Constable’s appeal against the adoption of solution 2, as set out by Sir Anthony Clarke MR, should be dismissed. I do not see that there is any a priori reason why the criteria should be identical. Indeed, as Lord Scott has pointed out (para 13), there is a clear difference between the aims of the two branches of the law. The criminal law has moved in recent years in the direction of emphasising individual responsibility. In pursuance of this trend it has been held in different areas of the criminal law that it is the subjective personal knowledge or intention of the accused person which has to be established: see, e.g., R v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118. So in the case of self-defence it has been held that that if a defendant is labouring under an honest mistake, even if it is regarded as unreasonable, the defence is open to him: R v Williams (Gladstone) [1987] 3 All ER 411. The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people. I agree that that aim is best met by holding that for the defence of self-defence to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might afford him that defence and that that belief was based upon reasonable grounds. Sir Anthony Clarke MR’s solution 2 is therefore the correct one. I do not myself find the cases of Cope v Sharpe (No 2) [1912] 1 KB 496 and Cresswell v Sirl [1948] 241 helpful in deciding the present issue, but if and in so far as they may be said to support a different conclusion I would not regard them as correct. I would not, however, support Lord Scott in regarding solution 3 as possibly containing the correct principle, although it has been favoured by some distinguished academic commentators: see Brazier, The Law of Torts, 10th ed (1999) p 82, Markesinis and Deakin’s Tort Law, 5th ed (2003) p 424.

77.  On the second issue I respectfully disagree with Lord Scott and the majority in the Court of Appeal, as I consider that Auld LJ and Dobbs J were right in their view that to allow the cause of action in assault and battery to proceed would be an abuse of the process of the court.

78.  There has been a very detailed and thorough investigation of the circumstances of Mr Ashley’s death. PC Sherwood was tried on a charge of murder, on which he was acquitted on the direction of the trial judge. I would observe in passing that a charge of murder in such circumstances is a very blunt instrument, but in the present state of our law of homicide the prosecuting authorities had nothing else at their disposal if they were going to bring a charge. An amendment of the law to cover such cases in a just and proportionate fashion is long overdue, and I would commend it to Parliament for their attention. The coroner decided that he would not resume the inquest, as he was empowered to do, and the Government has declined to order a public inquiry. It is patent that the respondents’ wish to pursue the cause of action in assault and battery stems from a desire to publicise Mr Ashley’s death and to attempt to obtain a finding which will hold PC Sherwood at fault in civil law. As Dobbs J said at para 99 of her judgment, it is their admitted intention to pursue the claim “to the bitter end", irrespective of any damages awarded for negligence.

79.  It is not necessarily an abuse to proceed with a civil claim in tort against a defendant who has been acquitted on a charge of a criminal offence based on the same set of facts, since the content of the criminal offence and the tort may not be identical, the defences may vary and the standard of proof will differ: see, e.g., Raja v Van Hoogstraten [2005] EWHC 2890 (Ch), and contrast this with Hunter v Chief Constable of the West Midlands Police [1982] AC 529, where the allegation of assault by police officers on the claimants had been disproved beyond reasonable doubt in the course of the criminal proceedings. This may be legitimate where the claimant is seeking a remedy which the civil law affords, generally damages. In my view the situation is different where the claimant already has been given or is to be given that remedy and wishes to pursue the civil case for collateral reasons. This in my view is the nub of the present case.

80.  The High Court has a discretion in its inherent jurisdiction to stay or dismiss an action as being an abuse of the process of the court. This may be exercised on various grounds (as to which see Jacob, The Inherent Jurisdiction of the Court, (1970) 23 CLP, 40-44). The ground material to the present case is that to proceed would serve no useful purpose. The only relief which the respondents could ask the court to give them would be a declaration and, for the reasons which I shall give, I consider that one should not be made. I am unable to agree with Lord Scott’s view that it would be a suitable case for what he terms vindicatory damages. In my opinion the only function for damages of this kind is when there is no other remedy which will meet the case - there being perhaps no provable loss -- except a nominal award of damages to establish formally the validity of the claim. It is a time-honoured way of establishing a point of principle or vindicating wounded feelings or character: Salmond & Heuston on the Law of Torts, 21st ed (1996) p 9. In the present case the appellant has admitted liability for negligence and has undertaken to pay the respondents damages, including any award for aggravated damages (though it is more than a little difficult to see how such damages can be in question, when it is very questionable whether the deceased was conscious and sentient for any significant period between the shooting and his death).

81.  Both Dobbs J and Auld LJ expressed the opinion, which I think is correct, that the civil courts exist to award compensation, not to conduct public inquiries. Nor is it their function to provide explanations, as Arden LJ suggested (para 189 of her judgment). On the contrary, the existence of a sanction by way of damages is the essential mark of a tort: Salmond & Heuston, op cit, p 9.

82.  Auld LJ summarised his reasons for holding that to continue with the claim for assault and battery would be an abuse of the process of the court in para 186 of his judgment, with which I agree entirely:

“186. Sir Anthony Clarke MR rightly observed, in para 94 of his judgment, that, whether proceedings with a collateral purpose are an abuse of the process of the court turns on the particular facts of each case. I am strongly of the view that such a collateral purpose in the circumstances of this case is an abuse for the following reasons, some already succinctly identified by Dobbs J in indicating that, but for her strikeout of the claim, she would have stayed it until after the conclusion of the claim in negligence. (i) The remedy in respect of the events leading to and including the fatal shooting is already wholly provided for in the damages recoverable in respect of the admitted negligence of the chief constable in respect of those events and in respect of the admitted short period of false imprisonment. (ii) Although the defendant to the claims is the chief constable, the person most immediately concerned, and personally affected by the continuance of the claim in battery with a view only to a declaration of unlawful killing, is PC Sherwood. Any such ‘redress’ as the end product of an exercise of securing for the claimants further information about and explanation of the tragic death of the deceased, however understandable in human terms their wish for it, is not the proper function of civil proceedings. Such proceedings are not, and should not be treated as, a proxy for a public inquiry. (iii) Given the critical issue of self-defence common to the criminal proceedings and the civil complaint of battery, the latter would, in substance, subject PC Sherwood to allegations of criminality of which he has been acquitted in the criminal proceedings. (iv) In addition, PC Sherwood and, through him, the chief constable, would have the incubus of establishing his innocence, albeit to the civil standard, and by reference to a standard of reasonableness of necessity not required of him in the criminal proceedings where the burden of disproving self-defence lay on the prosecution and he was able to rely upon his honesty of belief, whether or not reasonably held, in the necessity for self-defence. (v) Although, as I have said, the claimants’ concern to pursue this matter, as Dobbs J put it, ‘to the bitter end’ is understandable in human terms, there are other considerations to he borne in mind, including: (1) the effect on PC Sherwood and others immediately involved in the events surrounding the fatal shooting, of pursuit after all these years of this part of the claim; (2) proportionality of the public costs of funding both sides on an issue, which in terms of damages is now entirely academic, given the chief constable’s admissions of liability in negligence; and (3) the interests of finality of proceedings—enough is enough….”

I would only add that I cannot regard it as likely, as Sir Anthony Clarke MR suggested, that it should be a comparatively short trial and thus not too costly. It has all the portents of a bitterly contested case which will drag out at great length and at substantial expense.

83.  For these reasons I would regard proceeding with the claim of assault and battery as an abuse of the process of the court. I would allow the chief constable’s appeal and stay that claim. I would, however, do so on the terms that the appellant should, subject to any issue if there has been a Part 36 offer, pay all the respondents’ costs, including their costs in this House.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

84.  This appeal raises two issues arising out of a claim in battery against the police. The first concerns the defence of self-defence where the defendant was mistaken in his belief that he was under threat. The second issue is whether the claim should proceed, in view of a concession made by the defendant. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote, and gratefully adopt his description of the history of this case. I can therefore turn straight to the two issues.

85.  Both authority and principle appear to me to point firmly in favour of the conclusion that, where a defendant was not actually under the threat of imminent attack, self-defence can only be an answer to a claim in battery if he reasonably, as well as honestly, believed that he was under such a threat. In his numinous judgment on this issue in the Court of Appeal [2007] 1 WLR 398, Sir Anthony Clarke MR discussed the principles, the authorities, and the textbooks at paras 39 to 81, and there is little left to say about it. However, there are four points I wish to mention.

86.  First, in the context of a claim in tort, the law often has to strike a balance between two conflicting interests or rights. Like Lord Scott of Foscote, I consider that it would be wholly unfair on the victim of violence, and unduly favourable to the inflictor, if the victim had no right to any redress, and the inflictor had no civil liability, simply because the inflictor had an honest belief that he was under the threat of imminent attack, irrespective of the reasonableness of that belief.

87.  Secondly, the fact that the civil law differs from the criminal law in this respect does not cause me any concern. The criminal law and civil law of battery substantially march together, as my noble and learned friend, Lord Rodger of Earlsferry (whose speech I have had the opportunity of seeing in draft) says. Nonetheless, the criminal law often involves very different considerations from the law of tort, as Lord Scott explains. The fact that the belief of imminent attack must be reasonable in the tortious context, but need only be genuine to operate as a defence to a criminal charge, seems to reflect the same sort of dichotomy between the jurisdictions as the difference in the applicable standards of proof.

88.  Further, it is noteworthy that the criminal law used to require the belief of a defendant who thought he was under imminent threat of attack to be reasonable as well as genuine. It was only following a report of the Criminal Law Revision Committee that this was changed by the courts (see paras 45 to 52 of the Master of the Rolls’ judgment). It would be surprising, indeed wrong in principle, if the judges changed the law of tort simply to reflect a change they had effected to the criminal common law pursuant to recommendations of the Criminal Law Revision Committee and decisions in criminal cases (cited by the Master of the Rolls at the end of the passage quoted in para 52). While such recommendations and cases may have some persuasive force outside the criminal law, they do not have to be followed in a field where they were not intended to apply and where they do not have to be applied as a matter of logic.

89.  Thirdly, there is the argument that the inflictor of an alleged battery has to go further than the Court of Appeal held, and show that he was in fact under imminent threat of attack. The point appears to me to be difficult, and the authorities are not entirely clear on the point - see the Master of the Rolls’ analysis, in paras 63 to 78. Like him, I think that the balance of authority favours the conclusion that a defendant does not have to go that far, although the point is plainly open for reconsideration in your Lordships’ House.

90.  There are powerful arguments both ways. It is easy to conceive of circumstances where it would be inevitable that either the inflictor or the victim would have a thoroughly understandable sense of great grievance if, as the case may be, there was or was not a valid claim for damages for the infliction of severe violence in circumstances where the inflictor reasonably, but wrongly, believed he was under imminent threat of attack. As the Ashley’s have not challenged the Court of Appeal’s conclusion on this issue, it appears to me that in this case it should be left open in your Lordships’ House.

91.  Fourthly, if a reasonable but mistaken belief will do, other questions may need to be considered. One such question is whether, when seeking to justify the reasonableness of his belief, a defendant can rely on factors which were not the claimant’s responsibility. There is obviously a strong argument for saying that a defendant can rely on such factors. Otherwise, one would be getting close to holding that the belief must be correct. Further, it could lead to difficulties if one had to decide whether the claimant was responsible for the defendant’s belief, especially if only some of the factors which influenced the defendant could be taken into account. However, it can also be said to be unfair on the claimant if matters for which he had no responsibility can serve to justify the reasonableness of the defendant’s mistaken belief. The answer may ultimately depend on whether one judges the issue of reasonableness from the claimant’s point of view or from that of the defendant.

92.  Subject to that point, I believe that it would be inappropriate for your Lordships in this case to cut down the factors which can be taken into account when deciding that issue. When considering the reasonableness of the belief of a defendant in a particular case, it must be for the trial judge to take into account those factors which, provided they are permissible in principle, appear to him relevant, and to give each of them such weight as he thinks appropriate.

93.  Arden LJ said below, at para 196, that it might be inappropriate to take into account “any mistake that was not one caused by Mr Ashley but by an earlier inaccurate briefing", apparently on the ground that it “did not form part of the immediate events in which PC Sherwood perceived a real and imminent danger". She may well be right that the inaccuracy of any briefing should be irrelevant because, as discussed, it was (presumably) not caused by Mr Ashley. Subject to that, however, at least if the claim was against PC Sherwood, it seems to me that he would, in principle, be entitled to ask the court to take into account what he had been told at the briefing, when considering whether his belief at the time he shot Mr Ashley was reasonable, even if what he was told was negligently relayed to him.

94.  However, given that the defendant in these proceedings is the Chief Constable, I question whether it would be open to him to rely on what his police officers told PC Sherwood about Mr Ashley as justifying PC Sherwood’s belief, at least to the extent that they were negligently inaccurate in their briefing. There must be a strong case for saying that it should not be open to the Chief Constable to rely on his own (if vicarious) negligently inaccurate imparted information to PC Sherwood to justify the reasonableness of a shooting by PC Sherwood for which he was vicariously liable.

95.  The Chief Constable’s argument that the battery claim should not be allowed to proceed rests on the fact that he has submitted to judgment on the negligence claim and has accepted liability for damages. The terms and effect of that concession (“the concession”) were explained in paras 7 to 11 in the judgment of Sir Anthony Clarke MR, the central parts of which are quoted by Lord Scott.

96.  The Chief Constable’s case can be summarised in five propositions. (i) The Ashleys’ claim against the Chief Constable rests on two grounds, negligence and battery. (ii) The Chief Constable has submitted to judgment for negligence, and to an assessment of those damages. (iii) The damages which the Ashleys could recover for battery would be no more than the damages they will recover for negligence. (iv) There is thus no point in the battery claim proceeding. (v) Accordingly, that claim should be stayed.

97.  This contention raises the question of what circumstances, if any, justify a claimant pursuing a claim in tort purely for the purposes of establishing that the tort was committed, viz for personal or public vindication. However, before addressing that question, I turn to consider four preliminary points, two of which are relied on by the Ashleys, and two by the Chief Constable.

98.  First, the Ashleys say that they should be entitled to seek to establish their claim in battery, as otherwise they may not recover their costs of that issue. In my view, that could be a good argument for refusing a stay. When he made the concession, the Chief Constable did not offer to pay the Ashley’s’ costs; that remains the position. It would be open to either of the parties, despite the concession, to seek to go to trial on the battery claim with a view to recovering their costs of that issue if they succeed on it (although the allocation of costs would, of course, be a matter for the court). The court could stay a claim, if it was being pursued simply to recover costs, but it has not been suggested that that would be appropriate in this case.

99.  Accordingly, the Ashleys’ argument based on costs is good in principle, but that need not (and, I suspect, would not) be the end of the matter, if the Chief Constable’s case for staying the battery claim were otherwise sound. In that event, your Lordships could grant a stay of the battery claim on terms that he accepts liability to pay all the Ashleys’ costs to date (including the costs of the battery claim), subject to his right to seek to rely on any offer under Part 36 of the Civil Procedure Rules to reduce or avoid such liability.

100.  When a defendant submits to judgment, then, subject to the effect of any Part 36 offer which has been made, the claimants should normally be entitled to all their costs of the action up to the date of the submission (and, at least often, for a short further period thereafter, to enable the claimants to consider the submission). In this case, although there would be no resolution of the battery claim, it was put forward as an alternative basis for their claim for damages, and it has only become unnecessary as a result of the concession. (Indeed, that reflects the Chief Constable’s argument as to why the battery claim should be stayed). Even now, the Chief Constable’s proposals have not included any offer on costs. Therefore, if the battery claim is stayed, it should be on terms that, subject to there having been a Part 36 offer (the effect of which would have to be considered by the court if it could not be agreed), the Ashley’s should be awarded all their costs of the action to date.

101.  Secondly, the Ashleys say they should be able to proceed with their claim in battery to recover aggravated damages. This argument did not really feature in their printed case, and it was not apparently pursued below. That was presumably because the Chief Constable’s concession extends to liability for aggravated damages (see para 11 of the Master of the Rolls’ judgment). However, it appears to be common ground that aggravated damages can be awarded for battery but not for negligence, and I am slightly troubled by the assumption that a defendant can confer jurisdiction on the court to award aggravated damages for a tort in respect of which aggravated damages are not recoverable as a matter of law.

102.  Aggravated damages are awarded for feelings of distress or outrage as a result of the particularly egregious way or circumstances in which the tort was committed, or in which its aftermath was subsequently handled by the defendant. If that is so, I cannot see why such damages should not logically be recoverable in some categories of negligence claims. In the present case, for instance, it must have been reasonably foreseeable (the normal tort test) that a negligently mishandled armed police raid could result in just the sort of mental distress or shock that aggravated damages are intended to reflect. It appears to me that it would be reminiscent of the bad old days of forms of action if the court held that the Ashley’s’ claim could result in aggravated damages if framed in battery, but not if framed in negligence. In my view, there is a strong enough case for saying that aggravated damages would be recoverable for the instant negligence for the point to have been validly conceded by the Chief Constable.

103.  Thirdly, the Chief Constable contends that Mr Ashleys estate, on whose behalf the Ashleys are suing, has no interest in the bare question of whether his death was caused by unlawful battery. If the claim in battery can otherwise proceed, I agree with Lord Scott’s reasoning for rejecting that contention.

104.  Fourthly, there is the argument, principally pursued on behalf of PC Sherwood, as intervener, that to permit the battery claim to proceed would be to allow an impermissible collateral attack on his acquittal, or would infringe his rights under article 6 of the ECHR. Unlike in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, there would be no inconsistency with the acquittal if the battery claim succeeded. That is because of the higher standard of proof, and the absence of reasonableness as an ingredient of the belief justifying self-defence, in the criminal proceedings. Further, the determination of the battery claim in favour of the Ashleys would be “civil law consequences” of the shooting of Mr Ashley. As such they would not be precluded by article 6, as a result of the acquittal - see Y v Norway (2005) 41 EHRR 87, 102, para 41, quoted by Lord Rodger. However, I accept that PC Sherwood’s interests in this connection are relevant if the issue of whether to let the battery claim proceed rests on the court’s discretion.