When is it too late to claim against the police? (Part 2)

In my last post, I explained that there are strict time limits in which an individual can bring a claim.

I explained that of relevance to Police claims, the limitation period for claims for false imprisonment, assault and/or battery, trespass, malicious prosecution and/or misfeasance in public office is 6 years, or 3 years if personal injury is claimed (unless the Claimant is a child or a patient being treated under the Mental Health Act 1983).

Although the general limitation of 6 years is set in stone, if the Claimant pursues a claim for personal injury, section 33 of Limitation Act 1980 allows for an extension of the three-year time limit in circumstances where the court considers it equitable, having regard to the degree to which the Claimant is or would be prejudiced and the degree to which the Defendant would be prejudiced. In determining whether to disapply the limitation period, the court must have regard to all of the circumstances of the case and in particular to the length of and reasons for the delay, the extent to which the evidence adduced or likely to be adduced is or is likely to be less cogent, the conduct of the Defendant after the cause of action arose, including the extent to which the Defendant responded to requests reasonably made by the Claimant for information or disclosure relevant to the cause of action, the duration of any disability of the Claimant arising after the date of the accrual of the cause of action, the extent to which the Claimant acted promptly and reasonably once he knew that the act or omission of the Defendant might be capable of giving rise to a cause of action and the steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any advice received. In summary, we might call this a ‘common sense’ get- out clause, designed to operate in the interest of fairness.

Limitation operates as a defence to proceedings, not an absolute bar.  Therefore, if the Defendant failed to plead a limitation defence, limitation would not be an issue in the proceedings between the Claimant and the Defendant.  However, as I’ve pointed out elsewhere in my blog, Police Defence Lawyers will usually take any point available to them so rest assured, if there’s an issue to raise, the Police will raise it.

A case in point is that of my client Charles Quichaud. Back in August 2009, Charles, then aged 19 and a French national, came to visit his brother who was then living and working in London.

Charles stayed for 3 weeks, hanging out with his brother and sightseeing in the city. On the day before he was due to return home, Charles met up with some friends.  They gathered in the park at Hoxton Square where they chatted and relaxed on the grass and benches for a few hours. There were no public toilets nearby, so Charles and his friends would discretely use the bushes to urinate. Unfortunately, Charles was spotted by two passing police officers. The Officers approached him. He was afraid and fled to a nearby bar where PC Caulfield followed him for a short time. He managed to evade the officer but when he later returned to the park, the officers were waiting. Fearing the worst, he began running to the park exit. PC Caulfield chased him down a dead end, forced him to the ground, and rained kicks and blows to his face and head. Charles did not fight back and tried to protect himself in the foetal position.

The attacking police officer broke Charles’ nose in the assault, left him with cuts around his right eye, and bruises to his face and body. The officer was uninjured.

Charles was handcuffed, but not formally arrested, and taken by ambulance to University College Hospital, where doctors diagnosed the fracture, stitched and glued his eye injury, and dressed his wounds.

The following day Charles went to Shoreditch Police Station where he was issued with a Fixed Penalty Notice for breaching Section 5 of the Public Order Act (1986).

While waiting at the Station, Charles says that he overheard a Sergeant advise the officer who assaulted him to “just cover your arse”. The arresting officer then completed an Evidence and Actions Book with a false account of the incident, which was not date stamped as required under standard procedure.

PC Caulfield’s female colleague was accused of writing a false account in which she claimed that a group of women ‘complained about the male who was urinating’.

Charles’ brother paid the Fixed Penalty Notice on his behalf, leaving Charles with a criminal record.

Charles returned home to France where he had an operation to repair the fracture on his nose. Unfortunately, the surgery was only partially successful in that Charles’ nose remained deviated to the left causing difficulties breathing. He was also left with facial scars and understandable low mood as a result of both the incident and his altered appearance.

A concerned member of the public reported the incident to the IPCC who took the unusual step of handling the investigation themselves. The IPCC investigators were unimpressed  with the officers’ accounts and found that both officers had a case to answer for gross misconduct. First however, the IPCC passed the case to the CPS who decided to prosecute PC Caulfield for assault occasioning actual bodily harm. PC Caulfield pleaded not guilty, claiming that he acted in self defence. The case proceeded to trial in June 2011 at which time the jury failed to reach a verdict. PC Caulfield then faced a re-trial in November 2011 at which he was acquitted. Misconduct proceedings were then brought against PC Caulfield and at the subsequent tribunal hearing held in February 2013, PC Caulfield was sacked for using “unnecessary, disproportionate and unreasonable” force when arresting Charles and recording a “false, misleading and inaccurate” account of the incident in his notebook. PC Caulfield’s female colleague was issued with a written warning.

Throughout this saga, Charles cooperated with the IPCC, the CPS and the Metropolitan Police.

Charles was advised by the IPCC caseworker to pursue a claim for compensation.  Charles initially consulted the Criminal Defence Solicitors who had advised him at the Police Station the day after his arrest. They had an ‘Actions against the Police’ Department and referred the case. By this time, Charles was back in London and working as a waiter. Although he was on a low income, his wage varied because of tips. His solicitors advised that he apply for Legal Aid but he soon found that both they and the Legal Aid Agency put unnecessary obstacles in his path when in reality, they should have just got on with his case. In October 2013, 14 months after the 3 year limitation period had expired, Charles contacted me following an internet search which had led him to my blog; he was impressed with my experience and proactive approach to claims like his.

On the basis of his instructions, I was satisfied that he had a claim for assault and battery, false imprisonment and misfeasance in public office including a claim for personal injury caused thereby and that prospects were good.  But although his claims for false imprisonment and misfeasance in public office were still in time (6 years), his claim for personal injury (3 years) was not. In fact, he was nearly 1 ½ years out of time.

In this situation, the best course of action is to issue immediately and so, within a few days of instruction, I issued protective court proceedings on behalf of Charles.

At this time, I had the IPCC investigation report and a series of online news reports about his case only. This was enough to identify the key issues and draft and submit a letter of claim.

The Metropolitan Police adopted their standard litigation tactics;

First, they ignored their obligations to respond to the claim within the protocol period set by the Civil Procedure Rules. In the circumstances, I was obliged to force the issue and serve court proceedings.

Second, they denied liability. They filed an Acknowledgement of Service and confirmed that they intended to defend “all of this claim”. They followed this with their “Defence”, a bare denial of liability of each head of claim save this;

The Claimant’s claim for assault causing personal injury is subject to a 3 year limitation period pursuant to section 11 of the Limitation Act 1980.  The limitation period in respect of the assault claim expired on the 27 August 2012.  The Claim Form in this action was issued on the 1 November 2013, approximately 14 months out of time.  Accordingly, the Claimant’s claim for assault and personal injury should be struck out on limitation grounds”.

In the absence of settlement, a Court would have to make a determination as to whether to disapply the limitation period in respect of the claim for personal injuries.

I was convinced that the court would exercise its discretion pursuant to Section 33 of the Limitation Act 1980 for the following reasons;

  1. The length of delay was 14 months. Charles was a naive young man and a French national.  He had lodged a complaint himself, and he had fully cooperated with the Defendant, the IPCC and CPS in their investigations and the prosecution and misconduct proceedings.
  1. The Defendant had not been significantly prejudiced by the delay, particularly given that the incident had been the subject of an extensive investigation by the IPCC who had submitted a report in April 2010 and all evidence had been preserved.
  1. There was no reason to believe that the evidence available was likely to be less cogent.
  1. The evidence relevant to the assault/battery claim would be very substantially the same evidence to be heard in the claim for false imprisonment and misfeasance. In the circumstances, there would be no detriment in permitting the claim for assault/battery to proceed: the case would proceed to trial anyway given that the other torts under which the Claimant claimed, were governed by a 6 year limitation period.
  1. The issues in the proposed claim for assault/battery involved alleged abuse of power by a public authority. Such issues were of legitimate public concern as highlighted by the second criminal trial and the Misconduct hearing.
  1. Applying the decision of  Smith LJ in Cain v Francis, it would  undoubtedly have been “fair and just in all the circumstances” to allow the claim to proceed to be defended on the merits.

Notwithstanding their denial of liability, the Metropolitan Police quickly made it clear (and understandably so) that this was a case that they wanted to settle albeit on a without prejudice basis.  Following extensive negotiations, I am pleased to report that Charles’ claim settled for a substantial award of damages. However had settlement not been achieved, I am satisfied that the court would have agreed to disapply the limitation defence in respect of the personal injury claim.

Another case in which the Police raised a Limitation defence against one of my clients, was that of Hayley Cunningham v the British Transport Police – a case about which I have previously blogged here.

As I explained in that blog, Hayley was subjected to considerable mental stress and pressure as a result of her unlawful incarceration and the prosecution which was wrongly brought against her and which went all the way to Trial at the Magistrates Court before being dismissed. The effect which this had upon a hard working Mum and dedicated educational professional, with absolutely no previous experience of the custodial and criminal justice system can well be imagined.

Suffering from Post Traumatic Stress Disorder, Hayley was simply unable to contemplate dealing with the claim for a long stretch of time, and therefore did not give me instructions to commence County Court proceedings against the British Transport Police until after the 3 year limitation period for her injury claim had expired. The lawyers acting for BTP sought to take advantage of this (of course) by arguing that Hayley’s claim for physical and psychological injuries was ‘time barred’. I very strongly felt that this was an unjust and cynical move on their part given that it was the emotional impact of the wrongful arrest and prosecution, coupled with BTP’s biased internal investigation and rejection of her (legitimate) complaint, which had left Hayley in this state.

As Baroness Hale observed in the case of A v Hoare [2008] 1 A.C 844 (paragraph 60) the Court must in cases such as this seek to prevent “injustice to a Claimant who may be deprived of his claim…as a result of the very injuries which gave rise to it”.

Another good reason for overturning the limitation bar, as highlighted in the case of Cain v Francis [2008] EWCA Civ 1451 by Smith LJ (at paragraph 74), and certainly applicable to Hayley’s case (as well as that of Charles Quichard) was that “the Defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence”.

In both Hayley Cunningham and Charles Quichard’s cases, the respective Defendants – BTP and the Met – had available to them contemporaneous statements and all the other documentary evidence (including CCTV footage in Hayley’s case) accumulated as a result of the criminal prosecution and/or lengthy internal investigation processes. Neither claim came ‘out of the blue’; in neither case was crucial evidence likely to have been lost or distorted by the passage of time.

Accordingly, on receipt of the Defence to Hayley’s claim I promptly issued an application to Court for permission to proceed with her personal injury claim, pursuant to Section 33 of the Limitation Act. My arguments clearly persuaded the Police, as (despite going on to fight Hayley’s overall claim all the way to a fiercely contested Trial) they conceded my application and (quite rightly) dropped the ‘Limitation’ aspect of their defence prior to the Court hearing taking place.

The lesson to take from this is that whilst it is very important to seek legal advice as soon as possible after you have suffered a wrong-doing at the hands of the Police, all is not lost if you have in fact exceeded the 3 year time limit, particularly if there are good reasons for your delay in bringing a claim and/or evidence that the Police Force as an organisation is aware of the circumstances of the wrong-doing against you and has investigated and gathered evidence in relation to it.

The 3 year personal injury limitation date is potentially a very serious obstacle to a claim – but with the right advice and representation, it can be overcome.

 

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.