This is a guest post by my colleague John Hagan, solicitor and fellow specialist in civil actions against the police.
In order to ensure a fair and efficient litigation process, and to increase the prospects of an early settlement, the Civil Procedure Rules (CPR) which govern the Courts of England and Wales, lay a heavy emphasis on a ‘cards on the table’ approach to the disclosure and sharing of evidence between parties involved in a legal dispute.
Indeed, the duty to provide the other party with relevant documentary evidence arises even before Court proceedings have been commenced.
The Practice Direction on Pre-action Conduct provides that each party, the Claimant and the Defendant, should set out concise summaries of their case to one another in correspondence and disclose “key documents relevant to the issues in dispute”, whilst the Pre-action Personal Injury protocol specifically requires that the Defendant provide with its letter of response “documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings.” (And no charge must be made for the provision of copies of those documents)
The duty of disclosure on the parties increases further once Court proceedings have been commenced and generally the first Case Management step that will be ordered by the Court will be for the parties to carry out a search for relevant documents (documents in this sense also including audio and video recordings, as well as written records, of course) and then to provide the other party with a list of all relevant material in relation to the case that is not subject to legal professional privilege (i.e. communications between solicitor and client).
The parties are certainly not allowed to pick and chose what goes in the list simply to suit their case. The requirements for standard disclosure are laid down by CPR Part 31 as follows –
Standard disclosure – what documents are to be disclosed
31.6 Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.
Duty of search
31.7
(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).
(2) The factors relevant in deciding the reasonableness of a search include the following –
(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search.
(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
This duty of disclosure extends not only to documents which are physically in the possession of the party or their solicitor, but also those documents which are held by third parties but which the Claimant or Defendant has a right to obtain (such as, for example, medical records held by a person’s GP, or financial records held by their accountant).
Thus, the duty of disclosure is defined as extending to documents which are in a party’s “possession or control”.
Disclosure is therefore a crucial phase in any Court case, and without proper compliance by the parties with the rules governing disclosure, a fair trial is ultimately not possible – just as the chance of an ‘out of Court’ settlement recedes if parties are kept in the dark about crucial evidence.
Sadly, experience has taught me that, despite the considerable resources at their disposal, the Defendants in most of the cases which I handle – our country’s regional Police Forces – are frequently poor at providing full and frank disclosure of evidence in civil cases. Considering the technologies and methodologies which the Police have available to them as law enforcement agencies, we are bound to consider whether inadequate disclosure on their part is as a result of laziness, incompetence or, – more cynically – is designed as a spoiling or delaying tactic in the litigation.
Thankfully, however, there are mechanisms available by which Claimant lawyers can hold the big Policing institutions to account when it comes to breaches, or apparent breaches, of their disclosure obligations and in this two-part blog post I am going to give some examples of how this works in practice.
- CPR 31.16 Pre-action Disclosure Applications.
- CPR 18.1 Requests for Further Information.
- CPR 31.12 ‘Specific Disclosure’ Applications
In this week’s blog I will address the first two methods.
Pre-Action Disclosure – Vanishing video footage & Missing Dog Bite Reports
In one claim against West Midlands Police, brought on behalf of an innocent student who had a Police dog set upon him, I found the Police denial of liability was inadequately accompanied by relevant documents – in particular, they had only released the body camera footage filmed by one of the many officers involved in the incident and they had not provided all of the training records, operational licence forms of dog bite reports for the animal in question.
After the Police lawyers failed to hand over this material voluntarily, I issued a pre-action application to the Court i.e a stand-alone application prior to the commencement of full blown proceedings, limited in its scope to obtaining the missing evidence.
My application was successful, and the Chief Constable was ordered to provide all of the Police dog’s relevant records, along with photographs which officers had taken of my client’s injuries. During the application process, the Police also formally confirmed that all body camera footage other than that which had been disclosed had already been deleted; which at least allowed us to rule out the possibility of being ‘surprised’ by unexpected footage later in the proceedings. Finally, West Midlands Police also had to pay my client’s legal costs incurred in bringing the application, a measure of the Court’s disapproval of their conduct.
On the back of obtaining that evidence I was able to draft and issue a comprehensive Court claim against West Midlands Police, in response to which they filed a defence reversing their pre-action position and now admitting that my client had been wrongfully detained.
A Request for Further Information Reveals ‘Incriminating’ Emails
Another case which I am currently handling involves Norfolk Constabulary and the Ministry of Justice (MOJ) itself (on behalf of the Magistrates Court). In this case my client was wrongly arrested for alleged breach of a bail condition which in fact had been rescinded at a Court hearing several weeks previously. The Police and the MOJ filed Defences effectively blaming one another for the mistake; the MOJ claimed that its staff had correctly updated the Police as to the removal of my client’s bail conditions (albeit after a delay, but prior to the day she was arrested), whilst Police denied all knowledge of this and asserted that accordingly their Officers had carried out a legitimate arrest based on the information available to them on the Police National Computer (PNC). Clearly their contradictory positions did not add up, and, after receiving their respective Defences, I therefore raised a series of Requests for Further Information under Part 18 of the Civil Procedure Rules, which provides as follows- .
Obtaining further information
18.1
(1) The court may at any time order a party to –
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case.
The purpose of my questions was to closely interrogate the positions which were being adopted by each of the Defendants, because the documentary evidence they had disclosed to date did not fully substantiate either of their positions and it seemed to my client and I that each Defendant was only telling the parts of the story that served their purpose.
I am pleased to confirm that in response to my formal requests, the Police handed over a series of previously unadmitted emails which revealed that senior Police Officers were aware that my client’s bail conditions had been lifted – but that they had failed to properly communicate this to their colleagues and, specifically, failed to update the PNC prior to the day my client was arrested.
Accordingly, Norfolk Constabulary have now held their hands up and admitted liability for my client’s loss of liberty.
Had the Police properly complied with their pre-action duty of disclosure, however, then the need to involve the Ministry of Justice in these proceedings would probably have been avoided – whereas now Norfolk Constabulary will need to pay not only my client’s legal costs in bringing this claim, but also those incurred by the Government Legal Department on behalf of the MOJ.
The questions which I raised under the Part 18 procedure were thorough and meticulous – but the simple fact is that the Police lawyers should have been raising them of their own client long before I had to prompt them to do so; the shape of the ‘missing pieces’ in the evidential jigsaw puzzle of this case where there to be seen, had they bothered to look.
Next week, in the concluding part of this blog post, I will explain how the rules governing ‘Specific Disclosure’ were brought to bear against a Police Force which had failed to conduct a thorough search of its records, apparently so that it could advance a defence based on the absence of sufficient evidence…
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