What price an admission of liability in a claim for wrongful arrest?
Upon initial instructions, clients will almost always tell me that their priority is
- to secure justice
- for the police to admit wrongdoing, to apologise and/or
- admit liability.
Financial compensation is a secondary consideration.
The sad reality is that despite, or perhaps because of, their status as a public body, the police are very defensive when accused of knowingly acting outside their powers, and highly reluctant to admit ‘in black and white’ that they have done so. In this respect, Police Forces are aided by the Civil Procedure Rules which as a general rule operate under the assumption that civil claims are all about financial compensation and therefore if the Defendant offers enough, a Defendant can “buy off” a claim without admitting liability, or having their actions scrutinised in the light of day at trial.
The Court has however, on certain occasions, recognised that the purpose and aim of civil justice is not always met by the simple payment of compensation and that sometimes a financial settlement alone does not provide a Claimant with the vindication he/she seeks.
I am currently acting on behalf of a woman who is bringing a claim against her local Police Force.
Julie was arrested in 2015. At this time, Julie was struggling to cope with the behaviour of her 15 year old son Kieron who was prone to violent outbursts. She contacted the Police on a number of occasions to report these concerns and asked for assistance from the Police/Social Services.
On a day in March, there was a further incident between Julie and her son, when Julie returned home to establish that Kieron had damaged her bedroom door. Julie asked Kieron why he had caused the damage. In response, Kieron told Julie to “fuck off” and immediately stormed out of the house. When Kieron did not return, Julie contacted the Police to report events and subsequently received a telephone message from a Police Sergeant confirming that Police were looking for Kieron.
Throughout the night, Julie was understandably worried about her son’s welfare and contacted the Police again the next morning for any update. Julie thought it was best that she and her daughter try to continue as normally as possible, and accordingly she got herself and her daughter ready and accompanied her daughter to school. At school, Julie then saw a teacher at the school gate and advised that Kieron was missing.
Later that morning, Julie telephoned her children’s school and was informed that Kieron had attended.
Subsequently Julie’s daughter telephoned Julie in distress, so Julie attended the school to establish what was happening. Upon arrival, Julie saw and comforted her daughter, and was then asked to speak to two police officers in private. She was told that Kieron had been out all night. Julie explained what had happened and that she had notified the Police of this. One Officer advised that the Police had no record of her calling. Julie confirmed that she had and that in response, she had received a voicemail from an Officer and that she could play back the message. However the Officers present were not interested and declined to listen to the message.
One Officer radioed through and again it was suggested that there was no record of Julie having reported Kieron missing. Again, Julie disputed this and again made reference to the message on her phone. However at 12.40, whilst still on the school premises, Julie was arrested on suspicion of child neglect. Julie was transported to the local Police Station where her detention was authorised.
Julie is a person of good character having had no previous adverse dealings with the police. Given the circumstances that were unfolding, Julie was understandably “upset and emotional” as recorded in the Custody Record.
Julie was processed, searched and then detained in a cell.
Two and a half hours later whilst in her police cell, Julie was informed that no further action was to be taken and she was to be released. Julie was informed that her son would hereafter be accommodated by Social Services and her daughter would be returned to her.
Julie was advised that her call reporting Kieron missing had been inaccurately logged but had now been correctly located.
Upon her release from police custody at 16.05, Julie was again recorded to be “quite emotional” and transport home was arranged.
Julie was traumatised by the allegation and her arrest. She considered herself to be a devoted mother who was dedicated to, and lived for, her children who were always loved and well cared for.
She stated that she was always amongst the first five parents at the school gate, waiting to collect her children at the end of the school day; she had often helped out on school trips when her children were younger; and she had been a parent helper at swimming classes, at school fitness events, and with reading. She always attended parents’ evenings and school awards ceremonies, and was very proud of her children’s achievements. She was emphatic that she was never neglectful, she had always “made a constant effort”.
She reported that in or around 2014 the behaviour of her eldest child, Kieron became problematic; he was around the age of 15 at the time. Initially she put this down to “teenage rubbish” and hoped that Kieron would grow out of it. She described him as being destructive to their home, treating her disrespectfully, and being violent towards her. She had taken her son to the GP, who referred him to Child and Adolescent Mental Health Services (CAHMS), and she had spoken to his school about her concerns that he may have Asperger’s or some other condition.
My client found her arrest to be publicly humiliating and felt that the record of her arrest would taint her character and employment prospects.
Following review, I decided to take on Julie’s case. The Police failed to respond to an initial letter of claim, and so it was necessary both to issue and serve Court proceedings. In response, the Police then filed a Defence denying liability.
Notwithstanding the terms of the Defence, the Police subsequently put forward a financial offer pursuant to CPR Part 36 to settle the claim. By reason of the terms of Part 36, the Claimant must obtain a judgment more advantageous than the stated offer otherwise they will be penalised in legal costs.
The Police’s offer reflected a reasonable valuation of the claim but here, the Claimant’s main objective was not financial compensation but rather securing an admission of liability and deletion of all records pertaining to her arrest.
In the circumstances, and notwithstanding the significant risks of an adverse cost order, but with my blessing, the Police’s offer was rejected. In turn my client, on my advice, put forward a counter offer, £500 lower than the Police offer on condition that the Police admitted liability – such that if accepted, the Defendant, a public body, would pay out less money …… surely an attractive option to any cash strapped Police Force in these difficult times?
In response, the Police rejected my client’s counter offer and put forward a revised offer to settle, £1,000 higher than our offer but again without admission of liability, i.e. yet more money but with no acceptance of responsibility.
Once again, my client wishes to reject the Police’s offer, and I am willing to back her, but the present scenario starkly highlights the risk my client is taking over exposure to adverse costs (and therefore potentially walking away with a “pyrrhic victory” and a costs order against her). However, she is willing to take that risk because the principle of the Police admitting they were at fault is more important to her than pounds and pence.
If the status quo remains, the case proceeds to trial and the Claimant establishes liability, ‘beats’ her own offer, but fails to beat the Defendant’s offer, I am optimistic that the Court will not penalise my client. Why? The reason is that had my client accepted either of the Police’s offers, the real issue would still have been outstanding and my client would not have established that her arrest was unlawful and thereby restored her reputation. That is the real purpose of this litigation. My view is supported by the recent High Court decision of MR V Commissioner of Police for the Metropolis (2019) which cited with approval, the House of Lords decision of Ashley v Chief Constable of Sussex (2008); in essence that the remedies provided by the law of tort are not limited to obtaining of financial compensation.
In the MR case, (which, like Julie’s case was essentially a claim for unlawful arrest), it was held on appeal that the Claimant should be able to recover his legal costs despite not beating the Defendant’s offer of £4,000 at Trial (the Claimant was in fact awarded damages of only £2,750). The reason for this decision was that the Claimant had prior to Trial made an offer to settle for no damages, but an admission of liability and reasonable costs. On appeal, Mrs Justice McGowan found the Claimant’s offer to be a genuine and significant concession.
Decisions such as that in MR give me encouragement that the Judiciary increasingly understands that money does not always make the world go round, and that particularly in claims against the Police an admission, or finding, of liability (which is, in effect, a declaration that the Claimant was unlawfully arrested) is often worth far more than a four or even five figure damages sum.
However, it will take brave Claimants such as Julie, and lawyers who are prepared to back them, to firmly establish this as a principle of law, by not being bought off by monetary offers with no admission of wrongdoing attached. In other words, don’t let the Police give you ‘zero’ answer on liability, or ‘zero’ apology, by buying you off with more ‘zeros’.