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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown v Sussex Chief Constable [2001] EWCA Civ 15 (12 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/15.html Cite as: [2001] EWCA Civ 15

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)

		Royal Courts of Justice Strand London WC2 Friday, 12th January 2001

Friday, 12th January 2001

1. LORD JUSTICE SCHIEMANN: Mr Brown appears in person before me seeking to appeal an order made on 19th November 1999 by His Honour Judge Kennedy, QC, who on that day dismissed Mr Brown's appeal against two orders of District Judge Lay. The first of these orders was an order of 12th August 1999 refusing the transfer of an action back to the Central London County Court; and the second was an order of 25th August 1999 refusing to reinstate Mr Brown's claim, the position being that that claim had been struck out on 22nd June 1998 for disclosing no cause of action.
2. Mr Brown did not attend the hearing before His Honour Judge Kennedy but the judge gave reserved reasons some time after the date listed for the hearing. The reasons for the delay are that the judge had taken infinite care in a 71-paragraph judgment in setting out his reasoning process which led him to the conclusion in paragraph 71 that these proceedings must stop.
3. The background to the matter is this. Mr Brown was involved in a dispute at one stage in 1990 and 1991 against his erstwhile landlord, a Mr Mojzesz. He, Mr Brown, claimed that Mr Mojzesz had fraudulently attempted to obtain some £200,000 worth, I think, of insurance money by arson on 29th December 1990, and Mr Brown had thwarted this. Thereafter, Mrs Mojzesz gave Mr Brown some notice to leave the tenancy. He did not leave and there was then an assault on Mr Brown by Mr Mojzesz. The constable who attended took no action. Mr Brown was again assaulted a couple of days later and again no action was taken. He claims that he captured all three incidents, I think on tape, placed them before the police, but again they took no action. He claims that the police colluded with Mr Mojzesz to take no action. In essence his claim is that something horrible has happened to him. He did not, however, issue the proceedings with which I am concerned until almost six years later, namely, on 14th February 1997, when he issued them in the Central London County Court claiming damages from the Sussex police on the basis of a variety of causes of actions, principally negligence, in that Sussex police had ignored all the matters which I have mentioned, despite what he alleges was clear evidence. Those original particulars were unclear.
4. On 17th June 1997 the defendants brought before District Judge Wigfield in the Central London County Court an application to strike out Mr Brown's particulars. The district judge refused to do so but transferred the proceedings to the Brighton County Court. It is, of course, very usual on a first application to strike something out, particularly when the particulars have been framed by a litigant in person. Judges often give him a chance to reformulate his particulars in a clearer way so that the points that he wishes to make bear some relation to the legal framework. Indeed Mr Brown took the opportunity of trying to do that. He improved and amended his original particulars and eventually claimed exemplary damages of up to £50,000, as he put it, as required by European law. He wanted damages, or replacement for property stolen or destroyed by the police's negligence, including damage to his car; and damages for stress caused by the theft of his trunk from his car. The police denied all the material issues and alleged that no tape had been played to them; that they had not colluded with Mr Mojzesz and they had investigated things as they should have done. Moreover, they said that the claim was time-barred and there was no breach of any duty. That was the broad position on the pleadings at the end of 1997.
5. There then followed interlocutory applications culminating in a hearing on 2nd October 1997 which Mr Brown attended, after which District Judge James ordered the filing of further and better particulars by Mr Brown, and subsequently the filing of new evidence by Sussex. It seems that Sussex applied once more to strike out Mr Brown's claim. That hearing to strike out started on 10th February 1998 and Mr Brown attended, according to His Honour Judge Kennedy, without demur on that day but the hearing was delayed.
6. On 22nd June 1998 District Judge Fawcett struck out Mr Brown's case for being statute barred in part, and disclosing no cause of action. Mr Brown did not attend in front of District Judge Fawcett. He turned up three hours late and claimed that he had been misled as to the time of the application. That was on 22nd June 1998. It was not until a year later, on 3rd June 1999, that Mr Brown applied to set aside District Judge Fawcett's order of 22nd June 1998. The substance of the point then made by him, I think, was that the London district judge had got it right, and the other district judges had no business to, in effect, overrule him. That to a degree misunderstands the situation, because, as I said, it is quite common for matters to be looked at again when somebody has had a chance of re-framing his pleadings. However, for reasons which we can understand Mr Brown decided that he would prefer to go back to the Central London County Court, and he applied for the matter to be transferred back there because he had in the meanwhile moved to London.
7. On 12th August 1999 District Judge Lay refused that application to transfer. Shortly thereafter, on 23rd August 1999, Mr Brown applied to set aside the district judge's order of 12th August and to have the case transferred to the Central London County Court. He argued that he had safety fears and that the judge refused to pay attention to them and refused to listen to them.
8. On 25th August 1999 District Judge Lay considered (with neither party attending) Mr Brown's application of 3rd June 1999 to set aside District Judge Fawcett's order of 22nd June 1998. District Judge Lay dismissed Mr Brown's application but noted that there was a right to apply to set aside the order within seven days and seek oral reconsideration.
9. On 31st August 1999 Mr Brown did apply to set aside the district judge's order of 25th August 1999. This time, however, not by way of oral reconsideration, but by way of appeal. The matter came before His Honour Judge Kennedy, QC, on 19th November 1999. That judge in, as I say, a long judgment which carefully sets out the history of the matter as he saw it, pointed out that Mr Brown had come to the court in the past, and he, the judge, saw no force in the points that Mr Brown sought to make. There is no advantage in my setting out the careful reasoning of the judge, but it is important to realise that the judge said at the end that he had regard to the overriding objectives of the Civil Procedure Rules which obliged the court to deal with a case justly, which includes, as far as is possible, a saving of expense, dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party, and ensuring - and this is important - that it is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. The judge, having carefully looked at the matter as far as he saw it, and in the absence of Mr Brown, said that Mr Brown was abusing the rights that he claims, which are to a fair and swift trial in the proper court, on the right issues, of the allegations he makes before the evidence that either supports or defeats them has become so stale as to make a trial impossible. The judge said this at the end of 1999 in relation to complaints which in substance relate to 1990 and 1991. So the judge refused to allow the appeal.
10. Mr Brown seeks leave to appeal to this court. It is thus a second appeal, the matter having first been dealt with by a district court judge then a county court judge. Mr Brown has now put before the court evidence that he is suffering from a considerable amount of anxiety and anxiousness so much so that he is in receipt of benefit in relation to that; and he is, so his doctor tells the court, a person who is fearful of his safety. He thinks, and there is no reason to doubt the genuineness of his fears in his own mind, that the police, having become embarrassed at what he thinks is collusion between themselves and his erstwhile landlord's husband in an assault, are anxious to have him out of the way. He says that that anxiousness on his part has kept him away from Brighton and indeed from Sussex generally, where he fears that his life is in danger, and he relies on the right to life given by Article 2 of the European Convention on Human Rights and also on the right to a fair trial in Article 6 of the European Convention.
11. The root question in this case, as it seems to me at present, is whether justice can be done now in relation to these matters which took place a long time ago. That was the question which His Honour Judge Kennedy faced. He analysed matters carefully in his judgment and came to the conclusion that Mr Brown had not acted with sufficient speed. Now, there may be very good reasons for that in relation to Mr Brown's own medical and psychiatric conditions, which I can easily understand, but this court will only interfere in cases of this kind if it is satisfied that the judge below came to a decision which is an untenable decision. So we do not approach the matter on the basis of "would we have done the same?" but we approach it on the basis "has this judge erred in principle?"
12. I have looked carefully at the material. I have listened to Mr Brown for three-quarters of an hour or so, and clearly His Honour Judge Kennedy took very great care with his analysis of the matter. I see no reason to fault it, and I do not see any substantial prospect of success before this court. In those circumstances I refuse leave to appeal.
(Application refused; no order for costs).
POST JUDGMENT DISCUSSION
13. MR BROWN: Your Lordship, may I take you to page 20 of my bundle where it says I have shown quite categorically in the green book that you cannot strike out the case against the police as a result of Osmonds v UK. It cannot be done your Honour, under European law.
14. LORD JUSTICE SCHIEMANN: I am conscious of Osmonds case. If the case turned on the precise form of your pleading that would be a tenable argument. But what you have lost on is a question of the speed with which you proceeded to press the case.
15. MR BROWN: I went to the authorities -- the police complaints authority which I was told was the correct procedure. Your Honour, I am astounded by this because I belong to the British Institute of Human Rights and I've actually given a little talk on Osmonds. I have been assured by people of the British Institute of Human Rights that we are now one hundred per cent in the European Convention on Human Rights and my life must be protected. I am only asking this court to tell the police to withdraw their evil - and I will say that categorically now - their evil policy that violence in general against me is not considered to be a crime. That is all I am asking this court to do even if it does not give me one penny in compensation, just put my life - just put my life in safety, your Lordship.
16. LORD JUSTICE SCHIEMANN: That is a different form of relief which we cannot give in this court at the moment but take comfort from the fact that you are still alive - ten-years later.