Attrition warfare

Attrition warfare is a military strategy consisting of belligerent attempts to win a war by wearing down the enemy to the point of collapse through continuous losses in personnel and material. The war will usually be won by the side with greatest resources.

Unfortunately attrition warfare is often employed by Police forces when presented with a claim for damages. To compound matters, such a strategy is often, albeit inadvertently, aided and abetted by an underfunded County Court system which suffers from significant administrative delays. A claim that I have just settled against the Metropolitan Police exemplifies the strategy and delays that ordinary Claimants can expect to face.

I acted on behalf of Mr Dali who is a Project Manager in the Construction Industry.  On the afternoon of the 20 December 2012, plain clothed Police Officers attended at Mr Dali’s brother’s home address in North London.  Both Mr Dali and his brother were of exemplary character and had had no previous encounters with the Police.

At the time, Mr Dali’s brother was at work and no-one else was present at the premises.

Using an enforcer (‘the Rabbit’), one officer forced entry to the external porch door, shattering the pane of glass within the door.

At this point, Mr Dali’s niece had been driving past the house and observed a group of men trying to force entry and so contacted my client, her uncle, to advise as to what was happening.

Mr Dali’s niece collected my client from his home address which is close by and drove him to the house.  My client had a spare set of keys to the house and brought them with him.  En route, Mr Dali telephoned 999 to seek emergency assistance, of course unaware that the perpetrators were in fact Police Officers themselves.

Upon arrival at the premises, my client saw that the external door had been forced in and entry gained to the front porch.

Mr Dali ended his 999 call having been advised that a response unit would be sent.  He then spoke to a man standing outside and asked what was going on.

My client was asked who he was. My client advised that he was the brother of the owner of the premises, confirmed his personal details and that he had keys to the premises.  By this stage, Mr Dali had formed the impression that the men were Police Officers.  My client was asked to hand over the keys.  My client asked for proof that the men were Police Officers which was eventually provided.

My client asked as to why the Police were in attendance and he was advised that they had a Search Warrant. He asked to see it, during which time another of his brothers arrived on the scene.

The officers asked around for the Warrant which was eventually produced and shown to my client.  At this point, my client was directed to a senior officer, DS C who was said to be in charge.  My client was asked a series of questions including who he was, what was his relationship to the Occupier, whether his brother lived alone, whether he had any tenants, etc.

Whilst my client was speaking to DS C, his brother called and spoke to DS C. Whilst DS C was talking to the home owner, my client became aware that other officers were agitating to use the enforcer again so as to force the interior door of the premises to gain access.

My client stepped forward towards the premises (but again not into the porch) to advise the other officers that the officer in charge was speaking to the occupier and that further damage was not necessary.

My client then turned to face DS C and as he did so he then heard the sound of the enforcer being used and turned to see the front interior door opening having been forced.

My client stepped further forward (but not into the porch) and said that such action was uncalled for.  DS C approached having terminated his conversation with the occupier.  My client remonstrated with him as regards the conduct of his officers.  Other family members who had attended began to record events on a mobile phone.

On this recording, my client can be heard saying, “Got the keys, you didn’t allow me to use the keys, you smashed the door in”.  An officer can be heard making references to a Warrant, whereupon the premises alarm activates.

The recording further shows the following; facing the mobile phone and standing next to DS C, my client states, “I had the key to the door ……  this is the guy that I spoke to.  I had the key.  I’ve got the keys here to the house and what he said was, let me have a chat with him.  In the meantime, his Police Officers got aggressive…….”.

At this stage, DS C attempted to snatch the mobile phone and a scuffle broke out.  A male officer can be heard saying “I’ve had enough ……………..”  and the footage ends.

My client was then taken hold of by two officers and handcuffed to the rear.

DS C returned the mobile phone whereupon filming recommences.

My client is filmed saying that the officers had been “aggressive” and that he had “Just been arrested for no reason”.  My client is then searched.  At no point was my client advised that he was under arrest or why.

My client was subsequently transported to a local Police Station.  According to the Custody Record, his detention was authorised for “Obstructing Police”.

The circumstances of arrest were given as, “person detained deliberately obstructed officers who were attempting to carry out a search under a warrant.  He was warned of his actions but persisted in preventing the officers completing their search.”

Some 4 hours later, Mr Dali was interviewed during which he gave a full account.  Following review, it was decided to bail Mr. Dali for further investigation.  He was obliged to return to the Police Station 7 weeks later.

Upon re-attendance at the Police Station, Mr. Dali was charged with “Wilfully obstructing a constable in the execution of his duty” and bailed to attend his local Magistrates’ Court.  At his first appearance, he pleaded not guilty and the case was adjourned for trial.

Only a few days before the scheduled trial, the proceedings were formally discontinued by the Crown Prosecution Service, on the basis (quite correctly) that there was insufficient evidence to provide a realistic prospect of a conviction.

I was subsequently instructed by Mr Dali.  I identified that he had prospective claims for false imprisonment, assault and battery, trespass to land, trespass to goods/conversion, malicious prosecution and/or misfeasance in public office.

As is common, the Metropolitan Police in response to Mr. Dali’s civil claim adopted their preferred strategy of attrition warfare.

The employed strategy consists of a variety of tactics:

Don’t comply with the protocol

At the commencement of a claim, both parties are obliged to comply with the Civil Procedure Rules and in particular, the Pre Action Protocol.

The protocols outline the steps that parties should take to seek information  from, and to provide information to, each other prior to commencing Court proceedings.  The purpose of the protocols is to encourage early exchange of relevant information and early settlement without the need for litigation.

There is no specific protocol for Actions Against the Police but most practitioners adopt the Personal Injury Protocol.

The protocol usually commences when a letter of claim is sent. This will contain a summary of the facts, stating why the Defendant is liable and the nature and extent of the loss claimed.

In response, the Defendant is expected to acknowledge the letter of claim within 21 days and then within the next 3 months, respond and confirm if liability is admitted or denied.  If the Defendant denies liability, their version of events should be supplied and they should disclose documents in their possession material to the claim.

In Mr Dali’s case (after I had taken full instructions and gathered what documentation I could), a letter of claim was sent.  Notwithstanding the protocol, the Defendant failed to acknowledge the letter of claim within 21 days despite the letter having been received by the Met’s Legal Department. After several prompts, we finally received a written acknowledgement 2 months later in which the Defendant advised that they expected (per the Personal Injury protocol) to respond within 3 months.

Needless to say, the Defendant failed to confirm its liability position and/or provide disclosure within that time period.

Pre-issue a Defendant cannot be forced to confirm its liability position.  It can be forced to provide relevant (but not necessarily all) disclosure by an application to Court for Pre Action Disclosure.  No doubt mindful of that and following my threat to issue such an application, the Defendant provided some disclosure 6 months after the letter of claim was sent and 1 month after the Defendant said it would respond.  The Defendant did not, despite a number of reminders ever confirm its liability stance until after proceedings were issued. The net effect of these tactics is to keep the Claimant in the dark and make the expensive process of a  Court claim his only recourse (other than just abandoning the claim).  It is wholly contrary to the ‘cards on the table’ spirit of the Pre-Action Protocol.

Upon issue of Court proceedings deny liability

In the absence of any admission of liability or realistic offer of settlement, I was forced to issue court proceedings on behalf of Mr Dali and in response, the Defendant instructed Solicitors who filed a robust Defence, putting forward a very different factual account and denying liability. This denial was maintained to the very end of the case.

Take advantage of their greater financial resources

At an early stage of the proceedings, the parties are obliged to file a schedule of their incurred and predicted costs. Both parties anticipated that if this case proceeded to trial, the estimated length of hearing would be 7 days.

The general principle as regards costs in litigation is that the loser pays the winner’s costs. The Met Police asserted that it had a “strong defence” to this claim. Had it fought the case all the way to trial, the Defendant advised the Court that its total legal costs would be just under £32,000.

So if the Police continued to dispute liability and the case proceeded to trial and had my client lost at trial, he would have to pay the Defendant £32,000.

I was acting on behalf of my client by no win no fee agreement.  Although such an agreement covers my costs, it does not protect my client from adverse costs (i.e. the Defendant’s costs if he lost).  Further, my client had no insurance.

My client owns his own house and has some savings.  Had he lost, his savings and possibly his home were therefore at risk.

This threat to my client exposes the usual asymmetrical relationship between the parties; despite ever tighter pressures on public finances, the Police are much better resourced than a  Claimant. There is a significant disparity between a Police Force who can draw upon significant public funds to frustrate and defeat a claim and a Claimant, usually of modest means who will struggle to meet his own legal costs if he can’t find a Solicitor prepared to act by no win no fee agreement or be willing to expose himself to the possibility of substantial adverse costs should he discontinue mid-claim or lose at trial.

A Claimant is exposed in Court proceedings to potentially catastrophic personal economic consequences; the Police, whether intentionally or individually, simply aren’t.

Take advantage of the Court’s delay

Once the parties have filed a questionnaire about how they think the case should proceed, the court is expected to list the case for a Costs and Case Management hearing.

Upon filing questionnaires, Mr Dali had to wait nearly 6 months for the case to be listed. Half a year!

In reality certain steps could be taken to progress the case whilst the parties waited for the court to actively consider the case and set down a trial timetable.

But such delay is music to the Defendant’s ears. The longer the case drags on, the more fed up your average Claimant will become, and more amenable to a lower settlement or so despondent at the delays and frustrations of the process, that he/she will simply give up so as to move on with their life.  For that reason, the Met refused to engage in activities that could progress the case claiming that no action should be taken until directed by the court (which is simply untrue).

Put forward a trickle of low ball offers of settlement

Notwithstanding the Defendant’s initial failure to either admit or deny liability until court proceedings were issued and the Defendant’s robust denial of liability thereafter, the Defendant put forward a trickle of low ball offers, starting with £2,000.  A year later, the Defendant offered £3,500,  stated to be their “final offer”.

Mr Dali had been arrested and detained for 10 hours. Whilst detained, his home had apparently been searched.  Upon release, he was advised that his mobile phone would be retained as evidence.  He was ultimately prosecuted over a 5 month period. Shortly before trial, he was advised that the CPS had discontinued proceedings. Subject to establishing liability, Mr Dali was entitled to substantial damages.

Following the issue of court proceedings and notwithstanding that the Defendant had a “strong defence”, the Defendant made further offers of settlement, first £8,000, then 4 months later £9,100.  On my advice, these offers were rejected as were subsequent offers of £15,000 5 months later and £20,000 8 months later. Such offers were made pursuant to Part 36 of the CPR.  Part 36 offers are a powerful weapon in a Defendant’s Solicitors’ armoury.  If a Claimant rejects an offer and then does not beat that offer at trial, the court will impose severe cost penalties on the Claimant such that if for example Mr Dali had rejected this last offer of £20,000 but at trial, won and only recovered for example £17,500, he would almost certainly have forfeited most if not all of the damages awarded such that he would have achieved only a ‘pyrrhic victory’.

The court expects negotiation to be a two-way street and mindful of the risks of litigation and the ordeal of a 7 day trial at Central London County Court Mr Dali authorised me to put forward an offer on his behalf to settle his claim for £28,000. Belatedly (what else), the Defendant ultimately accepted my client’s offer just 1 month before the trial window opened. In addition, an Inspector of the Met’s Civil Actions Investigation Unit wrote to my client to apologise.

Faced with such tactics, only the strongest willed Claimants supported by the very best Solicitors will continue to fight for justice & for everything this entails. I believe that police forces continue to employ such a strategy quite deliberately because by doing so, they put off (or indeed ‘buy off’ cheaply) sufficient numbers of claims presented by weak and experienced solicitors, for the strategy in their eyes to be successful. What they fail to appreciate is that they harm themselves in the process causing yet more damage to  their reputation as public servants and the confidence that society has in them.

Furthermore, such tactics will not work, and indeed will ‘backfire’ ultimately costing them far more financially when they are up against a solicitor who understands what their game is and how to beat it as I am proud to say the clients who I’ve represented will be able to tell you.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.