Hutchinson V Metropolitan Police Commissioner & Anor

This action for damages for personal injury alleges that the claimant ("Miss Hutchinson") suffered physical and psychiatric harm from an assault on her in March 2000 by the second defendant ("Miss Morgan"). Miss Morgan was at that time a probationer constable in the Metropolitan Police. The first defendant is the Commissioner of the Metropolitan Police ("the Commissioner") and is said to be liable for the actions of Miss Morgan.

For reasons given below I have concluded that Miss Hutchinson’s account of events is inaccurate and that no assault occurred. My draft judgment on liability, which was substantially as set out at paragraphs 4 to 102 below, was made available on 17.12.04.

At a hearing on 21.12.04 I was asked by Miss Hutchinson to reconsider my conclusion. At paragraphs 103 to 114 below I give my reasons for declining to do so. The parties also made requests that I deal with certain other matters. I describe those requests at paragraphs 115 to 168 below, where I also set out my findings on those matters. A brief summary of my overall conclusion is at paragraph 169 below.

In March 2000 Miss Hutchinson was working as a part-time packer for J Sainsbury plc ("Sainsburys") at their supermarket in South Woodford. The manager of that supermarket was Barry Gramlick, and his deputy manager was Stephen Meechan. At that time Miss Morgan was the fiancee of Mr Meechan. As noted earlier, she was also a probationer constable in the Metropolitan Police.

On the evening of Saturday 25 March 2000 Sainsburys held a millennium party for their employees at the function suite at the David Lloyd Fitness Centre, Chigwell, Essex ("the Centre"). The Centre is located in Epping Forest. The party ended in the early hours of Sunday 26 March.

Among those attending the party were Miss Hutchinson, Mr Meechan and Miss Morgan. All concerned agree that during the course of the party there was an incident in the function suite over a bar bill involving Stephen Gibbard, an employee in the supermarket baking department, and that towards the end of the party there was an incident in the car park involving Miss Hutchinson and Miss Morgan. I shall call the former "the bar bill incident" and the latter "the car park incident". The precise circumstances of both incidents are in dispute. Miss Hutchinson said in her witness statement that during the bar bill incident she saw Miss Morgan with her hands around Mr Gibbard’s throat, threatening him and swearing at him. She continued that after the bar bill incident, when she was outside the function suite near the stairs, Miss Morgan barged into her, causing her to spin around and knock the back of her head against the wall. Miss Hutchinson’s witness statement added that Miss Morgan carried on walking past her, followed by Mr Meechan, and that she said to him that Miss Morgan had knocked her flying for no reason. I shall call this event "the stairwell bump".

The evidence of Miss Morgan and Mr Meechan was that in the course of the bar bill incident Miss Morgan held Mr Gibbard by his shirt collar, not his throat, and did not swear at him. They had no recollection of the stairwell bump. For her part Miss Hutchinson does not say that her injuries from the stairwell bump were such as to warrant legal action. Her claim is for assault and battery which she says Miss Morgan inflicted on her during the car park incident.

Miss Hutchinson’s claim is that in the car park Miss Morgan stated "I will get the coppers and do you under section 28, I am a WPC" and that, following her reply and a remark by Mr Meechan, Miss Morgan grabbed her by the throat, threw her to the ground, and delivered blows to her upper body. Miss Morgan and Mr Meechan agree that Miss Morgan identified herself as a police officer — although not in the way described by Miss Hutchinson. They say that Miss Hutchinson was drunk and abusive and is responsible for her own injuries, having attacked Miss Morgan and fallen to the ground when Miss Morgan pulled away from her.

Miss Hutchinson says that the Commissioner is liable for Miss Morgan’s actions as those of a constable under his direction and control in the performance or purported performance of her functions within s 88(1) of the Police Act 1996. Miss Morgan denies assaulting Miss Hutchinson, an issue on which the Commissioner is neutral. If, however, I should find that Miss Morgan did indeed assault Miss Hutchinson, then the Commissioner says that Miss Morgan was not acting in the performance or purported performance of her functions. If both the Commissioner and Miss Morgan are liable to Miss Hutchinson, then questions arise between them under Part 20 CPR.

A remarkable feature of this case is that the physical consequences of the alleged assault are dwarfed by what Miss Hutchinson asserts have been its psychiatric consequences. The Particulars of Claim describe physical injury in the form of a bleeding nose which was painful and swollen on its right hand side, a swollen right eye, pain and bruising to the face and left arm and weal marks and scratches to the neck and right arm, with limitation of movement in the left arm due to significant pain. Of these physical injuries, only that associated with the left arm is said to have had continuing physical effects. However, Miss Hutchinson says that the psychiatric consequences were so shattering that she is appropriately diagnosed as suffering from Post Traumatic Stress Disorder ("PTSD"), a condition more commonly associated with those who have suffered the trauma of war or catastrophic accidents. I heard evidence from Professor Malcolm Weller, an Emeritus Consultant Psychiatrist, Honorary Research Professor at Middlesex University and Chartered Psychologist, in support of this diagnosis. Professor Weller considered that the claimant’s family history made her particularly vulnerable to PTSD, and that without that special vulnerability the assault would not have led to such severe psychiatric consequences. This was acknowledged by Mr Jacobson when opening the case for the claimant. He submitted that just as for physical injury a defendant is liable to recompense a claimant with an eggshell skull, so for psychiatric injury a defendant cannot complain that the victim of an assault was unusually susceptible to psychiatric disorder.

Miss Hutchinson was seen by police officers after she returned home in the early hours of 26.3.00. This led to 2 sets of proceedings. The first was a criminal prosecution against Miss Morgan. The second was a complaint by Miss Hutchinson against Miss Morgan of misconduct, which was dealt with under police disciplinary procedures. It was only after seeing solicitors on 28.3.01 that Miss Hutchinson gave instructions to solicitors to begin civil proceedings. The issuing of civil proceedings, however, was not put in hand immediately. It was decided to await the outcome of the criminal process.

In December 2001 the criminal proceedings against Miss Morgan were listed for trial at Chelmsford Crown Court. After 2 days of legal argument, HHJ Hawkesworth concluded that the prosecution was an abuse of process, and decided that it should be stayed. His Honour determined that the prosecution had failed to obtain a video recording which would have shown the area of the fracas in the car park and would have provided crucial and independent evidence which otherwise was signally lacking. He found that the original intention had been to prosecute only for common assault, but the CPS had decided, in order to avoid the time limit for such a prosecution, to prefer an indictment alleging assault occasioning actual bodily harm. This was grave prejudice to Miss Morgan caused by inexcusable delay and mismanagement. To this was to be added continuing delay, the ignoring of court orders, and the continuing deterioration in the health of Miss Morgan. Looking at the cumulative effect, it was neither possible for Miss Morgan to have a fair criminal trial, nor was it fair to try her. His Honour emphasised that there was no evidence of bad faith, nor did he find any suggestion that people went soft on the prosecution because it involved a police officer. He added that he had made no observations which would indicate on the merits that any claim for assault by Miss Hutchinson would necessarily fail. Indeed, he had every sympathy with her predicament which he had been told had also in her case led to a deterioration in health.

It appears from information provided by the Commissioner on 13.5.04 that after the stay of the criminal proceedings the Police Complaints Authority directed that Miss Morgan should face disciplinary proceedings. On 6.2.03 the Commissioner notified Miss Morgan that she was to appear before a misconduct hearing to face a charge of behaving in a way likely to bring discredit on the police service. On 20.10.03 at the disciplinary proceedings Miss Morgan successfully applied to have the charges against her dismissed as an abuse of process based on the non-availability of the videotape, Miss Morgan’s health, and the manipulation or misuse of the criminal process.

In the meantime Miss Hutchinson’s solicitors had arranged for her to see Professor Weller on 11.11.02, and he provided a report on 9.12.02. This stated his belief that the symptoms described by Miss Hutchinson constituted PTSD. While it was arguable whether the index episode satisfied the diagnostic criteria for PTSD, Miss Hutchinson’s symptoms were characteristic. There was a family history of psychiatric problems and this increased the likelihood of PTSD. He found a constellation of symptoms described as a "melancholic" pattern of illness, "compatible with a constitutional element and ... the more severe type of depression." Professor Weller recommended formal counselling, preferably cognitive behavioural therapy from a Chartered Psychologist, and a review of medication by a consultant psychiatrist pending which Miss Hutchinson should return to taking Venlafaxine as prescribed by her GP. His prognosis was that there was a high probability of Miss Hutchinson becoming a chronic case, and that even with treatment Miss Hutchinson was likely to be vulnerable to stress and for her symptoms to be exacerbated or re-ignited in stressful circumstances.

The claim form in the present proceedings was issued on 18.3.03, but the service of particulars of claim was left over until the disciplinary process was complete. The particulars of claim were served on 22.12.03 and defences were served by the first and second defendants on 21.1.04 and 2.2.04 respectively.

The trial began on Tuesday 16 November 2004. Mr Jacobson’s opening on behalf of the claimant took longer than had been expected, largely because it was interrupted by a number of interlocutory disputes. I heard witness evidence from the afternoon of Wednesday 17.11.04 until the evening of Wednesday 24.11.04. All parties agreed that closing submissions should be in writing.

At a large party of this kind some guests – especially those who have arranged to drive home – will avoid drinking alcohol, some will drink just a little, many will have quite a bit to drink, and some will get very drunk. That some guests will get drunk is no reflection on Sainsburys – it is inevitable. Nor is it necessarily a grave criticism of the people in question to say that some were very drunk –people are entitled to let their hair down at a party, provided that they do not drive home after drinking more than the legal limit, and provided that they do not become disorderly.

How much people had to drink is, however, an important question when considering their evidence about disputed events.

In considering the evidence I start with one of those who drove home. Ms Kennett was the checkout manager at South Woodford. She attended the function at about 7.30 p.m. with Ms Carol Ackerman, who is a checkout supervisor.

Ms Kennett’s account in her witness statement included the following:

Miss Hutchinson called Ms Kennett as a witness. She was an impressive witness, giving her answers frankly and forthrightly.

Under cross-examination Ms Kennett’s evidence was that she thought Miss Hutchinson was drunk. Ms Kennett did not know how much Miss Hutchinson had had to drink: she had not been with her all evening. When Miss Hutchinson came to join Ms Kennett and Ms Ackerman, Miss Hutchinson was quite angry. Ms Kennett said to Ms Ackerman, "I’m leaving because it seems like there is a load of trouble here," – or words to that effect.

Ms Kennett told me that knowing Miss Hutchinson’s nature, she assumed that Miss Hutchinson was likely to be part of the trouble. What she meant by her "nature" was that Miss Hutchinson was quite argumentative: "... whenever I questioned her about something, she was always quite challenging with me - I had not seen her be particularly aggressive on previous occasions, but when we were together in the smoking room she put the world to rights: everything that was wrong with the store she knew what she could do." Returning to the evening of 25 March 2000, Ms Kennett said that Miss Hutchinson didn’t have a drink in Ms Kennett’s company – she was at Ms Kennett’s table only a few moments. Miss Hutchinson was however clearly upset.

In response to questions from me, Ms Kennett said that she knew Miss Morgan as "Danny". When Miss Hutchinson came back into function room upstairs, Miss Hutchinson knew who Danny was, Mr Meechan’s girlfriend, and that was who she was upset with.

Turning to the car park incident, in cross-examination Ms Kennett said that when Miss Hutchinson made for Miss Morgan and Mr Meechan she realised there was about to be trouble. She thought she [Ms Kennett] said something like. "Leave it". It was obvious that things were about to get out of hand. Miss Hutchinson went over to Miss Morgan and Mr Meechan, saying something about demanding an apology. Ms Kennett said to Ms Ackerman, "Let’s get out of their way." Miss Hutchinson was angry. Ms Kennett didn’t see much of the confrontation. She didn’t hear anything that happened after she got into the car. Miss Hutchinson said something like, "I want a word with you". Ms Kennett then heard Mr Meechan say, "Not now Debbie." Ms Kennett didn’t stop walking.

In reply to me Ms Kennett said that when Miss Hutchinson spoke about getting an apology she [Miss Hutchinson] was angry. Knowing Miss Hutchinson there were some swear words, but Ms Kennett could not recall the actual words.

I was satisfied that Ms Kennett had not had anything to drink on the night in question and that her evidence as to what she saw and heard, and as to the impression that she formed of the state of Miss Hutchinson as events unfolded, was truthful and reliable. Some of the matters recounted in Ms Kennett’s witness statement were, of course, no more than what others told her. As to that, in the confusion of events that evening I place reliance only on those matters of which I have first hand oral evidence, tested in cross-examination.

Mr Gramlick was the store manager at South Woodford. In his witness statement he explained that he had become involved in the bar bill incident after a security guard approached him and told him that there was a dispute about a bar bill. After he intervened Mr Gibbard said that Mr Meechan and Miss Morgan had been "out of order". Mr Gramlick did not then know what Mr Gibbard was referring to, but at some stage he became aware that there had been an earlier incident in which, apparently, Mr Gibbard had been grabbed around the throat by Miss Morgan. For his part Mr Gramlick did not recall seeing any injuries on Mr Gibbard at the time. Mr Gramlick had spoken to Miss Hutchinson in the stairwell, at a stage when he was considering following Mr Gibbard’s friend to make sure he left the premises, but Miss Hutchinson said, "Barry, it’s not worth it. You’re the branch manager, he’s going anyway." She was concerned that he would cause problems if Mr Gramlick followed after him. Mr Gramlick did not witness either the stairwell bump or the car park incident. After a complaint by Mr Flory the next day, however, Mr Gramlick visited Miss Hutchinson and conducted an investigation.

Mr Gramlick gave oral evidence on behalf of Miss Hutchinson. In cross-examination he accepted that he had had more than 3 or 4 drinks. He was at the party to relax. His reply when asked whether Mr Meechan was drunk was that he had no idea. His reply when asked whether Mr Gibbard was very drunk was that Mr Gibbard may have been very drunk. His reply when asked whether Miss Hutchinson had been drinking was that he did not have a clue.

I considered that Mr Gramlick gave evidence in a distinctly defensive way. Miss Hutchinson herself described Mr Gramlick’s state on the night in question as "merry". I believe that he has only a hazy recollection of events.

Mr Tucker was the bakery manager at South Woodford. In his witness statement he dealt with the bar bill incident, explaining that Mr Gibbard was a member of his staff. Mr Tucker described being told by Mr Gibbard that Mr Meechan and Miss Morgan kept looking over at him (Mr Gibbard). They were standing about 10-12 feet away. "Mr Gibbard felt that they were keeping their eyes on him as he is usually quite outgoing." A short while later Mr Gibbard asked him for money. Mr Tucker did not have enough cash, so asked Patricia Pells, another member of staff, if she could help. She gave him the money which he passed on to Mr Gibbard. Mr Gibbard went over to Mr Meechan to give him the money. They began to argue and Mr Meechan said something like, "Pay up or I’ll take you outside. " Mr Gibbard replied, "You’re not at work now". Miss Morgan intervened, went up to Mr Gibbard and said something about being a martial arts expert and, "Don’t get mouthy". She then grabbed his throat with one hand, her right hand, and squeezed his throat. Other people saw what had happened and started to intervene. Mr Gramlick came over, and Mr Gibbard was asked to go into the hallway to sort things out. Mr Tucker said he saw Miss Morgan push into some people, this was when she went up to Mr Gibbard and grabbed his throat.

Mr Tucker’s witness statement also dealt with the car park incident. He said that in the car park he saw Mr Meechan, Mr Gibbard, Miss Morgan and Claire Houlihan talking together. Miss Morgan, he said, was apologising to Mr Gibbard for the earlier incident. Everything seemed quite calm. Mr Gibbard came over to him. He saw Miss Hutchinson talking to Mr Meechan and Miss Morgan whilst he stood with Mr Gibbard. He heard Miss Hutchinson say, "You owe me an apology, you barged me out of the way." She directed this to Miss Morgan, and Miss Morgan replied "Shut your face". As Mr Meechan and Miss Morgan were walking back to club Miss Hutchinson followed them and, again, asked Miss Morgan to apologise. She said she had been a police officer for five years and would not have dealt with incidents in the way that Miss Morgan had. Miss Morgan was generally abusive towards Miss Hutchinson verbally, poking Miss Hutchinson in chest at least five or six times. Mr Tucker said he was standing about 6 to 8 feet away at this time. The car park was quite well lit, and you could see clearly 40 feet. Miss Morgan grabbed Miss Hutchinson’s neck and pulled Miss Hutchinson down to the ground. Miss Morgan kept her hands on Miss Hutchinson’s throat for about 30 seconds. Miss Morgan was shouting and swearing at Miss Hutchinson. Mr Meechan and Ms Pells intervened, and pulled Miss Morgan away from Miss Hutchinson. Ms Lewis was in the vicinity. When pulled to the ground Miss Hutchinson was not lying completely on the ground, she was partly held up by Miss Morgan, with one side of her body towards the ground. Miss Hutchinson was assisted by Ms Lewis. She said to Miss Morgan she was going to call the police. Miss Morgan said, "Go on then". Miss Hutchinson was crying, he remembered her holding a tissue to her nose with blood on it. Ms Lewis and Miss Hutchinson went back into the club followed by Mr Meechan and Miss Morgan. He did not recall Miss Hutchinson being threatening, verbally or otherwise, or using force towards anybody.

As to events after the car park incident, his witness statement said that he did not go into the club until five minutes later. He spoke to Ms Kennett and Ms Lewis in the downstairs lobby. They were with Miss Hutchinson who was still crying. Miss Hutchinson said Miss Morgan had put the receiver down when she had tried to call the police. Miss Morgan was not there at this time, neither was Mr Meechan. After the incident he went home with Ms Kennett, Ms Lewis, Miss Hutchinson and Ms Ackerman.

Mr Tucker was called as a witness by Miss Hutchinson. It emerged that his witness statement gave a misleading impression and contained serious inaccuracies. In particular as regards the car park incident, the witness statement failed to mention that for much of that incident he had been with Ms Kennett and Ms Lewis – who were in Ms Kennett’s car, some distance away from Miss Hutchinson, Mr Meechan and Miss Morgan. He accepted in cross-examination that it was on his way to the car that he had a conversation with Mr Gibbard. Initially he reiterated orally the claim in his witness statement that Miss Morgan "was actually apologising" to Mr Gibbard. Later, however, he admitted that he did not know what Miss Morgan had actually said to Mr Gibbard. He explained that it was Mr Gibbard who told him that Miss Morgan had apologised. As to what was taking place between Miss Hutchinson and Miss Morgan, he was seeing either through or around Mr Meechan, Ms Pells and Mr Gibbard. Under cross-examination he accepted that the "poking" described in his witness statement was not a real push to the body. Initially he said he could see Miss Morgan’s finger touching Miss Hutchinson – he being at this time behind Miss Morgan’s back, looking at a 45 degree angle, with Mr Meechan beside Miss Morgan. Later he accepted that he could not be sure that there was physical touching, adding that Mr Meechan was to the right of Miss Morgan, and that he [Mr Tucker] was to the right of Mr Meechan, both of them being slightly behind Miss Morgan, so that he could see Miss Morgan’s right arm.

Mr Tucker’s witness statement had said that Ms Lewis was in the vicinity at the time of the car park incident, and that when he saw Miss Hutchinson on the ground she was partly held up by Miss Morgan and was assisted by Ms Lewis. However, both Ms Lewis and Ms Kennett said that Ms Lewis had gone to the car with Ms Kennett and Mr Tucker, that Mr Tucker had gone to find out what was happening, and that it was after Mr Tucker had returned from this expedition that Ms Lewis (with Ms Kennett) went to the entrance to the Centre and found Miss Hutchinson there. Under cross-examination Mr Tucker described what he had said on this in his witness statement as being "not 100% certain, about 8 out of 10." He was unable to accept the reality that he was plainly wrong.

Mr Tucker gave me a distinct impression of confusion as he gave his evidence. Miss Hutchinson herself admitted that it was clear that he had had more than one drink. Mr Tucker admitted to having three or four pints. I do not think he was in a position to see or hear much of what he described as taking place in the car park. As to those events that he could see or hear, whether in the function suite or in the car park, I conclude that he had had a good deal to drink – more than 3 or 4 pints, and was able neither at the time to discern, nor later to recollect, the detail of events with accuracy.

Ms Lewis is a teaching assistant. She explained in her witness statement that she used to work for Sainsbury’s and left in July 1999. She went to the party with Miss Hutchinson. She recalled the bar bill incident, but was some distance away, and did not pay much attention. Sometime after that incident Miss Hutchinson came up to her and said she (Miss Hutchinson) had been pushed out of the way and had hurt her head. Miss Hutchinson seemed quite upset but after a while she calmed down. She (Ms Lewis) did not remain with Miss Hutchinson throughout the entire evening and was not aware where this incident had occurred or who was involved.

Turning to the car park incident, Ms Lewis’s witness statement said that she, Ms Kennett, Ms Ackerman, and Mr Tucker walked towards Ms Kennett’s car. The next thing Ms Lewis knew Miss Hutchinson was not with them. They waited outside for a few minutes but, as it was cold, they got into the car. They sat in the car for a few minutes and Mr Tucker said he would go and find out what was happening. A short while later Mr Tucker came back and said something like, "Your friend’s been hurt. She wants you." She went back to the entrance to the function suite. Miss Hutchinson was in a state, crying, there was some swelling at the side of her nose and she was holding a handkerchief to her face. She said she had been hit by "Steve Meechan’s girlfriend." She said she had tried to telephone the police but the girlfriend stopped her from doing so. Ms Lewis thought Miss Hutchinson said that the girlfriend had put receiver down. Ms Lewis suggested to her that she should call the police but she said she had tried and now wanted to go home. Miss Hutchinson said, "Just get me out of here".

Under cross-examination Ms Lewis said that on the night in question she drank very little. She wouldn’t say Miss Hutchinson drank an awful lot, however Ms Lewis was not with Miss Hutchinson all evening. She remembered Miss Hutchinson having one bottle of beer and a coke.

She said it was ten to one when they went off towards Ms Kennett’s car. They left the premises together. She was walking across the car park when she turned round and Miss Hutchinson was not there. She sat in the car for a number of minutes. It was a bitterly cold night. She had her coat on. Ms Kennett had to scrape the car windows – ice had frozen on the windscreen. Mr Tucker went to look for Miss Hutchinson- they were all waiting for her.

Towards the end of cross-examination Ms Lewis said that it might have been five or ten minutes waiting with Mr Tucker in car. In reply to a question from me she said he was either in the car or just outside.

In most respects I regarded Ms Lewis as an accurate and reliable witness. An area that caused me concern was her statement that she "wouldn’t say Miss Hutchinson drank an awful lot" on the night in question. Ms Lewis did not give this answer with the same confidence as she displayed in other areas of her evidence. I concluded that the answer was strictly accurate in the sense that Ms Lewis did not see all that Miss Hutchinson drank. In that strict sense it was not inconsistent with Ms Kennett’s clear perception that Miss Hutchinson was drunk. I believe that the careful way in which Ms Lewis framed her answer on this point reflects a natural desire to protect her friend.

The claimant gave evidence from the afternoon of Wednesday 17 November until the afternoon of Friday 19 November. She is now 44, and was 39 at the time of the incident. Her witness statement gave her employment history since leaving school at the age of 16. Until 1989 she worked for companies based in the City of London, starting as an office junior and rising to become a PA Secretary. During the early part of this period she was a special constable, initially for the City of London Police and later for the Metropolitan Police. She was looking after her children from 1989 to 1993. From 1993 to 1998 she worked part-time as a cleaner in Woodford Green and in 1998 she began work for Sainsburys, again part-time. The witness statement gave detailed accounts of the bar incident, the stairwell bump, and the car park incident, these being said to have occurred at midnight, shortly after midnight, and between 12.30 and 1 a.m. respectively. What the witness statement said about the detail of these incidents was largely in conformity with the account given by Miss Hutchinson under crossexamination. .

Miss Hutchinson’s witness statement said that following the car park incident she went to a public telephone in the Centre and dialled 999, that before the number connected Miss Morgan slammed the telephone in its cradle, and that after a verbal exchange between her and Miss Morgan, Mr Meechan pulled Miss Morgan away.

Miss Hutchinson added that she picked the telephone up again, made contact with operator and asked for the police when Miss Morgan came towards her again, and on this occasion a security officer moved Miss Morgan away.

The physical injuries described by Miss Hutchinson were a bleeding nose, with painful swelling on the right side, a swollen right eye, pain and bruising to the face, "finger mark" bruising to the left arm, and weal marks or scratches to the neck and right arm. She said that the injuries caused pain in her back and around the back of her neck and breastbone, with bruising under the left eye appearing on 28.3.00. She described limitation of movement in her left arm and shoulder due to significant pain.

Miss Hutchinson said that for the most part these painful physical symptoms have now gone, although there remains some residual physical discomfort affecting movement of the left shoulder. This has required changes in the way she undertakes certain activities.

The effect of the assault on her mind was described by Miss Hutchinson as follows. After the assault she felt physically ill, could not stop shaking, cried incessantly, and could not sleep. She woke fitfully during the night and felt "unrefreshed" in the morning. Every time she closed her eyes she saw Miss Morgan hitting her, even now. She used to experience flash backs 3 or 4 times a day. She tried to keep away from reminders, if she saw anyone who had been at the event she would shake and cry unavoidably. This restricted her social activities and shopping. She had not returned to Sainsbury’s South Woodford branch since September 2000 when she handed in her notice. She avoids watching violence on television, if her partner is watching violence she leaves the room. It is difficult to relate closely to others, she no longer feels happiness or pleasure. Things generally feel flat, she no longer wants to socialise or talk, she feels tense, and is uncharacteristically irritable and watchful. There has been no improvement in any substantial way. After the assault, she had 9 or 10 vodka tonics a day to cope, before she used to drink socially and rarely. By December 2002 she managed to reduce her drinking to the pre-assault level. Before the assault she smoked 15 to 20 cigarettes a day, since the assault there had been an increase to 35 to 40, due to the stressful circumstances. Her whole life feels as if it is turned upside down, she no longer have any confidence. She cannot bear her partner and children too close, her sexual relationship with her partner is virtually non-existent, and she feels guilt at not being a good partner or parent. She struggles to work, raised voices or sarcastic remarks lead to "finding myself in the toilet in floods of tears." It is still difficult to sleep, she is awake after 2 hours and constantly thinks about the whole incident. Her appetite is poor and she has lost a stone in weight. She used to take pleasure in doing her job well, now she is unable to maintain high standards due to lack of motivation. For the last 12 months she has needed 4 to 8 alcopops to fall asleep at night. She sleeps longer at weekends as she is exhausted by lack of sleep during the week. She still has no interest in people. She considered suicide on two occasions, and only drew back at the thought of the effect on her children.

Miss Hutchinson said that informal counselling with a friend had helped for a while but had no long lasting benefits. On the advice of her GP she takes Venlafaxine, but she was concerned she might become addicted. It helped get through her daily routine but did not improve her attitude towards life and quality of life.

Miss Hutchinson’s witness statement also described her employment history after the party. She was away from work for 5 weeks. When she returned she saw Mr Meechan, and this caused a panic attack. The result was that she remained off work for some months. Sainsbury’s moved Mr Meechan to another branch but, said Miss Hutchinson, "By that time it was too late." She said that the psychological condition caused by the assault forced her to resign in November 2000. There was then a period of unemployment for 4 months, followed by 5 weeks as a casual kitchen assistant for the London Borough of Waltham Forest. Miss Hutchinson said she left this job in tears after only 5 weeks, not being able to cope due to stress and depression. Then from April 2001 until she was made redundant on 7.7.04 Miss Hutchinson was employed part-time at Bancroft School.

Miss Hutchinson was cross-examined by Mr Opperman for Miss Morgan. At an early stage she was asked about being made redundant by Bancroft School, and why she had not accepted an offer of alternative work. She maintained that the alternative work was unsuitable. Mr Opperman reminded her that on 15.5.04 she had written a letter to the school in which she said that she wanted the alternative work, but was made to feel not wanted for the position, leaving her no alternative but to decline it. The letter was clearly inconsistent with repeated assertions in evidence by Miss Hutchinson that she did not feel able to do the alternative work. I found Miss Hutchinson’s attempts to explain away this letter unconvincing.

Miss Hutchinson was asked about how much she had to drink at the party. She said that on arrival she was greeted with a buck’s fizz, after which the only alcohol she drank was one vodka tonic and a Budweiser. She denied being drunk. When pressed, she vehemently replied that she was "stone cold sober". She described Mr Gramlick as "merry." She denied that Ms Lewis and Mr Tucker were very tipsy, but accepted in the case of Mr Tucker that it was clear he had had more than one drink.

I bear in mind that on her own account Miss Hutchinson is suffering from severe psychiatric disorder, and plainly found the experience of giving evidence very stressful. Later in her evidence Miss Hutchinson broke down on several occasions. Even making allowances for the difficulties faced by Miss Hutchinson when giving evidence, as between Miss Hutchinson’s assertion of complete sobriety and Ms Kennett’s evidence that Miss Hutchinson was drunk, there is no doubt in my mind that Ms Kennett is right. Ms Kennett had no axe to grind. She had planned to drive home, and so had an excellent reason for remaining sober herself.

On the bar bill incident Miss Hutchinson’s evidence was that at about midnight she was sitting at a table with Ms Kennett when she became aware of a commotion about 12 feet away, looked behind her, and saw Miss Morgan with her hands around Mr Gibbard’s throat.

As to the stairwell bump, Miss Hutchinson said Miss Morgan came through the doorway from the function room, and hit her right shoulder. This knocked her off her balance and spun her round, so that the back of her head hit the wall. She had been walking towards the function room. Her left shoulder may have hit the wall, but she just recalled the impact with her head first. She was shocked, as she was not expecting it. It was not just someone brushing against another person. As she was moving, Miss Morgan came hurriedly, very fast. As to whether it upset her, Miss Hutchinson said her reaction was just "what was happening?" She claimed she was not angry.

Again Miss Hutchinson’s evidence is contradicted by Ms Kennett, who told me that when Miss Hutchinson came back into the function room she was quite angry and clearly upset.

Under cross-examination by Mr Opperman as to the car park incident, Miss Hutchinson said she was leaving the function suite, getting a lift home with Ms Kennett. Miss Morgan and Mr Meechan were coming from the car park. A confrontation took place at the front of the doors to the function suite. She denied going out of her way to approach Miss Morgan and Mr Meechan, and said she did not go up to them deliberately. Miss Morgan was just walking and was not angry.

Miss Hutchinson said that when they were within speaking distance she said to Miss Morgan, "I think you owe me an apology". Without saying anything else and with no reason Miss Morgan started poking her. Miss Hutchinson said that she herself was not being aggressive, on the contrary she had been totally polite.

This evidence about Miss Hutchinson’s own attitude when she first saw Miss Morgan and Mr Meechan in the car park is plainly inconsistent with Ms Kennett’s evidence. I am sure that Ms Kennett is right when she says that Miss Hutchinson behaved in a way that made it obvious that things were about to get out of hand, going over to Miss Morgan and Mr Meechan, and speaking about getting an apology in an angry way.

As to what happened after her request for an apology, Miss Hutchinson’s witness statement described this at paragraphs 13 to 15 as follows:

Under cross-examination Miss Hutchinson said that the poking got harder and harder, and was hurting. The account of events given by Mr Meechan and Miss Morgan (which I shall describe shortly) was put to her, and in all respects where it differed from her witness statement she denied it. She said that ten seconds before the assault Miss Morgan said she was a police officer. Miss Hutchinson said she was in no doubt of this and understood Miss Morgan was threatening to arrest her and that the arrest would be by Miss Morgan. She had no reason to disbelieve that she was an officer. Miss Morgan’s tone was official in that respect. Miss Hutchinson did not recall Miss Morgan showing an ID card, but she [Miss Hutchinson] could have missed it. Miss Hutchinson was focused on Miss Morgan’s face. Miss Hutchinson accepted that she didn’t notice any bruising on her chest area from the poking.

Miss Hutchinson maintained that Mr Meechan was abusive, that Miss Morgan grabbed her by the neck and took her down to the ground, holding her and beating her, pushing her back down to the ground all the time. She fell on to rough tarmac material. She fell on her right side, but did not recall if her head hit the ground first. The right hand side of her nose hit the ground.

Miss Hutchinson’s witness statement said that after returning to the Centre she picked up the telephone in the kiosk and dialled 999. However, before the number connected Miss Morgan approached, took the telephone, slammed it in its cradle and said, "Don’t do this, let’s talk about this." Miss Hutchinson screamed to leave her alone, and Mr Meechan pulled Miss Morgan away. Miss Hutchinson picked the telephone up again, made contact with operator and asked for the police. Miss Morgan came towards her again, and a security officer moved Miss Morgan away. Here too the account given by Mr Meechan and Miss Morgan was put to Miss Hutchinson and she denied it.

There was further cross-examination by Mr Opperman about her physical injuries, and financial losses.

Mr Ley-Morgan for the first defendant asked about the timing of the bar bill incident. Miss Hutchinson said it could have been before 11.45 p.m. but she did not think so. From where she was sitting, it was clear that Miss Morgan was threatening Mr Gibbard and being abusive to him. She did not then know Miss Morgan was Mr Meechan’s girlfriend.

Her witness statement initially said in paragraph 9 that at about midnight she had told Ms Kennett that she was going outside to have a cigarette, and it was as she got up that she became aware of the bar bill incident. Later in the same paragraph, after describing the bar bill incident, the witness statement said she went outside because the bar bill incident might turn unpleasant and there was a risk she might get hurt. In cross-examination she said she was going to go outside anyway.

Mr Ley-Morgan took Miss Hutchinson to a typescript account which she said she had prepared for her lawyers at some stage after March 2001. I shall refer to this document as "the typescript account." It dealt at the end of the first paragraph with the bar bill incident as follows:

The last sentence of this passage was inconsistent with Miss Hutchinson’s evidence about her concern that the incident might turn unpleasant and she might get hurt. Under cross-examination she accepted it couldn’t be more different. She could not explain why the two accounts were so different, but said, "We did carry on talking while incident was going on."

When questioned by Mr Ley-Morgan about the stairwell bump, for the most part Miss Hutchinson gave answers broadly consistent with her previous statements and earlier oral evidence.

However under cross-examination Miss Hutchinson said that when she was at the top of the stairs, outside the entrance doors to function room, there were people thrown out. She explained that she saw security staff leading people. She had not said that in her statements, and indeed she said that her first statement to the police, made on 15.5.00, gave the wrong impression in that it "...suggests that it was after people were thrown out that I went outside function room." Three people were taken out, taken past her. One was Mr Gibbard. She saw one security guard escorting two people, and another escorting Mr Gibbard. One of the men being escorted out was shouting at Mr Gramlick, being abusive. She did not know why she had not put that in any of her statements before. At about 12.15 she was outside the function room having a cigarette, talking to Mr Gramlick. After people were led out, or at that time, Mr Gramlick had come out of the function room to where she was.

Miss Hutchinson then became confused as to the timing of Mr Meechan’s presence in relation to the stairwell bump. When Mr Ley-Morgan asked about this, Miss Hutchinson’s evidence initially was that she would have said Mr Meechan did not see Miss Morgan bump into her, he was coming out when she (Miss Hutchinson) came off the wall. However later in the car park, she had turned to Mr Meechan, and said "You know" – referring to the stairwell bump. This led to the obvious question of how he would know if he had not seen it. After further thought Miss Hutchinson said he could have seen it. She had said to Mr Meechan, "What the hell is going on?" That suggested he saw what happened.

There was an inconsistency in Miss Hutchinson’s statements as to how long after the bar bill incident it was before she went outside to the stairwell. Her statement to the police had said it was very shortly after. The typescript account said 30 to 40 minutes. Miss Hutchinson said that the typescript account was wrong, she had been confused about the time.

Mr Ley-Morgan’s cross-examination then turned to the car park incident. In reply to his questions Miss Hutchinson readily said that the aggression in both the bar bill incident and the car park incident had come from Miss Morgan, and not from Mr Gibbard in relation to the bar bill incident or herself in relation to the car park incident. She accepted that she had not seen Miss Morgan’s warrant card. Miss Hutchinson also accepted that grabbing by the throat is not a recognised police hold, that Miss Morgan was very angry and perhaps not in control of herself, that Miss Morgan was swearing, poking her, and not showing a warrant card, and that all this was not the behaviour of a police officer. Nevertheless Miss Hutchinson believed Miss Morgan was a police officer because of way she said. "I am a WPC".

Miss Hutchinson said she thought Miss Morgan was threatening her with arrest, and was going to arrest her. She did not know why she did not say, "You can’t arrest me." She accepted that Miss Morgan’s words were not "I am going to arrest you," but "I’m going to get someone else in to do it". She did not know, and still does not know, what Miss Morgan meant by section 28. As to telling people, in particular the police, that Miss Morgan was off duty, by this she meant Miss Morgan did not have a uniform on. In the course of further evidence about the assault, Miss Hutchinson accepted that Miss Morgan did not say, "You are under arrest". When Miss Hutchinson said, "I am going to call police", Miss Morgan didn’t say, "There is no need, they’re here, I am the police."

As to events at the Centre after the car park incident, under cross-examination by Mr Ley-Morgan Miss Hutchinson said that in order to end her first call to the police Miss Morgan put her hand on the connection bar. Her witness statement had said that Miss Morgan slammed the telephone down in its cradle. Miss Hutchinson did not know why she didn’t correct it.

Mr Ley-Morgan’s cross-examination turned to the period after Miss Hutchinson went home, and to subsequent events, which I need not address here.

In re-examination Miss Hutchinson told me that the purpose of the typescript account was to give an outline to her solicitors of what happened. Her mental state at that time was disturbed, and her concentration was not very good. There were typographical errors. The account said there had been 30 to 40 minutes between the bar bill incident and going out, this was because of confusion and lack of concentration.

She added that she suffered from visions which were affected by the disciplinary and prosecution failures, but if there had been no assault, these visions wouldn’t have happened. If it had been dealt with properly, it wouldn’t have been as stressful as it wouldn’t have gone on and on. She referred to the stress and the depression, and said that all she kept seeing was a re-living of the event.

I asked Miss Hutchinson why, when she saw Miss Morgan and Mr Meechan, she did not say to herself that it would be better to stay out of the way. Miss Hutchinson replied that she did not know. She had asked for an apology because Miss Morgan had knocked her flying for no reason, and she expected Miss Morgan to give her an apology.

Miss Morgan’s witness statement said that she had always wanted to be a police constable, it was her dream, and she joined the Metropolitan Police on 14.2.99. She passed out of Hendon Police College in February 2000, and was posted to Charing Cross on street duties, an initial probationary period of supervision on the streets. There were 10-15 probationer PCs under the supervision of 1 sergeant, all seemed to go well at first.

After the incident at the Centre she was neither suspended nor the subject of any immediate criticism and carried on as a probationer constable. A complaint came in about May of 2000, and it was at that time that she wrote an entry in an incident report book ("IRB").

I should add here that regrettably the original of the report book could not be found when the Commissioner searched for it. At one stage it may have gone to the CPS, but I had no evidence as to how it came to be lost. Nor did I have any evidence as to what if any attempts had been made by the police to locate Miss Morgan’s pocket book, in which she would have made any contemporaneous notes.

What was available was a copy of relevant pages in the incident report book, but it was clear that parts of the pages copied were missing. Miss Morgan attempted to reconstruct the missing parts. The reconstructed IRB pages are set out in Annex 1 to this judgment.

Miss Morgan was extensively cross examined by Mr Jacobson and Mr Ley-Morgan. For the most part neither of these cross-examinations resulted in any substantial departure from the account given in the IRB. There were some additional points that emerged in oral evidence.

In the course of cross-examination by Mr Jacobson about the car park incident, Miss Morgan referred to the stage when Miss Hutchinson got up off the ground. Miss Morgan said that Miss Hutchinson ran off, and shouted "I’m going to call the police, I’m going to lose you your job." This was as she ran away - or trying to run, it was "clippity-cloppity", towards the building.

In the course of cross-examination by Mr Ley-Morgan, Miss Morgan said that after the incident she spoke to her tutor Constable, and rang up Ilford police station and spoke to a sergeant there. At that stage she did not know there had been a complaint, but she sought advice because Miss Hutchinson had said both she and Mr Meechan would lose their jobs. Both officers said, it’s a drunken incident, and if you wrote up every drunken incident you’d never stop writing. It was George Sinclair at Charing Cross that she spoke to; as to the Sergeant on control panel at Ilford, she did not recall his name.

Miss Morgan’s firm stance in cross-examination was that she was off duty at the party but placed herself on duty during the bar bill and car park incidents when she took action as a police officer.

Miss Morgan said she thought it was Sunday, say 10 a.m., that she rang Ilford police station, this being the nearest police station. The purpose of ringing was that although she was on a street duties course, she didn’t have access to her tutor on Sunday - she had no mobile number. It was her first incident off duty, and she wanted to find out what the procedures were. She might have recorded it in her pocket book.

It is convenient at this point to deal with the evidence of DC George Sinclair, who was called by the Commissioner. He had some recollection of discussing this incident with Miss Morgan. He could not recall specific advice to Miss Morgan about the incident, but if she had said that she showed her warrant card then he would have advised her to write down what happened. It seemed to me that this evidence did not take us any further, as it was by no means clear that Miss Morgan had told him that in the course of the incident she showed her warrant card.

Mr Meechan’s witness statement for these proceedings adopted what he had said in a statement to the police dated 8.12.00. Relevant parts were as follows: 90.1. As to the bar bill incident: "Very late in the evening I was alerted by security to a bar bill problem – I had previously put £500 behind the bar. The man concerned in the dispute was an employee called Steve – I don’t know his last name but he works in the bakery at South Woodford. On approaching him he became instantly abusive – swearing at me – he was very drunk. He then raised his fist – I don’t know if it was his left or right hand and was about to hit me. At this time my (then) fiancee Danielle came over – she had shown her warrant card to the security staff who were also coming over towards us. She then made herself known to Steve – as a police officer – she said, "I’m a police officer." As he went to strike me Danielle grabbed him by the shirt and pulled him away from me. The security guards then led him out of the building."

In a change of order, Mr Meechan was first cross-examined by Mr Ley-Morgan. He accepted that he had refused to answer questions to Sainsburys and to two police officers who came to see him at work, investigating an allegation of assault made by Miss Hutchinson. He said he didn’t have to speak to them, they had not made an appointment, he was running the store as Mr Gramlick was away, and it was inconvenient to see them.

Under cross-examination by Mr Jacobson, Mr Meechan gave evidence consistent with his witness statement and the evidence of Miss Morgan. He was asked about a statement he allegedly had made to Sainsburys. This document was never proved in evidence. I allowed questions about it only to establish whether he accepted that it was a statement that he had made to Sainsburys, or whether he accepted anything said in it. He denied that it was a statement he had made to Sainsburys, and he denied that he had said various of the things it contained. In the absence of any acceptance by him of this document, and with a lack of any evidence of how the document was produced, I ignore it.

Miss Hutchinson gave evidence about her injuries which accorded with her witness statement. She was supported to a greater or lesser extent by her partner Mr Flory, by Ms Lewis, and by her GP’s statement. For the purposes of this part of my judgment, I need only deal with the question whether those injuries could only have arisen from something other than the stairwell bump and her falling to the ground in the car park.

Mr Flory was advised to take photographs of Miss Hutchinson’s injuries. He had no film in his camera, so he used a video recorder. I viewed the resulting videotape. The pictures were indistinct, and offered me no basis for concluding that they must be attributable to some sort of assault. This is particularly so as the night in question was very cold indeed, the ground was frozen, and Miss Hutchinson was wearing a chain around her neck which could well have caused such marks as were visible in the video.

I have no doubt that Miss Hutchinson’s psychiatric condition deteriorated after the incident. I accept the evidence both of Mr Flory and of Miss Hutchinson’s neighbour Mrs Browne. I also accept that Miss Hutchinson finds reminders of the party traumatic: this was distressingly clear when she gave evidence.

I had the benefit of reports and oral evidence from Professor Weller. As his evidence was extensive, I have summarised it in Annex 2 to this judgment.

For the purposes of this part of my judgment, I note that Professor Weller recognised that it must be for the court to determine what happened on the night in question. In broad terms his evidence was that if Miss Hutchinson had not been assaulted in the way she described, then that would put his diagnosis of PTSD in doubt, and he would find it difficult to understand what had caused her symptoms.

Having reviewed all the evidence, I am not satisfied that Miss Hutchinson was assaulted in the way she described.

There were many difficulties with Miss Hutchinson’s evidence, even before hearing Miss Morgan and Mr Meechan give their accounts.

Points from cross-examination by Mr Opperman which I found unsatisfactory were as follows.

Points arising in cross-examination by Mr Ley-Morgan which I found unsatisfactory were as follows.

Having heard Miss Morgan and Mr Meechan, whose evidence remained consistent and unshaken despite searching cross-examination, I believe on the balance of probabilities that their account is likely to be correct. This means that there is a mystery as to the precise cause of the psychiatric symptoms suffered by Miss Hutchinson. I fear that this judgment cannot identify the cause of those symptoms, other than to say that it is likely to have been something other than an assault by Miss Morgan. I hope that Miss Hutchinson may be able to reflect calmly on the fact that even her own witness Ms Kennett was unable to agree with her account on crucial points, and to ask herself whether there may be something else which is causing her problems.

On 17.12.04 I provided counsel with a draft judgment on liability. This comprised paragraphs 4 to 102 above (subject to corrections), followed by an indication that I would hear counsel as to the orders I should make. Paragraphs 1 to 3 of the draft judgment were as follows:

In response to the draft all counsel lodged written submissions seeking rulings on other issues. In addition Mr Jacobson’s written submission, relying on the jurisdiction to do so in exceptional circumstances as recognised in Robinson v Fernsby [2003] EWCA Civ 1820, invited me to alter my conclusion. The essence of his argument on this was that the draft judgment would perpetrate an injustice.

Oral submissions were made by all counsel on 21 December 2004.

I deal with the application to alter my conclusion on liability before turning to other issues.

This was the first matter dealt with in Mr Jacobson’s written response to the draft judgment on liability. He submitted that the signs and symptoms noticed by Professor Weller showed that Miss Hutchinson suffered the alleged assault on 26.3.00 and did not fall as alleged by Miss Morgan. Thus an assault was established on an objective basis, not by placing any reliance on what Miss Hutchinson actually says happened but on her involuntary reactions to any reminder of the assault, no similar reaction being registered in respect of any other matters relating to the occasion in question. The point was made that these are not matters that can be simulated or conjured up as a matter of will. Mr Jacobson claimed that paragraph 95 of the draft judgment accepted that Miss Hutchinson’s psychological condition deteriorated after the incident and that her symptoms stemming from reminders of the party are genuine. Turning to Professor Weller’s evidence, the broad effect of this was said in para 7 of the written submission to have been that:

At the oral hearing on 21.12.04 Mr Ley-Morgan and Mr Opperman opposed Mr Jacobson’s application. Mr Opperman drew my attention to the Court of Appeal decision in Gravgaard v Aldridge & Brownlee [2004] EWCA Civ 1529. Mr Jacobson said that there would be substantial financial hardship to Miss Hutchinson if she had to lodge an appeal. The draft judgment might have rejected Professor Weller’s evidence. The submission on behalf of Miss Hutchinson was not a quibble, which argued about the evidence of one witness against another. The draft judgment had left out of consideration material evidence from the only expert witness.

I indicated that I declined Mr Jacobson’s application for reasons which I would give subsequently. I now give those reasons.

Paragraph 95 of the draft judgment, which was in identical terms to para 95 above, was not intended to suggest, and did not suggest, that I accepted Miss Hutchinson’s evidence on the issue of her psychiatric condition, where it went beyond what was said by Mr Flory and Mrs Browne, nor that I accepted that all alleged "symptoms stemming from reminders of the party" were genuine. I am satisfied that paragraph 95 accepted two things only. First, it accepted Mr Flory and Mrs Browne’s evidence that Miss Hutchinson’s psychiatric condition deteriorated after the party. Second, it accepted that Miss Hutchinson finds reminders of the party traumatic.

As to Professor Weller’s evidence, paragraph 97 of the draft judgment – in identical terms to paragraph 97 above – noted that Professor Weller recognised that it must be for the court to determine what happened on the night in question, that in broad terms his evidence was that if Miss Hutchinson had not been assaulted in the way she described then that would put his diagnosis of PTSD in doubt, and that in those circumstances he would find it difficult to understand what had caused her symptoms.

The suggestion is now made that Miss Hutchinson’s previous medical history and Professor Weller’s expert opinion and findings provided an objective basis for concluding that, despite the unreliable nature of Miss Hutchinson’s evidence generally, there had been an assault on her by Miss Morgan.

I reject this submission. When preparing my draft judgment on liability I reviewed Professor Weller’s evidence in its entirety. I have re-read my notes of that evidence. I continue to think that the observations made at paragraph 97 of the draft, reproduced at paragraph 97 above, accurately summarise what Professor Weller said, so far as relevant to this point. His conclusion is that if Miss Hutchinson had not been assaulted in the way she described he would find it difficult to understand her symptoms. However he readily accepted that it must be for the court to determine what happened on the night in question. I did not understand him to suggest – and it would be contrary to common sense to suggest – that difficulty in understanding psychiatric symptoms should lead the court to reach a different factual conclusion from that which would otherwise be plainly established by first hand oral evidence.

Three further comments arise. First, I have made no finding and do not make any finding as to precisely what has "triggered" Miss Hutchinson’s problems. My findings are simply that the problems described by Mr Flory and Mrs Browne have existed since the party, and that Miss Hutchinson finds reminders of the party traumatic. Second, as to whether Miss Hutchinson suffers from chronic psychological conditions properly so called, I make no finding as to whether she does or not. The inevitable conclusion from my judgment is that Professor Weller has been proceeding on a false basis, for he has taken Miss Hutchinson at her word and has assumed the accuracy of what she has told him about events at the party. This is no criticism of him. However he accepted that his reports were only as good as the information on which they were based. It follows as a matter of logic that those reports cannot compel a conclusion that the information provided to Professor Weller was correct. Third, even if I were to conclude that as a result of the party Miss Hutchinson suffers from a chronic psychological condition, it is not possible to say that such a condition can only arise from an assault of the kind described by Miss Hutchinson. We are not dealing here with an exact science of cause and effect. Indeed Professor Weller very properly accepted that there might well be a substantial body of psychiatrists who would take a different view from his, even on the basis that Miss Hutchinson was giving an accurate account of what occurred.

In a written preliminary response to the draft judgment on liability Mr Opperman indicated that Miss Morgan would seek an order for costs against both Miss Hutchinson and the Commissioner. Mr Opperman acknowledged that the decision whether the Commissioner should bear Miss Morgan’s costs would depend on a finding as to whether Miss Morgan was acting as a police officer. Miss Morgan’s submission was that the Commissioner should have indemnified her from the start of this action.

Mr Ley-Morgan’s written response was that even if Miss Morgan was acting in performance of her duties it did not follow that the Commissioner was liable to pay her costs. Nine reasons were identified. Moreover, the Commissioner wished to make further submissions on the question whether Miss Morgan was acting in the performance of her duties at the material time.

In accordance with directions given at the oral hearing on 21.12.04 Mr Ley-Morgan lodged further written submissions on behalf of the Commissioner. Before dealing with them, however, it is convenient to summarise the key passages from Miss Morgan’s evidence.

Miss Morgan’s witness statement stressed that she identified herself as a police officer to Miss Hutchinson, showed her warrant card, and did not in any way assault Miss Hutchinson. In truth Miss Hutchinson grabbed her, and she pulled away as explained in more detail in her incident report book ("IRB"). The relevant passage from the IRB can be summarised as follows:

Miss Morgan’s witness statement added that at Police Training College she was taught that any incident which would normally involve police action should be dealt with. This applied whether on or off duty, and whether the incident was a criminal matter or an accident. Police officers did not enjoy the normal privilege of switching off once the day’s work had finished. In potentially difficult situations she would rather not intervene if there was no obvious danger, however on this occasion there was.

The evidence given by Miss Morgan about the car park incident in the course of crossexamination by Mr Ley-Morgan can be summarised as follows:

I turn to Mr Ley-Morgan’s written submissions. These dealt first with the question whether Miss Morgan was acting in the course of her duties. At the outset the Commissioner acknowledged that the court had accepted Miss Morgan’s account of what happened during the incident. It was nevertheless submitted that the court was not bound to accept Miss Morgan’s evidence that she considered that she was acting in the course of her duties at the material time.

It is right that the court is not bound to accept that evidence. Nevertheless, I have no hesitation in doing so.

The court was asked to take into account the fact that by the time Miss Morgan came to give evidence she was aware of the potential financial consequences for herself if it were found that she was not acting in the course of her duties. Allowing for that factor, and having considered all points made by the Commissioner, I hold that from the time that Miss Morgan produced her warrant card to Miss Hutchinson she had placed herself "on duty", was acting as a police officer, and was acting properly in that regard.

Particular points were set out by the Commissioner at paragraphs 14(a) to (1) of his written submissions. Taking these in turn:

It was said by the Commissioner at paragraph 15 of his written submission that Miss Morgan’s behaviour immediately "post-incident", her failure to make a contemporaneous note, the content of her IRB and the content of her statement of 22.10.00 all suggest that she did not consider herself to be acting in the course of her duties. It is unclear whether it is sought here to make any additional point to those in the sub-paragraphs of paragraph 14. I have re-read my notes of the evidence of Miss Morgan, the content of her IRB, and the content of her statement of 22.10.00, and remain of the view that from the time Miss Morgan produced her warrant card she considered herself to be, and was indeed, acting in the course of her duties.

Accordingly I reject the Commissioner’s contention that Miss Morgan was not acting in the course of her duties. In the ordinary course Miss Morgan would be entitled to look to the Commissioner to indemnify her for costs she has incurred as a result. However paragraphs 29 to 43 of Mr Ley-Morgan’s submissions contended otherwise.

It was said at paragraphs 30 to 32 that the position must be judged at the time the decision not to indemnify was made. No authority was put forward for this proposition, and I consider it misconceived. In a note circulated to counsel prior to the hearing on 21.12.04 I formulated the relevant question in this way: whether there is any good reason why the Commissioner should not, as Commissioner of the police force in which Miss Morgan is an officer, indemnify her for expenses she has incurred as a result of carrying out her duties, such expenses taking the form of her costs of defending the claimant’s claim, advancing her claim against the first defendant, and defending the claim against her by the first defendant, to be the subject of a detailed assessment if not agreed.

I should make it clear that the principles giving rise to an obligation to indemnify are not dependent on any relationship of principal and agent. It is of course well established that such a relationship does not arise merely because by statute a police constable is under ‘the direction and control’ of the Commissioner. However, given that police constables are statutorily under such direction and control, it seems to me necessarily implicit that they are entitled to be indemnified for reasonable costs incurred as a result of acting under that direction and control.

It may be that Mr Ley-Morgan was led astray by the wording of Mr Opperman’s contention that the Commissioner should have indemnified Miss Morgan "from the start of this action." As a matter of principle, however, the right to indemnity arises because Miss Morgan has incurred costs as a result of carrying out the functions assigned to her by the Commissioner. Whether – either at the start of the action or at any other time - the Commissioner appreciated that she was indeed carrying out such functions, or ought reasonably to have appreciated this, is irrelevant. It would be illogical for entitlement to an indemnity to depend upon the position as it seemed to be at any particular time when the indemnity is sought, rather than upon the question whether in fact the costs in question have been reasonably incurred as a result of carrying out functions assigned by the Commissioner.

In those circumstances I do not propose to make any finding as to what the Commissioner knew when he determined not to indemnify Miss Morgan, nor whether his conclusion was reasonable. Points which might have been relevant to such questions were comprised in the nine reasons given on 20.12.04, and some of these were repeated in paragraph 30. In fact I have no evidence as to the time when that decision was taken, how it was taken, or what was known by those responsible. I was invited to have regard to statements which were not in evidence, but in the light of my conclusions as to relevance I have not sought to ascertain what was in those statements.

Paragraph 33 repeated the earlier assertion that Miss Morgan had been confrontational and argumentative, and said that had she been conciliatory Miss Hutchinson would not have grabbed her and this case would never have arisen. I have examined these contentions in a different context above when considering paragraph 14 of the written submissions. It may be intended to suggest in paragraph 33 that Miss Morgan by failing to be conciliatory acted in breach of her duty to the Commissioner. If so, I reject that suggestion: Miss Morgan’s instantaneous response to Miss Hutchinson was well within the bounds of acceptable behaviour for a police officer.

It is convenient to take next paragraphs 40 to 43, which are concerned with public policy and CPR 44.3. These paragraphs too are misconceived, and again the origin may lie in the way the matter was put by Mr Opperman, who relied upon public policy to support his claim to an indemnity. To my mind no question of public policy arises. The obligation to indemnify arises by operation of law where an individual has reasonably incurred costs as a result of the performance of duties at the direction of another. For the same reason the discretionary principles set out in CPR 44.3 do not come into play: so long as the costs in question were incurred as a result of performing her duties, and were incurred reasonably, Miss Morgan is entitled to reimbursement from the Commissioner.

Thus I consider that Miss Morgan is entitled be indemnified by the Commissioner for her reasonable costs of defending Miss Hutchinson’s claim.

Paragraphs 34 to 39 of Mr Ley-Morgan’s submissions dealt with the Part 20 claims. In my view, however, on this aspect of the case as well Miss Morgan is entitled to rely on the legal principle identified earlier. Her actions in performance of her duties led to her being sued as second defendant in this action, which in turn led to the Commissioner’s Part 20 claim against her and her own Part 20 claim against the Commissioner. Miss Morgan is accordingly entitled to be indemnified by the Commissioner for her reasonable costs incurred in defending the Commissioner’s Part 20 claim, and in making her own Part 20 claim against the Commissioner. In this regard I do not propose to enter into the question whether Miss Morgan was well founded in her contentions by way of defence to the Commissioner’s Part 20 claim and by way of support for her own claim: it suffices that she acted reasonably in making those contentions. I conclude that she did indeed act reasonably in that regard.

Of course if Miss Morgan is able to recover any part of her costs from Miss Hutchinson then credit must be given to the Commissioner for such sums as Miss Morgan actually receives. I shall return to the question of costs at the end of this judgment.

At the hearing on 21.12.04 the parties asked that I make findings on points which my conclusion on liability rendered moot. These were:

It was said that such findings might be relevant to costs or might be needed in the event that there were a successful appeal against my conclusions on liability. Given that these issues were hypothetical, I asked whether I should proceed on the footing that I treat Miss Hutchinson as a witness who has given the court an accurate account of all that has occurred. Mr Jacobson submitted that I should. Mr Ley- Morgan submitted that I should not, but rather should make my own judgment. Thus he said that in assessing damages I was entitled to be influenced by my conclusion that Miss Hutchinson had not given an accurate account. Mr Opperman agreed that I should not proceed on the footing that Miss Hutchinson was a witness who had given the court an accurate account of all that had occurred. He had not come across a case where findings as to credibility on liability were said to vitiate the alternative findings on quantum.

I have concluded that I must resolve this dispute in the manner suggested by Mr Jacobson. I have grave reservations as to whether resolving any of these hypothetical issues is a justifiable use of court time. If my finding on liability is held by the Court of Appeal to be wrong, it seems to me that the resolution of remaining issues may well depend on the extent to which my rejection of Miss Hutchinson’s evidence is held to be incorrect, and the reasons for any such conclusion. I can well understand that if after trial of all issues a defendant wins on limitation then the court might nonetheless make hypothetical findings on questions of breach of duty and damages, for the decision on limitation is unlikely to involve a finding as to the accuracy of the claimant’s account of events. Where, as in the present case, the court concludes that the defendant wins on liability and holds that the claimant’s account of events cannot be relied on I find it difficult to see how the court can usefully resolve hypothetical questions which depend on the reliability of the claimant’s account. I am, however, reluctantly prepared to attempt this exercise on the footing that Miss Hutchinson has given the court an accurate account of all that has occurred, as that does not require me to speculate on the extent to which my reasons for rejecting her evidence may or may not be upheld in the Court of Appeal.

Accordingly I deal in turn with each of hypothetical issues (a) to (f) on the footing that Miss Hutchinson has given the court an accurate account of all that has occurred. I shall then deal with points made on costs in the parties’ written submissions.

This is hypothetical issue (a). Section 88(1) of the Police Act 1996, entitled "Liability for wrongful acts of constables", provides so far as material:

The words in square brackets were substituted with effect from 1 October 2002 by s 102 of the Police Reform Act 2002. Prior to that Act s 88 of the 1996 Act referred only to torts. Nothing turns on these amendments for the purposes of the present case.

All parties agreed that so far as liability under s 88 was concerned the issue was whether at the time of the alleged assault Miss Morgan was acting either in performance of her duties or in the purported performance of her duties.

In Weir v Chief Constable of Merseyside [2003] ICR 708 an off duty police officer, PC Dudley, borrowed a marked police van without permission to help his girlfriend move house. The claimant appeared to be rummaging through his girlfriend’s belongings. PC Dudley, having previously indicated to the claimant that he was a police officer, manhandled him down the stairs, threw him into the back of the police van and said that he was going to take him to the police station. At paragraph 12 of the judgment the Court of Appeal said:

Mr Jacobson submitted that it was immaterial to the Court of Appeal’s decision whether the officer in question was in fact justified in taking hold of Mr Weir. There was an apparent action in his capacity as a constable because he had confirmed to Mr Weir that he was a police officer and Mr Weir had understood that to be the case.

Bernard v Attorney General of Jamaica (Privy Council Appeal No. 30 of 2003) was also relied on by Mr Jacobson. The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced "police" and demanded the phone. The man was in fact a police officer. The officer added that he wanted to make a long distance call and told the claimant to let go of the phone. The claimant refused. The officer slapped his hand and then pushed him. When the claimant still refused to let go of the phone the officer pulled out a service revolver and shot him in the head at point blank range. The claimant was rendered unconscious. When he awoke he found himself in a hospital bed surrounded by police officers including the officer who had shot him. The officer arrested him for assaulting a police officer and handcuffed him to the bed.

It should be noted that Bernard is concerned with a different statutory regime, police officers in Jamaica being employees of the Crown, and the Crown being exposed to vicarious liability for their actions. The Privy Council held that a feature of prime importance on the facts of that case was that there was a purported assertion of police authority, and applying the principle embodied in Lister v Hesley Hall Ltd [2002] 1 AC 215 concluded that the Crown was vicariously liable.

Mr Jacobson drew attention to the fact that although the officer was treated as not on duty at the material time, the officer said "police" as a pretext to persuade the victim to allow him precedence. The shooting had followed immediately upon the constable’s announcement that he was a policeman, and the arrest at the hospital was retrospectant evidence suggesting that the constable purported to act as a policeman immediately before he shot the victim.

Mr Jacobson said that this case was in the same category as Weir and Bernard. Miss Morgan had introduced herself as a police officer, had threatened the claimant with arrest and had then attempted to carry out the threat or to use excessive force. There would have been no need for any retrospective arrest in this case because by introducing herself as a police officer together with a threat of arrest there was sufficient to show that Miss Morgan was apparently exercising her authority as a constable, albeit badly. As had been said by Lord Millet in the case of Lister, cited in Bernard, it is no answer to say that the employee was guilty of intentional wrong doing or that his act was not merely tortuous or criminal or that he was acting explicitly for his own benefit or that he was acting contrary to express instructions or that his conduct was the very negation of his employers duty.

Mr Ley-Morgan submitted that Weir was a case where the officer had purported to exercise his lawful power of arrest. As to Bernard the shooting followed immediately upon the officer’s announcement that he was a policeman, which in context was calculated to create the impression he was on police business. The officer’s act in arresting the claimant in the hospital was retrospectant evidence that he had purported to act as a policeman immediately before he shot the claimant, and the police authorities had routinely allowed officers to take loaded service revolvers home and to carry them while off duty, thereby creating the risk that they might be used in an inappropriate way. The officer had purported to use lawful force (albeit disproportionate) upon the claimant because he was interfering in the execution of his duties as a police officer. It was of critical importance that at the first available opportunity, the officer purported to exercise his power of arrest.

In Makanjuola v Commissioner of Police for the Metropolis (1990) 2AdminLR 214 a plain clothed off duty police officer gained entry to premises by production of his warrant card. When there he proceeded to make enquires regarding the immigration status of the two residents. He informed the residents they were in breach of the immigration regulations, and demanded sexual favours, which the female resident acceded to, in return for his refraining from reporting the irregularities. Henry J determined that the Commissioner was not liable for the actions of the officer under Section 48(1) of the Police Act 1964 (which is identical to Section 88 of the 1996 Act). It was common ground that the expression "police functions" referred to" the ordinary police functions of investigating, preventing, discovering and reporting crime, including the power of arrest". The first defendant contended that the same approach should be applied in this case. As to "purported", Henry J held that this meant "in the professed performance of his functions." His judgment also used the expression "pretending to be acting in the course of his employment". Obtaining entry to the premises by identifying himself as a police officer and going on to make enquires was in purported performance of his police functions, and a statement by the officer that he intended to arrest, report, warn or take no further action would also be in purported performance of his police functions. However, this case was not concerned with something which a police officer might in certain circumstances be entitled to do, but something which the resident could never have believed was or could have been done in the performance of his duty, it being clear to her as it would have been to anyone else, that the demand for sexual favours was one which no one could make as a police officer.

Applying these principles to the account given by the claimant in the present case, Mr Ley- Morgan said that actions of Miss Morgan before she identified herself as a police officer could not lead to liability under Section 88, as she was neither acting nor purporting to act in the performance of her police functions. This meant the Commissioner could not be liable for the initial poking of the chest. As to her identifying herself as a police officer, the reasoning in Makanjuola makes clear that this does not mean that the first defendant is automatically liable for any assault that occurs thereafter. On the claimant’s version of events, it was difficult to see what police function Miss Morgan was purporting to exercise. She had simply identified herself as a police officer as a means of emphasising that she would not give an apology. There then came the point at which the subject of arrest was mentioned. The evidence on that was insufficient to conclude that Miss Morgan actually threatened the claimant with arrest (whether by herself or other officers) or that if she did, the claimant ever believed that she would carry out that threat. Alternatively, the forcing of Miss Hutchinson’s arm up behind her back and restricting her freedom of movement was not a purported exercise of a power of arrest. Miss Hutchinson described Miss Morgan has having simply attacked her. As a matter of common sense, this was a pure assault; a restriction of movement during a very short assault would stretch the concept of arrest beyond breaking point. Miss Morgan made no attempt at the time or subsequently to justify her actions on the ground that she had been exercising her lawful power of arrest (which was said to distinguish the case from Weir and Bernard). After the assault Miss Morgan made no attempt, either verbally or physically, to stop Miss Hutchinson moving away. The restraining hand was placed on the arm in response to Miss Hutchinson saying that she was going to call the police, not as a means of confirming that Miss Hutchinson was under arrest. No reasonable person who watched the incident unfold could have thought that such an assault by Miss Morgan was in performance of her police functions. The only reasonable inference to be drawn from Miss Morgan seeking to prevent Miss Hutchinson from calling the police is that Miss Morgan knew she had not purported to arrest Miss Hutchinson.

Mr Ley-Morgan added that Miss Morgan’s failure to make any contemporaneous record of the incident demonstrated that she considered she was neither performing nor purporting to perform her police duties. In her statement of 22 October 2000 Miss Morgan referred to herself as being "off duty" at the time of the assault. The truth of the matter was said to have been pleaded at paragraph 5(4) of the particulars of claim – Miss Morgan simply lost her temper and when she attacked Miss Hutchinson she was not purporting to exercise any police power. While the court might be sympathetic to Miss Hutchinson, the courts should adopt the approach of Henry J in Makanjuola : the matter was not one of sympathy or policy but one of construction of the statute.

Mr Opperman in submissions on behalf of Miss Morgan submitted that the evidence was against the Commissioner’s submission that he was not responsible for Miss Morgan’s actions. Citing Bernard he said it was hard to think of a more extreme act than that that was done by the Jamaican officer – namely shooting of a civilian for failure to give up a phone – and yet the officer’s superiors were vicariously liable.

Proceeding on the basis that Miss Hutchinson is a witness who has given the court an accurate account of all that has occurred, I agree with Mr Ley-Morgan that actions of Miss Morgan before she identified herself as a police officer would not in this case lead to liability under Section 88. Thus the Commissioner would not be liable for the initial poking of the breastbone described by Miss Hutchinson. However, I would have held that the Commissioner was liable under s 88 for the actions of Miss Morgan once she said she was a WPC. The words described by Miss Hutchinson as being used by Miss Morgan are words which in my view would indicate that Miss Morgan was purporting to perform her police duties. Mr Ley-Morgan’s contentions as to what may have been in the mind of Miss Morgan do not detract from this fact. An objective observer seeing the events described by Miss Hutchinson would say that this was a case like Weir : Miss Morgan would on these facts be apparently acting as a constable, albeit one who was behaving badly. A precise examination of whether the words used amounted to a threat to arrest seems to me unnecessary: the plain implication from Miss Morgan identifying herself as a police officer was that from that time onwards she was acting officially. In any event, on the hypothetical basis here adopted I must assume that Miss Hutchinson believed that there was a threat to arrest, and on the same basis I would have considered that belief to be objectively reasonable.

I would have distinguished Makanjuola from the present case. There the police officer’s actions went completely outside the range of conduct that police officers could in certain circumstances perform. By contrast, the actions alleged in the present case might in certain circumstances be necessary: they were unlawful because on the hypothetical facts in the present case they would have been wholly inappropriate.

This is hypothetical issue (b). I can deal with it shortly. If I were proceeding on the basis that Miss Hutchinson was a witness who had given the court an accurate account of all that occurred, I would inevitably have accepted her evidence that the assault caused the injuries she has described. For the same reason I would have rejected any suggestion that she caused or contributed to those injuries.

This is hypothetical issue (c). On this hypothesis, Professor Weller was given an accurate account of events by Miss Hutchinson, and I would have accepted his evidence that her personal history is likely to have made her unusually susceptible to PTSD. I would also have accepted his evidence that events subsequent to the assault were unlikely to be separate stressors: once the assault had brought about PTSD Miss Hutchinson’s ability to cope was impaired, and things which previously would not have had a significant affect on her mood and conduct became problematic. In any event, I would have held that adverse effects of the problems which arose in the course of the criminal and disciplinary proceedings, the stress of the civil litigation, and the later employment problems all flowed from the assault.

I add that I would not have reached these conclusions without hesitation. I do not think it was enough for Professor Weller merely to have said in his report that it was arguable whether the index episode satisfied the diagnostic criteria for PTSD. He ought to have set out the arguments against such a conclusion.

Nevertheless the arguments against such a conclusion were fully canvassed in cross-examination of Professor Weller. The literature did not show a previous case of this kind. While that is a strong point, it would not in my view have outweighed the factors identified by Professor Weller as pointing to a diagnosis of PTSD in this case. Diagnosis of PTSD is a developing field, and one could not expect all cases to have been documented in the literature to date. Moreover, on the hypothetical basis adopted for present purposes, grave symptoms described by Miss Hutchinson occurred from the time of the assault and have continued; those symptoms are to a substantial degree associated with reminders of the assault. Whether they are properly described as PTSD or not, I would have to proceed on the basis that they existed and continue to exist. On the hypothetical basis adopted for present purposes, I can see no reason to think that they would cease to exist in the foreseeable future.

As to whether Miss Hutchinson had contributed to any of her psychiatric injuries, on the hypothetical basis adopted for present purposes I would not have considered that such failings as have been identified by the defendants could be blamed on Miss Hutchinson given what she has said about the impact of events on her.

Professor Weller said that Miss Hutchinson would in any event have been likely to suffer from depression as a result of events such as the death of her mother. This seems to me completely different in degree from the symptoms Miss Hutchinson describes as following on from the assault. On the hypothetical basis adopted for present purposes I would not have regarded this as something which should be taken account of when considering Miss Hutchinson’s claim for psychiatric injury.

This is hypothetical issue (d). At my request the parties prepared a Scott Schedule identifying the points in dispute. My hypothetical resolution of relevant points, on the basis that Miss Hutchinson is a witness who has given the court an accurate account of all that has occurred, appears in the Hypothetical Scott Schedule at Annex 3.

This is hypothetical issue (e). My hypothetical resolution of relevant points, on the basis that Miss Hutchinson is a witness who has given the court an accurate account of all that has occurred, appears in the Hypothetical Scott Schedule at Annex 3.

This is hypothetical issue (f). My hypothetical resolution of relevant points, on the basis that Miss Hutchinson is a witness who has given the court an accurate account of all that has occurred, appears in the Hypothetical Scott Schedule at Annex 3.

The Commissioner sought costs from Miss Hutchinson. Miss Morgan sought costs from both Miss Hutchinson and the Commissioner. I have set out above my reasons for concluding that the Commissioner is liable to indemnify Miss Morgan in that regard. That does not mean that she cannot claim costs from Miss Hutchinson. Miss Morgan has succeeded in her defence to Miss Hutchinson’s claim, and the Commissioner has likewise succeeded in his defence to Miss Hutchinson’s claim. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. Application of the general rule would mean that Miss Hutchinson should pay the costs of the Commissioner and the costs of Miss Morgan.

In written submissions dated 20.12.04 Mr Jacobson on behalf of Miss Hutchinson contended that if I found that the Commissioner would have been vicariously liable for the acts or omissions of Miss Morgan, then Miss Hutchinson should not be liable to pay Miss Morgan’s costs or alternatively should not be liable to pay 2 sets of defendants’ costs. Mr Ley-Morgan in his submissions of 5.1.05 responded that on the court’s findings the claim should not have been brought against either defendant, this was not a case of one defendant joining another, and that the Commissioner acted reasonably in adopting a neutral stance on the facts of the alleged assault while denying vicarious liability. Mr Jacobson’s submissions in response dated 14.1.05 said that Miss Hutchinson joined Miss Morgan as second defendant only because the Commissioner denied vicarious liability, a position which the authors of a leading text had said was unlikely to arise in practice. Although the Commissioner had concluded there were inconsistencies in Miss Morgan’s account of putting herself "on duty", the fact remained that she was acting under his direction and control. It would have been appropriate for the Commissioner to conclude that on both the respective versions put forward by the two sides Miss Morgan was acting under his direction and control at the material time. On this basis it would have been for the Commissioner to decide whether to settle with Miss Hutchinson or go to trial on the evidence of Miss Morgan. In the latter event in the course of the trial the Commissioner, "like any employer, would experience the benefits, the burdens, the surprises and disappointments of the trial process."

I consider that Mr Jacobson’s submissions over-simplify the position. It is true that on the hypothetical basis that I treat Miss Hutchinson as a witness who has given the court an accurate account of all that has occurred, my conclusion would be that the Commissioner was liable under s 88 for the assault described by Miss Hutchinson. However, it was by no means clear prior to trial – or indeed during the trial - that I would be bound to accept the entirety of Miss Hutchinson’s evidence. On the contrary, there was in my view a respectable case to be made to the effect that Miss Hutchinson had exaggerated the degree to which Miss Morgan presented herself as acting as a police officer. If that case was born out by the evidence at trial, then the Commissioner would not be liable under s 88, nor would he necessarily be liable to indemnify Miss Morgan. In my view the Commissioner was reasonably entitled to probe witnesses at trial for this purpose.

Accordingly I conclude that there is no reason to do anything other than apply the general rule, with the result that Miss Hutchinson should be ordered to pay the costs of both the Commissioner and Miss Morgan. So far as the Commissioner is concerned those costs will include his costs of putting forward the contentions he advanced in making his Part 20 claim and defending Miss Morgan’s Part 20 claim. So far as Miss Morgan is concerned those costs will include her costs of putting forward the contentions she advanced in making her Part 20 claim and defending the Comissioner’s Part 20 claim. I consider that it was reasonable for each of them to have put forward those contentions.

This claim by Miss Hutchinson fails. At the specific request of the parties I have set out hypothetical conclusions on issues other than liability. Those hypothetical conclusions do not affect the orders which I would otherwise have been minded to make on costs.

I will hear counsel on the appropriate form of orders to be made in the light of this judgment.