Phillips v The Commissioner of Police of the Metropolis

The issue in this appeal is whether the judge was right to refuse trial by jury. It is a second appeal. On 6 February 2002 Master Eyre refused the Claimant’s application for trial by jury and the decision was upheld by Judge Chapman, sitting as a judge of the High Court on 16 May 2002. The present appeal is from that decision.

Section 69 of the Supreme Court Act 1981 provides:

In July 1996 the Claimant was living with his girlfriend, Linda Silver, in her maisonette in East London, but the relationship was not going well. He had been given until the end of the week to leave but was keen to maintain the relationship. On the evening of 9 July 1996 the Claimant had, on his own account, consumed drugs and alcohol and was behaving in a very disturbed manner that was hostile to Ms Silver. He dialled 999 and complained of a mad woman jumping up and down on the steps. He armed himself with a knife. Two police officers arrived, found the Claimant with a knife, and sent for reinforcements. In the small hours of the following morning nine or ten police officers with full riot gear including visors, shields, CS gas and a police dog forced their way into the flat. The Claimant alleges that in the ensuing fracas he was seriously assaulted and suffered grave injuries. He was arrested and taken to Forest Gate police station and then to Newham General Hospital where he suffered an asthma attack. He claims to have been further assaulted after he had been removed from the maisonette and at the hospital. His injuries included a possible fractured skull, a fractured right ulna, a dislocated left shoulder, chest injuries and gastro-intestinal bleeding as well as problems from the C.S gas. He was in hospital for nine days.

He was later charged with affray and was remanded for 10 days in Pentonville prison. The jury at his first trial was unable to agree but following a retrial he was acquitted.

The defence in the present proceedings is, broadly, that the Claimant was violent and out of control. He attacked the officers with a knife and a champagne bottle. He was deranged. The police were faced with a desperate situation and initially he was arrested for attempted murder. He continued to be very aggressive even at the hospital. No more than reasonable force was used.

Judge Chapman understandably concluded that he could not tell whether, and if so how, Master Eyre had exercised his discretion under Section 69 and was therefore going to consider the matter afresh and exercise his own discretion.

Any case that falls within Section 69(1)(a), (b) or (c) is to be tried with a jury, provided an application is made in due time, unless the court considers the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

Judge Chapman identified four substantial disputes of fact between the Claimant and the police: (1) what he was doing when they arrived, (2) what the officers did to him in the flat, (3) what they did to him in the police car and on the way to hospital and (4) how he came to sustain the injuries that he undoubtedly had.

He said that there would be two or possibly three orthopaedic surgeons giving expert evidence as to the manner in which the Claimant’s injuries were caused. Then he referred to his mental health problems. His mental health problems on the day were relevant as to (1) his ability to answer questions about the incident when he was interviewed and the weight to be given to his answers, (2) the probability that he behaved in a particular way when confronted by police officers and (3) the extent to which he had ongoing problems and whether they were caused by the incident. This would involve psychiatric evidence from two psychiatrists.

Next, there was an issue about whether the Claimant struck a police shield with a knife and there were experts on both sides to help with that. The judge regarded it as relevant that orthopaedic surgeons, psychiatrists and forensic scientists often gave evidence before juries at criminal trials. It was argued on behalf of the Defendant that there were several matters on which expert evidence would and might have to be given and that consideration of the experts’ reports would involve prolonged examination of documents. Further, the expert evidence necessitated a scientific inquiry that could not conveniently be made with a jury. The judge however, dismissed that argument as much too simplistic saying:

“The reports of the doctors will not go into the jury bundle as the evidence unless they are agreed or unless for some reason those reports go in an as a previous inconsistent statement. In the main the doctors’ evidence will be given orally. It is also said that they will need to refer to the G.P notes. The medical witnesses may need to do so but there will be no need for the jury to have files of thirty years of medical records before them. It may not be necessary for them to see any at all but if they see any then they could be strictly limited.”

He then went on to say that by itself jury trials with experts giving evidence were not inconvenient and were readily managed in civil and other (by which he meant criminal) jurisdictions. He said that if the matter had ended there he would have allowed the appeal but said it did not because there were claims for ongoing medical problems and a continuing loss of earnings that would involve comparison of the state of affairs before and after the accident.

In our judgment the judge fell into error in his comparison with the criminal jurisdiction. What he had to consider here was his civil jurisdiction and the convenience of investigating the disputed issues before a jury in that context. Criminal and civil procedure is very different. Judges have special expertise and experience in separating the material from the immaterial. A judge can read the expert witnesses’ evidence in chief in advance, thus saving much time. He can also be provided with, for example, bundles of medical records such as G.P. notes and quickly pick up what is relevant and what is not.

That an extensive conflict of medical evidence is precisely the type of situation envisaged by the exception in Section 69 (1) is supported by the observations of Sir Patrick Russell in Darragh v The Chief Constable of ThamesValleyPolice (unreported) 16 October 1998. He said at p.3D speaking of the issue of damages in that case:

“There are very extensive medical reports and very extensive conflicts of medical opinion as to the sequelae consequent upon the alleged police malpractice to which I have referred. It is unnecessary to rehearse, as the judge did, the extent of the medical reports but they give some idea as to their extent from what we have been shown this morning. In my judgment this is a case where there will be a prolonged examination of a scientific investigation. I see no reason to suppose that that phrase to be found in section 69 should have a limited construction. Accordingly, so far as damages are concerned, if they were to be considered in isolation I would be inclined to agree that the case is one for trial by judge alone as opposed to trial by jury.”

Of course it is to be hoped that much of the expert evidence will eventually be agreed, but viewed at the stage that Judge Chapman was assessing the situation it seems to us that the trial was likely to involve prolonged examination of documents and also scientific investigation on a number of medical and other issues and that this could not conveniently be done with a jury. Convenience involves considerations of time and cost. Trial by jury will inevitably take longer and cost more than trial by judge alone. It is not without some significance that there were two criminal trials because the first jury was unable to agree.

The judge upheld the Master’s decision but only because, in his view, there were two discrete issues that could not conveniently be tried by jury. His reasoning was that more often than not in the present type of case there was a separation of liability and quantum but that even if there was not, a jury could cope with assessing a conventional figure for pain suffering and loss of amenities if given appropriate assistance by the judge. But this case was different because there was a question about future loss of earnings and this would involve looking at the Claimant’s past employment history and if, as the evidence suggested, that history was patchy, making a significant discount to the multiplier. His previous psychiatric history and any pre-existing problem with his shoulder might also have a bearing on the multiplier. The judge also regarded assessment of a claim for being at a disadvantage on the labour market under Smith v Manchester Corporation (1974) 17 K.I.R.1 as something that could not conveniently be dealt with by a jury.

There was, as he put it, a sting in the tail of the quantum issue. These two aspects of the claim would involve significant examination by the jury of documents or accounts. There was, he said, material that would need to be examined by the court that could not properly be made with a jury.

The judge then went on to consider the possibility of separating the trials of liability and quantum, observing that if the issue was simply one of liability it would be wholly appropriate for a jury to try it. He noted that the court had faced a similar problem in Darragh when liability was appropriate for a jury trial but damages for a judge alone observing that in that case neither side wanted a split trial. There the Court of Appeal upheld the judge’s decision that there should be trial by judge alone because there was nothing wrong in principle with his decision.

The judge concluded that notwithstanding such an order was not made in Darragh it was possible, in appropriate circumstances, to split the issues of liability and quantum under Section 69(1) with one being tried with a jury and the other by judge alone. In our judgment the judge was undoubtedly right. Section 69(4) (to which the judge was not referred) makes it quite plain that different issues of fact may be tried by different modes of trial. The subsection says that the power may be exercised ‘in accordance with rules of court’. C.P.R. 3.1 spells out the court’s general powers of management. These include 3.1(1)(i) power to direct a separate trial of any issue and 3.1(1)(m) power to take any other step or make any other order for the purpose of managing the case and furthering the overriding objective – which is of course to deal with cases justly. Accordingly we have no difficulty in concluding that in applying the exception in Section 69(1) the court is able in appropriate circumstances to fillet out part of a case to be tried by judge alone leaving the remainder to be tried with a jury. The split does not necessarily have to be between liability and quantum. That this is so is apparent from the reference in Section 69(4) to ‘different questions of fact arising in any action’. We do however emphasise the qualification that such an order should only be made in appropriate circumstances. There will no doubt be many cases where once it is clear that some issues cannot conveniently be tried with a jury the whole case will more appropriately be tried by a judge alone. An obvious example is where questions of credibility are relevant across the board.

In the event the judge concluded that it would be impracticable to separate liability and quantum for two reasons. First the medical experts might have to attend court twice. Second the Claimant’s credibility was fundamental to both liability and quantum and it would therefore be inappropriate for the issues to be dealt with by different tribunals. So his conclusion was that because aspects of the further loss claim involved a significant scientific inquiry that could not conveniently be made with a jury the whole case should be tried by judge alone.

Mr David Pittaway Q.C for the Appellant argued the appeal along the following lines. The judge had identified two matters and two matters only that were not suitable for trial by jury. These were the multiplier and the Smith v Manchester claim. Given Section 69(4) and the power in the Civil Procedure Rules, to which we have referred, he should have directed that those issues be hived off to be decided by a judge alone leaving the rest of the case to be tried by a jury. We agree that this might have been an appropriate course had the remainder of the case been suitable to be tried by a jury. But it is not because a prolonged examination of documents and scientific investigation permeates the whole question of liability.

Mr Pittaway sought valiantly to persuade us that the ambit of the disputes between the experts was not great. On this, however, only time will tell and it is to be hoped that issues will be narrowed. We note that the trial is fixed with an estimated length of 12 days. With a jury it is bound to take longer. How much longer is an open question. The Respondent says twice as long; the Claimant says perhaps one and a half time as long. So trial by jury would add another six or twelve days. In our view this is a very material matter on the issue of convenience. In any trial the court tries to protect a jury from being flooded with documents and it seems to us abundantly clear that it would be more convenient for a judge alone to try the whole of this case.

Mr Pittaway emphasised a claimant’s constitutional right to trial by jury in this type of case and urged that the exception in subsection 69(1) should not be construed widely. He submitted that if trial by jury is not appropriate in the present case one will end up with only the simplest of these cases ever being tried by a jury.

The main thrust of the Respondent’s argument was based on the contention, as set out in the Respondent’s notice, that the judge was in error in concluding that the orthopaedic, psychiatric and scientific evidence did not fall within the exception in subsection 69(1). He submitted that the judge had misled himself by drawing an analogy with criminal proceedings. Whereas a jury was mandatory in criminal cases there was a mere presumption that one was appropriate in the types of civil case envisaged by Section 69. The judge did not apply the correct test of convenience.

The meaning of ‘conveniently’ was described by Popplewell J in Aitken v Preston (unreported) 15 May 1997 and approved by Lord Bingham C.J on appeal:

“`Conveniently’ means without substantial difficulty in comparison with carrying out the same process with a judge alone. This may involve consideration of several factors------- ”

Popplewell J then went on to mention the additional length of a jury trial compared with a trial by judge alone; the additional cost of a jury trial which covered matters in addition to length, for example additional copies of documents; any practical difficulties such as handling bulky files and the scrutinising of documents and any special difficulties or complexities in the documents themselves.

Mr Simon Freeland Q.C, for the Respondent, told us there were in the present case some 350 pages of medical records and 50 pages of general practitioner notes on which the defence would wish to cross examine. There would also be extensive reference to both cross examination and documents in the criminal trials. In our judgment this is a compelling point on the question of convenience. Inevitably, so it seems to us, consideration of material of this kind can be more conveniently conducted by a judge alone. He can read the documents in advance, or during the trial both in and out of court time and is much more able than a jury to identify those passages that are potentially material.

In Aitken v Preston Lord Bingham C.J referred to the three issues that Popplewell J had correctly identified as requiring decision in that case. These were:

Subject to the addition of any scientific investigation to the first question, those three questions seem to us entirely apt for the present case. In our judgment, had the judge applied the correct test, asked himself these questions and not been deflected into considering the criminal process he would have answered the first question in the affirmative and the second and third questions in the negative.

In our judgment Master Eyre’s instincts were right when he said if ever there was a case not to allow trial by judge and jury this is it. Unfortunately however in reaching this conclusion he did not say what led him to it and, importantly, he gave no indication that he applied the test in Section 69 of the Supreme Court Act 1981. Judge Chapman too reached the correct conclusion but we are unable to accept his reasoning that but for the two issues on quantum and the credibility overlap the case would have been suitable for trial with a jury. The appeal must in the circumstances be dismissed.