The Supreme Court Costs Office
No.32 of 2004
Fleming v Chief Constable of Sussex Police
4 May 2004
Court of Appeal (Potter, Mance and Jacob LJJ)
Following the relatively minor incident at Gatwick Airport on 6 January 1999 the claimant was charged with assault on police officers, but the CPS decided not to proceed with the charges. Accordingly the claimant brought proceedings for: (1) wrongful arrest, assault and false imprisonment; (2) malicious prosecution on the grounds that the circumstances which the police said led to his arrest were fabricated as the police were well aware; and (3) misfeasance in public office in that the DNA samples which were taken from him were not destroyed on dismissal of the prosecution as the claimant had been told they would be, but, only 15 months later, when they were deleted from the police national database.
At the trial, which was held with a jury in the County Court, the claimant was awarded £5,025 in 2003, together with all his costs, save for the costs of the misfeasance issue, which was part of the original claim but later struck out by consent prior to trial.
In his judgment in costs the Judge in the County Court made it clear where his sympathies lay, part of his judgment reading:
'18.The jury thought their conduct deserved Aggravated Damages. That is significant. Probably the court, and certainly they, would think justice ill served if [the Claimant] did not receive that money, if they had known what I do of the police conduct of the case as a whole, so admirably laid out for me by both counsel. He can only receive the damages the jury thought he deserved if the police pay his full costs. They always knew that. They refused to compromise. My problem is essentially that, had the police appreciated all the matters I have outlined not excluding the last they would have realised that, should aggravated damages be awarded, particularly for what was the effect of a perjured arrest, the court would be more anxious to see that the claimant received at least a substantial part of his compensation, rather than balancing somewhat tactical issues whether as to costs or otherwise, and whether under Part 44.3 or not.'
The defendant appealed the costs order seeking either an order that there should be no order as to costs, or, as an alternative, that the defendant should pay a maximum of 50% of the claimant's costs, with the claimant paying the defendant's costs of the issue of misfeasance and of the defendant's application to strike out his reply. In particular they suggested that the Judge misdirected himself when he held it was desirable to preserve intact for the claimant, a legally aided litigant, the amount of damages awarded by the jury, and not to reduce them by the impact of an adverse costs order of the kind sought by the defendant.
The Court of Appeal considered that the Judge had been overly influenced by the practice in family cases, and ought not to have based his decision on what is quoted above.
Having considered the post CPR cases the court concluded as follows:
'38. In my view, the jury's view should not have been taken into account in that way. It is certainly no part of the criteria laid down in CPR 44.3. That being so, it is open to this court to review the matter and apply its own discretion based on the submissions of the parties.
39.Despite what I have said, I do not consider that we should disturb the decision of the Judge. It is time that the Judge accepted that the claimant had failed on the issue of false imprisonment because there were in fact grounds for his arrest for a public order offence; also that there were a number of respects in which he had exaggerated the actions of the police. However the Judge also stated in his clear view that, applying the overall objective to the whole case, it struck him forcibly that the officers were too prompt falsely to accuse and, in consequence, falsely to arrest, the claimant as someone who they thought might be at the airport for no good reason. The Judge also took into account what appeared to him to have been perjury on the part of the police.'
Having considered all the issues upon which the defendants sought costs the court came to the conclusion, as indicated above, that, even though there was a misdirection by the Judge below, this was not a case where it would be appropriate to interfere with his discretion on costs, and accordingly dismissed the appeal.