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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 >> Lawrence v O'Byrne [2002] EWCA Civ 80 (24 January 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/80.html Cite as: [2002] EWCA Civ 80

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
(His Honour Judge McIntyre)

		Royal Courts of Justice Strand London WC2 Thursday, 24th January 2002

Thursday, 24th January 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of His Honour Judge McIntyre made on 10th December 2001 whereby he ordered in proceedings brought by the claimant against the defendant, the Chief Constable of Bedfordshire, that:

"The Defendant [was] entitled to contend that the use of force by PC Heath against the Claimant and his arrest of the Claimant on 15th June 1997 [was] lawful and, save as to the fact of his acquittal, and save for the purpose of proving any inconsistent statement, the Claimant [was] not entitled in this claim to rely upon the judgment given at the Crown Court at Luton on 20th August 1998 in the criminal proceeding brought against him."

2. The circumstances in which that order came to be made are as follows. The factual background was that during the late evening of Sunday 15th June 1997 a Police Constable Heath and Police Sergeant Hartley were called to a disturbance outside Unwins, the wine merchants, in High Street North, Dunstable. As a result of the police intervention, the claimant was arrested and charged with affray. The charges were subsequently changed to an offence under the Public Order Act and a charge of assault against a police constable in the execution of his duty. Before the Magistrates' Court the charge under the Public Order Act was found proved, but the charge of assault on a police constable in the execution of his duty was dismissed.
3. The claimant appealed to the Crown Court against that conviction. The appeal was heard and determined on 20th August 1998, after the Circuit Judge and the magistrates with him had heard evidence over a period of four days. The court then allowed the appeal having determined, in a reasoned judgment, that there was no case for the claimant to answer. The claimant has subsequently brought these proceedings against the chief constable, claiming damages (including aggravated exemplary damages) for assault, false imprisonment, malicious prosecution and for negligently permitting the use of a weapon, which was a prohibited weapon within the meaning of section 65(1)(b) of the Firearms Act 1968 and which was a chemical weapon within the meaning of the Chemical Weapons Act 1996.
4. What had happened, in fact, was that having been arrested, as evidenced by Police Constable Heath, the claimant was struggling and the police officer discharged a CS gas canister at him order to subdue him. In the defendant's defence the arrest is justified. Accordingly, the issue that falls to be resolved in the proceedings is whether or not in the end it can properly be said that the police constable was entitled to arrest the claimant.
5. It is submitted on behalf of the claimant before me today that the defendant should be precluded from so arguing essentially on three grounds. Firstly, that the defendant is estopped from so contending by reason of the decision of the Crown Court. Secondly, that to allow the defendant to raise the issue of the lawfulness of the arrest is an abuse of process. Thirdly, that in any event, looking at the material available to the court, it is clear that, if one applies the test set out by this court in the case of Bibby v The Chief Constable of Essex [1994] JPR 164 at page 297, the defendant will be unable to satisfy the court that the arrest was indeed lawful.
6. The judge had concluded in his judgment that the claimant was not entitled to preclude the defendant from arguing the lawfulness of the arrest. He concluded that as there was no privity between the parties involved in the current proceedings and the parties in the criminal proceedings, estoppel could not apply. He further concluded that it was not an abuse of process for the matter to be relitigated, bearing in mind the fact that the parties were different and that, in the circumstances, there may be arguments which the defendant may wish to put forward which were not pursued or pursued properly or adequately in the criminal trial. He did not deal, as I read the judgment, with the argument put forward before me that the claimant is entitled in any event to judgment under Part 24 of the CPR on the grounds that there is no reasonable prospect of the defence succeeding.
7. It seems to me that the judge was plainly right in relation to the arguments as to estoppel and abuse of process. The criminal proceedings were not properly described as proceedings between the Chief Constable and the claimant whether or not they were commenced by way of complaint by the police. The position in a criminal trial is wholly different from the position in a civil trial. In the civil trial the Chief Constable is required to answer issues in a different context from the prosecutor in a criminal trial, and there is no justification for saying that estoppel can properly apply. That, of course, does not mean that the court could not come to the conclusion that it was an abuse of process.
8. I have no doubt whatsoever that in this case there can be no question of there being an abuse of process. This claim, although brought in name against the Chief Constable, is a claim essentially based on the unlawful actions of Police Constable Heath. He was a party to the proceedings in the criminal trial. It seems to me that he is entitled, unless the facts disclose that he has no reasonable prospect of defending the matter, to have the claim against him properly considered in proceedings where his interests can be properly defended and he has the opportunity not only, therefore, of playing a part in the litigation, albeit through the name of his employer, but has the opportunity of an appeal, which of course he would not have in the criminal proceedings. It seems to me, therefore, that the argument that the judge was wrong on either of the grounds upon which he gave his decision is wholly unarguable. It is, however, submitted that the facts as disclosed in the notebook and in the statement of Police Constable Heath do not suggest that he will in fact be able to give evidence, which will meet the test, as I have said, set out in the case of Bibby. I disagree. It may be difficult for him to do so, but I do not consider that the evidence indicates that he is inevitably going to fail. In those circumstances, it does not appear to me that it will be right or proper to deprive him of the opportunity, through his employer, of answering the case brought against him. The employer, equally, is entitled to have the issue which involves the allegation against the employed police constable properly considered by the court.
9. In those circumstances, there is no reasonable prospect of this court interfering with the judge's decision.
10. Accordingly, the application is dismissed.
Order: Application dismissed.