Kinsley v Commissioner of Police for the Metropolis

This is a renewed application for permission to appeal the decision of Mitting J dated 25 June 2007.

Mr Kinsley had made an application to reinstate an injunction previously ordered by Langstaff J on 25 April 2007. Langstaff J had ordered:

“1 Save as may be justified by law and until further order, the respondent shall not by his officers or other agents do anything or attempt to do anything amounting to harassment of the applicant and his family, which means the applicant, his wife, Soankahara, and son, Bucaciba and, in particular shall not stop or otherwise interfere with the person of the applicant or the persons of his family, or vehicles.

2 Paragraph 1 above applies only to those officers attached to Brent and Barnet in London.”

Mr Kinsley, the appellant, sought the reinstatement of Langstaff J’s order, minus paragraph 2. Thus, as Mitting J said, the claimant seeks an order affecting some 32,000 officers, being officers within the Metropolitan Police.

The history of this matter is that on 22 March 2007 the appellant issued an application for an order that the respondent be restrained from harassing him. As a result, so it is said by the respondent, of a failure to attend a hearing, an interim injunction was granted by Jack J. More importantly, on 25 April 2007 Langstaff J devoted a considerable amount of time to the issue of the interim injunction. On that occasion the respondent was represented by Mr Thomas. Langstaff J ordered an injunction, in the terms which I have already set out. He came to the conclusion that there was a serious issue to be tried. Having examined the material in the case, he then went on to say that on balance, although not by a great deal, he would be inclined to continue the injunction which had been made by Jack J.

That interim injunction ceased to be applicable as a result of the appellant’s failure to serve documents within a prescribed time. Thereafter, on 9 May 2007 there was a pre-trial review before Henriques J, who laid down a tight timetable for the hearing of the trial. Thereafter, after other hearings, the appellant sought an order from Mitting J reinstating the interim injunction; and it is from his refusal to do so that this application for permission to appeal relates.

It came before me on 23 November. I did not have the assistance of Mr Thomas; he had not been invited to attend. I became concerned that there had not been compliance with the orders made by Henriques J and that the trial date was slipping. I therefore decided that, before resolving the application for permission, I ought to take steps to see that this trial was proceeded with as quickly as possible. As a result of steps that were taken by the deputy registrar of the Court of Appeal, the matter was listed before Royce J, who considered the matter on 14 December 2007, in other words just a few days ago. Mr Thomas tells me that Royce J was also disappointed that the progress of this trial seemed to be slow. I had hoped that the trial could take place early next year. That is not to be.

One of the issues in the case, although, of course, not decisive of the case at all, relates to the events of 4 December 2006. Subsequently on 25 October 2007 the appellant was convicted of four offences said to arise out of those events. Thereafter the appellant had a right of appeal, which he is exercising to the Crown Court. Unfortunately that appeal cannot be heard before 11 August 2008. Mr Kinsley has argued, with some force, that it would be better for the civil proceedings to take place after the outcome of that appeal is known. Furthermore there are other pending cases. I should add that the appellant was successful in obtaining relief against the Justices before Burton J. Doing the best I can to understand what happened before Burton J, it appears that the Justices had declined to suspend the sentence until the hearing of the appeal. They were ordered to do so by Burton J. Thus we are left in this position: that the trial will not take place before next October.

Mr Kinsley submits to me that the fact that the trial will be heard next October, or as soon thereafter as possible, is no justification for not granting him an interim injunction. He says even if the trial could take place next week, he would still be entitled to an interim injunction.

There is a long history to this case, and I refer to the judgment of Langstaff J ([2007] EWHC 3084) and the judgment of Mitting J under appeal, of which I have an approved judgment with the number HQ07X01650 on it. I take the view, for the purposes of only of this application for permission, that there is a serious issue to be tried, and therefore one approaches the case by reference to the principles set out in American Cynamid Co v Ethicon Limited Co [1975] AC 396. At page 408 the relevant principles are set out. The first matter which has to be considered is whether or not the plaintiff would be adequately compensated by an award of damages. The appellant argues that what he needs now is an order which will give him the protection he seeks. He submits that since the lifting of the injunction there have been further incidents where, so he submits, he has been unlawfully harassed.

When considering the issue of damages, one also takes into account whether the defendant would be adequately compensated if the plaintiff were to give an undertaking as to damages. Clearly in a case like this that would not be adequate compensation for the respondent. It seems to me that the right approach, and that is the approach that was taken by Mitting J, was to go on and apply a simple balance of convenience test, as set out at page 408. In order to succeed, the appellant has to show that Mr Justice Mitting, in applying the balance of convenience test, either made an error of law or reached a conclusion which no reasonable judge could reach. What he said was that in his view the injunction would unjustly and improperly fetter the lawful exercise of their powers by police officers within the Metropolitan Police Force.

Langstaff J had, on the other hand, come to the view that, as I have said, an interim injunction should be granted. That demonstrates to me that it is possible for two judges to reach a different conclusion on the issue which Mitting J had to resolve. He also said, contrary to the submissions of the appellant, that if he were to succeed in his claims, then damages would be an adequate remedy, notwithstanding that the appellant himself does not at this stage seek any damages.

In my judgment it is not arguable that Mitting J either made an error of law or reached a conclusion which no reasonable judge could reach. Mitting J was entitled to find that the order sought would unjustly and improperly fetter the lawful exercise of their powers by the 32,000 police officers of the Metropolitan Police. This appeal has no real prospect of success. For these reasons this renewed application for permission to appeal fails.