Mohidin & Ors v Commissioner of the Police of the Metropolis & Ors

With the agreement of the parties, I am dealing with this matter on the basis of substantial and helpful written submissions.

I shall deal with this matter as follows:

Introduction: the main judgment and the orders made since

On 2nd October 2015 my judgment (“the main judgment”) was handed down in respect of the claims made by the three Claimants against the Defendant Commissioner (Mohidin & Anor v Commissioner of the Police of the Metropolis & Ors [2015] EWHC 2740 (QB)). I dismissed the claim of the Third Claimant but gave judgment for the First and Second Claimants against the Defendant.

The claims by all three Claimants related to an incident involving officers deployed in a TSG carrier of the Defendant on 1^st June 2007. The Additional Parties were four of the six police officers so deployed. Although three of them (the Third Party Mark Jones, the Fifth Party William Wilson and the Sixth Party Neil Brown) are no longer police officers, I shall where appropriate refer to them by the ranks they then held. As set out at paragraph 4 of my main judgment I set out the nature of the claims, in the order of occurrence:

The Defendant had issued claims against the Additional Parties pursuant to section 1 of the Civil Liability (Contribution) Act 1978 (“CLCA 1978”) and successfully applied to join them as parties pursuant to CPR Part 20.7. They therefore became parties to the two actions by virtue of CPR Part 20.10, but were not sued as Defendants by the Claimants or any of them, nor joined as Defendants to the Claimants’ claims or any of them.

In the event, I dismissed the claim of the Third Claimant (Ahmed Hegazy) against the Defendant, but gave judgment for the First and Second Claimants (Omar Mohidin and Basil Khan) against the Defendant. I awarded Omar Mohidin damages of £2500, and Basil Khan damages of £11,950. At paragraph 317 of the main judgment, I set out a summary of my findings on the allegations made:

“i)

Omar Mohidin was forced into the van, and thus the subject of a battery, and falsely imprisoned for a few minutes, during which time he was abused verbally by PC Jones, including racist abuse;

ii)

While the search of Ahmed Hegazy was unlawful, his violent conduct and threats were such that he was then lawfully arrested. Any injuries he sustained were as a result of his unlawfully resisting arrest. He was not assaulted. He was not falsely imprisoned. Ms Gerry expressly conceded that the claim under the Race Relations Act stood or fell with the claims for assault and false imprisonment. I find in any event that he was not the subject of racist abuse;

iii)

Basil Khan was not lawfully arrested, as he had not uttered threats to kill. He did not make any threats to PC Jones, or assault him, but was abused and struck by Sergeant Wilson, and then struck and abused by PC Jones, who also grabbed him round the neck, causing difficulties in breathing. He was then forced by PC Jones to kneel with his hands in handcuffs behind his back, both within the van en route to the Police Station for about 5 minutes, and then thereafter for about 20 minutes without any justification whatever, but for the purposes of humiliation. Sergeant Wilson chose to allow PC Jones to behave as he did in the van, and was also a party to Basil Khan's continued humiliation in having to kneel handcuffed in the van. It follows that he was falsely imprisoned until his release the following day. I find that PC Jones used racist abuse towards him. His being strip searched only came about because PC Jones had given false information about the reasons for his arrest. I accept that the Desk Sergeant genuinely thought that he was old enough to be strip searched.”

As set out above, I found that PC Jones was solely responsible for what happened to Omar Mohidin. In the case of Basil Khan, I found that PC Jones was responsible for his wrongful arrest. Thereafter both the Fifth Party Sergeant Wilson and the Third Party PC Jones assaulted him. I also found that what PC Jones did to him in the van was done with the knowledge of Sergeant Wilson, who was also a party to Basil Khan’s further humiliation through his being made to kneel on the floor while handcuffed. His further detention at the Police Station flowed from his false arrest, but I also found that PC Jones made false claims to the Desk Sergeant about what Basil Khan was alleged to have done.

The awards of damages made to the successful Claimants are described in the main judgment at paragraphs 360-392, and in particular paragraphs 362-3 (the assessment of damages for their false imprisonment) and 376-378 (damages for the humiliation and distress suffered by Omar Mohidin) and 379-384 (damages for the injury, humiliation and distress suffered by Basil Khan).

Since judgment was given, orders have been made as follows as between the three Claimants and the Defendant. Neither was the subject of dispute. It should be noted that the principal terms were put before the Court by consent. The reservations in Paragraphs 8 and 3 respectively were added by the Court.

The claims for indemnity and contribution

The Defendant accepts that he must pay the reasonable costs of the Fourth and Sixth Parties (PC Steven White and PC Neil Brown) of their defending the Defendant’s claims against them.

The Defendant contends that in the case of the Third and Fifth Parties (PC Mark Jones and Sergeant William Wilson):

The case for the Defendant

The Defendant Commissioner was sued on the basis that those responsible for the torts inflicted on the Claimants were officers of the Metropolitan Police. By s 88 of the Police Act 1996 (“PA 1996”) and s 32 of the Race Relations Act 1976, he is liable in respect of any unlawful conduct and/or racial discrimination by any of his officers in the performance or purported performance of their functions. However, by virtue of sections 1 and 6 of CLCA 1978 he may recover a contribution from the relevant Additional Parties on the basis that they are liable in respect of the same damage. The claim may be made notwithstanding the fact that judgment has been entered against him (see section 3 of CLCA 1978).

The Defendant did not make a positive case against the Claimants in the two main actions. In his claim for a contribution or indemnity, he stated (see for example paragraphs 2-3 of the Additional Claim made by the Defendant in the case of Omar Mohidin and Basil Khan) that he was unable either to admit or deny the main allegations made relating to the conduct of the police officers, but if he were to be held liable, he claimed an indemnity (or alternatively a contribution) in respect of the claims, and to his costs of defending the claim and of bringing the Additional Claim against the Additional Parties. He now contends in the context of that claim that there were clear findings in the main judgment at paragraphs 317 against the Third Party PC Mark Jones and the Fifth Party Sergeant William Wilson, as set out above, that they were responsible for the unlawful tortious conduct there described. Reference is also made to paragraph 300 of the main judgment, where I found that both had lied about the events in question.

The Defendant explains the course of action he adopted by saying that this was a case where the Defendant was unable to assert a positive case about what had happened in the van, as one of his serving officers (PC Onwugbonu) gave evidence which supported the case for the three Claimants, and the Additional Parties were all also serving officers at the time. One was still a serving officer, who did not support the case for the three Claimants (PC Steven White), as were other officers on the van (PC Giles Kitchener and PC Simon Prout) who were not joined as Additional Parties.

However the Defendant contends that while he adopted a neutral stance on the issue of liability to the Claimants, he was entitled to use the additional claims procedure under CPR Part 20, so that he could be indemnified (in whole or in part) under s 1 CLCA 1978 against any liability found by the Court for any wrongful acts committed by any of the Additional Parties, together with the costs of defending such claims.

The Defendant contends that

The case for the Additional Parties

The Additional Parties contend as follows

The responses for the Claimants

The First and Second Claimants submit that the arguments raised by the Defendant and Additional Parties on whether costs were properly incurred and were proportionate, should be addressed at the stage of detailed assessment pursuant to CPR 44.3-4. That is particularly apt when the Defendant has consented to the award of costs against him in relation to the claim, and in some measure on an indemnity basis. Arguing such matters at this stage would be disproportionate and would require an oral hearing of some two days.

It is also contended that the points taken are misconceived:

The Third Claimant submits that

Response by Defendant

In response to the Additional Parties’ submissions the Defendant makes the following submissions;

Discussion and Conclusions

I shall deal firstly with the issues about whether or not there should be an indemnity or contribution made by the Third and Fifth Parties (Mark Jones and William Wilson). I shall then deal with the issues that have arisen about costs.

The starting point is to recall that these were proceedings brought by the three Claimants against the Defendant. He then elected to make claims against the Additional Parties pursuant to CLCA 1978 and Part 20 of CPR. This is not a case where the Additional Parties have been brought into the action as Defendants to the claims of the Claimants, and as the Additional Parties’ submissions point out, joinder of the police officers concerned in such a case via a CLCA 1978 process is by no means the sure consequence of a claim being made against a Chief Constable or (in London) the Commissioner.

It is of course inevitable in a case such as this, where allegations of misconduct are made against named officers, that if CLCA 1978 proceedings are taken against them, then their participation in the action, including the trial process, will be substantial. It was an obvious consequence of their being made the subject of indemnity and contribution notices, and joinder under CPR Part 20 that the proper conduct of their case would involve their challenging the cases made by the Claimants. The Defendant must have been alive to that when deciding to issue the claims for indemnity or contribution within the action as it proceeded.

There is agreement between the Defendant and the Additional Parties that the law permits the claims made against them by the Defendant. That must be so given the terms of sections 1 and 6 of CLCA 1978. The First and Second Claimants could have sought redress from the Additional Parties, and on the basis of the findings made in the main judgment, the First Claimant Omar Mohidin would have succeeded in obtaining judgment against the Third Party Mark Jones, and the Second Claimant Basil Khan would have succeeded in doing so against both the Third Party Mark Jones and the Fifth Party William Wilson. Further, the Defendant could have awaited the outcome of the proceedings brought by the Claimants, and then issued his claim under CLCA 1978.

It follows in my judgment that the test to be applied is that in section 2 of CLCA 1978, whose terms bear repeating:

“2

Assessment of contribution.

(1)

Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

(2)

Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

While the issue of what is just and equitable is relevant, it is so within the confines of the discretion set out in subsection (1) – i.e. having regard to the extent of the person’s responsibility for the damage in question. That is reflected in the passage, relied on by the Defendant, in the judgment of Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426@445H:

“the extent of a person’s responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance.”

In my judgment, the current means of the persons from whom the indemnity or contribution is sought cannot be relevant to the issue of the indemnity or contribution to the damages claim. Had the Claimants sued the Additional Parties as Defendants, it would have been no answer to the claim that the Additional Parties were indigent. It may be a reason why a commercial decision would have been taken not to issue proceedings, but it cannot affect the entitlement of a party to a judgment if the relevant cause of action and infliction of recoverable damage are proved.

I am invited to address how it was that the Additional Claims came about. The Defendant has explained why he adopted a neutral stance. In my judgment, he could have decided to rely on the evidence of the Claimants and PC Onwugbonu, as he did for the purposes of the criminal trial, or relied on that of and called by the Additional Parties. Had he done the former, he would have been bound to concede liability in the action, albeit perhaps not the quantum of damages sought, and he could then have issued proceedings for an indemnity or contribution. Had he done the latter, he would have contested liability as well as quantum. He opted for the middle way of resisting liability but without calling evidence on what occurred in the TSG carrier, and without accepting the evidence of and called by the Claimants or that of and called by the Additional Parties. However, as the main judgment records, he did call evidence of importance, which rebutted the case for the Additional Parties that Basil Khan’s first complaint was somehow suggested to him.

It is possible to have different views about that approach. But it was not unlawful, and the fact remains that the evidence called at trial proved that two of the Claimants should succeed in their action, having proved serious tortious misconduct by two of the officers. Had the two successful Claimants sued the officers as Defendants, they would have succeeded against them, and recovered damages and costs. The fact that the Defendant adopted an unusual approach does not of itself make the orders he now seeks unjust or inequitable in the context of the test in section 2 of the 1978 Act. One may test that. If he had admitted liability, he would still have been able to seek an indemnity or contribution under CLCA 1978. Had he mounted a positive case against the Claimants but lost, he would still have been able to seek that indemnity or contribution. I find it hard to see why the course he adopted alters the justice or equity of whether an indemnity or contribution should be made. The critical question under CLCA 1978 is whether the Third and Fifth Parties were responsible for the torts inflicted and the damage caused, not the choice of permissible route by which that responsibility was established.

Of course the Defendant’s approach involved him running the risk that if one of the claims made against him failed, he would still have been responsible for bringing the Additional Parties into the action, and could be ordered to pay the Additional Parties’ costs of his doing so.

I am similarly unpersuaded by the Additional Parties’ suggestions that there is some policy reason why an order should not be made. Although some arguments about abuse of process were mounted in the pleadings by the Additional Parties, and in their written statements of evidence, and in written submissions by the Claimants before trial, none were advanced before me at trial. (The First and Second Claimants put it on the basis that it was unreasonable for the Defendant to act thus. Although they have now contended in written submissions on the draft of this judgment that they were not arguing that there was an abuse of process as such, an argument about “reasonableness” could only be relevant in an action such as this if it was directed to the same point.) At the start of the trial, I raised my concern that that was not a matter justiciable before me at the trial. Counsel for both the Additional Parties and the Claimants did not abandon their cases on this issue at that stage, but it was made plain to me after the evidence and in submissions that the Additional Parties were no longer taking the point. In any event, I consider that such arguments would have been misconceived. Neither the CLCA 1978 nor the PA 1996 prevents, restricts or otherwise constrains the ability of the Chief of Police to obtain a contribution or indemnity from an officer or officers whose misconduct has led to his having to deal with a claim for which he is responsible under section 88 of the PA 1996. No authority has been placed before me which suggests that any such rule exists. The most that has been argued is that a Home Office Circular supports the approach that officers who are sued successfully for damages should in most cases expect to be repaid for the costs involved in resisting the proceedings, if they have acted in good faith and acted reasonably. But even if that was an apt description of the officers’ conduct here, that cannot amount to a defence to this claim of the Defendant. It has no effect on the question asked under the CLCA 1978, of whether an indemnity would be “just and equitable having regard to the extent of that person’s responsibility for the damage in question.” It has nothing to do with the sole relevant issue under section 2(1), that of responsibility for the damage.

Unless the issue of the proceedings by the Defendant was impermissible legally (which no-one suggests) then the arguments of the Additional Parties can only go to whether the Defendant should have decided to issue the claims for indemnity or contribution. If that is justiciable, it is not so within the context of these proceedings before me. There is also no claim before the court of which I am aware in judicial review (and that is in no sense to be read as any form of suggestion that one might exist). I express no view on its relevance to any proceedings before the Employment Tribunal. I am also unpersuaded that a rule of law, let alone practice endorsed by the Courts, exists by which officers who have behaved unlawfully towards members of the public, and inflicted damage upon them, can then avoid civil liability for their wrongs should proceedings be taken against them.

But even if I were to accept that I have jurisdiction to consider whether it was reasonable for the Defendant to issue these claims, I have no doubt that it was. I also find that the arguments of the Third and Fifth Parties are quite unpersuasive. I reach those conclusions for the following reasons;

The Additional Parties say that I have a complete discretion. In my judgment, I certainly do not have an unfettered one under section 2(1) of CLCA 1978, for the reasons already given. Although the Additional Parties did not put their argument in the context of section 2(2) as such, I am not persuaded that the use of the word “may” in that subsection gives the court the wide discretion which the Additional Parties claim. In my judgment it is still governed by the context set out in section 2(1). But even if it does give the Court the wider discretion contended for, I would not exercise it against ordering an indemnity. My reasons for that view are first those given in paragraph 34 above, and second that, as noted in paragraph 33, the effect of such an approach would be to absolve the Third and Fifth Parties from liability in this case, when had they been sued directly they would have been held liable. In the context of this case that would be unjust and inequitable. It was their conduct that caused the damage and that of no-one else.

I turn now to the issue of the percentage split. In doing so, I apply the same test from CLCA 1978;

Since I issued my draft judgment in this matter, the Additional Parties have submitted that, for the reasons given by me in relation to the choice of the basis of costs (see below), I should not award an indemnity so far as the 10 % uplift of the damages under CPR 36.17(4) (d) is concerned, as set out in the order at paragraph 9 above relating to the claim of the First and Second Claimants. The same point applies as to the calculation of the rate of interest. I shall return to that matter below.

I turn now to the issue of costs insofar as they relate to the claims made by the Defendant against the Additional Parties. I start by setting out the context of this case and my approach;

Awards have already been made as between the Claimants and the Defendant, as recited above. Although some part of the award in the case of the First and Second Claimants was on an indemnity basis, there is no material whatever before me which is relied on as showing that the conduct of any of the Additional Parties’ case against the Defendant, or his against them, should attract an award of costs on an indemnity basis.

I have considered the Defendant’s submission. I have noted the reliance placed on Chadwick LJ in McPhilemy v Times Newspapers. I do note that in Brawley v Marczynski & Anor No.2 [2002] EWCA Civ 1453 [2002] 4 All ER 1067, [2003] CPLR 241, [2003] 3 Costs LR 325, [2003] CP Rep 15. Longmore LJ (himself one of the court in McPhilemy v Times Newspapers) described the principle at [13] thus

“Recent authority has shown that it may also be appropriate to make an award of indemnity costs where there is little or no stigma to be attached to the manner in which the losing party has conducted the litigation, see eg Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer 12 June 2002, [2002] EWCA Civ 879 Para. 31 and Lord Woolf CJ’s re-emphasis in Para. 32 of:

“the point . . . that, before an indemnity order can be made, there must be some conduct or some circumstance which takes the case out of the norm.”

He gives the example of a test case which benefits other litigants. Indemnity costs may, specifically, be also awarded where a claimant makes a Part 36 offer which the defendant should, but does not, accept, see CPR 36.21 and McPhilemy . But despite these examples indemnity costs are, more usually, awarded when, as here, the judge disapproves of a party’s conduct in the litigation.”

In Revenue and Customs v Blue Sphere Global Ltd [2010] EWCA Civ 1448 [2011] BVC 30, [2011] STI 129, [2011] STC 547 Moses LJ at [12] referred to the approach as follows

In Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson (a firm) [2002] EWCA Civ 879 [2002] CP Rep 67, [2002] CPLR 693, [2002] All ER (D) 39 the Court of Appeal emphasised that the context of a Part 36 offer and its rejection are all important: see Lord Woolf CJ at [31]-[33] and Waller LJ at [34] and [40].

It thus seems to me that the general approach as between Claimant and Defendant, is that where a Claimant beats his own rejected Part 36 offer, it leads to a prima facie case that he should get indemnity costs. But as with any general or prima facie approach it must be applied in the context of the particular case.

What the Defendant in this case seeks to argue is that because he rejected an offer made to him, therefore an Additional Party, joined by him, should indemnify him for his own decision to reject the offer and fight on. As already observed the Defendant had elected to adopt a particular stance in the litigation, which did not involve the admission of liability but advanced no positive case. One of the risks of maintaining that approach was that if a Part 36 offer was made by the Claimant, he could not accept it, but might well be unable to resist the Claimant doing better. I do not consider that it would be just and equitable for the Third and Sixth Parties to have to bear the additional expense of the way in which the Defendant elected to conduct the litigation in the context of a Part 36 offer. I therefore consider that any indemnity as to costs should be on the standard basis, and that the Defendant should be able to recover costs payable by him to the Claimants as if assessed on a standard basis.

The effect of the Defendant’s stance was also that the award of damages were uplifted by 10%, and an enhanced rate of interest awarded from 22^nd March 2012. That too was a matter for him, and it would not be just or equitable for the Third and Fifth parties to bear those additional burdens.

I must deal also with the question of proportionality. The Additional Parties seek to compare the valuation of the damages to the overall costs of the actions, which they put at £ 500,000. Like some other seemingly simple arithmetical exercises deployed forensically, it is simplistic. Further, if it is well taken, then it may affect the entitlement of the Fourth and Sixth Parties (Messrs White and Brown) to an award of costs in their favour. They are of course jointly represented with PC Mark Jones and Sergeant William Wilson. However I note that nothing in the Additional Parties’ submissions suggests that the Fourth and Sixth Parties should not be awarded their costs, or that they should not get a full award, on the basis that the overall costs were disproportionate.

As I set out in the main judgment, the incident in question took a short time, but its consideration in these proceedings generated a great deal of paper. I have already, in the main judgment, indicated a number of areas where I considered that irrelevant material was introduced, or arguments brought forward which were simply incapable of relevance. I was critical of all the parties to a degree, but it is fair to say that the Additional Parties, or it should be said their advisers, must shoulder a considerable degree of responsibility for what occurred. By way of example, the Additional Parties’ case that the investigation of the incident had been mishandled (at best) or deliberately misconducted (at worst) went to an issue which, as was accepted at the trial, could not and did not take matters any further. The Additional Parties also thought it right to fill up court bundles with documents from the IPCC investigation and related matters, employment tribunal hearings and other litigation, which could not and did not have any relevance to the issues which the Court had to determine. As my judgment also records, the Additional Parties’ and their witnesses’ witness statements also contained significant amounts of irrelevant and prejudicial material.

So far as the Defendant is concerned, he served evidence of the various investigations conducted into the allegations made by the Claimants, and by the Additional Parties (strictly speaking by their families) against the officers engaged in the investigation of the original incident and the criminal proceedings which flowed from it. Given the nature of the attack from the Additional Parties (see for example paragraphs 3A, 29A and 45-47 of the Additional Parties’ Amended Defence), he had to do so.

So far as the Claimants are concerned, I do not consider that it was unreasonable to obtain and serve the evidence on similar fact which was relied on at trial. Although in the event I placed little weight on it, it was relevant and admissible, and properly adduced. That being so, it was reasonable for the Additional Parties to adduce evidence to rebut it. I do not consider that either course of action was unreasonable. Nor do I consider the principle of its adduction or rebuttal disproportionate. If accepted, the evidence supported the Claimants’ cases, and in particular against PC Jones, that his manner of dealing with those he came across of other ethnic origins was violent and excessive. I am aware that there are arguments for the assessment process which will explore whether it was the Claimants or the Additional Parties who were responsible for the incurring of costs in relation to those parts of the similar fact evidence held to be inadmissible by Sir David Eady, and on whether the degree of costs incurred in relation to the calling or rebuttal of the similar fact evidence was unreasonable and disproportionate. I limit myself to saying that the adduction and rebuttal of the similar fact evidence was not unreasonable in principle, nor disproportionate in principle. Whether the amount of costs incurred in that course was reasonable and proportionate will be for the assessment.

I should emphasise that I have been presented with none of the Parties’ assessment of costs. I do not have the material to decide whether the suggested figure of £ 500,000 is correct or not. But it follows from all the above that, when considering proportionality, an overall total, be it £500,000 as advanced by the Additional Parties, or some other sum, is not a proper figure to take. Further, this was a bad case of serious misconduct by police officers against teenage youths both of whom were under 17. Although the claims of injury were exaggerated, both suffered significant harm at the hands of police officers. At the same time, serious allegations were made about the treatment of a third youth by two other officers, who were properly entitled to resist liability for what they had done. Such cases required proper pursuit, defence and representation. Further, it seems to me that a significant part (albeit not the greater) of that figure will be attributable to the unsuccessful claim of the Third Claimant Hegazy, and the unsuccessful resistance of the Defendant’s Additional Claim by PC Mark Jones and Sergeant William Wilson, remembering also that much of the admissible similar fact evidence related to PC Mark Jones’ case, although not all.

The costs relevant to the pursuit and resistance of the claims of the Claimants Omar Mohidin and Basil Khan, and the related Additional Claims, once one winnows out the irrelevant and unreasonable, will come to a great deal less than the total costs figure for all parties in the action, whether that is £ 500,000 or some other figure.

I therefore conclude that there is nothing in the proportionality point which should dissuade me from making an award of costs against the Third Party PC Mark Jones in respect of the claim by Omar Mohidin, nor against the Third and Fifth Parties (PC Mark Jones and Sergeant William Wilson) in favour of the Defendant in respect of the claims by Basil Khan, nor from making one in favour of the Fourth and Sixth Parties against the Defendant in both cases, nor one in favour of the Fifth Party (Sergeant Wilson) in respect of the claim by Omar Mohidin.

I do not consider that I should make any awards as between the Additional Parties and any Claimant. It was a matter for the Defendant whether he joined all or any of the Additional Parties, and he elected not to support or dispute any of the Claimants’ cases on liability.

As the Defendant points out, if I made an order of indemnity or contribution with regard to the costs of the successful Claimants’ claims , that is not a liability which would fall on the Third and Sixth Parties (Messrs Jones and Wilson) personally, because of the role of the Police Federation. That being so, their lack of means cannot be a relevant consideration on the issue of any contribution to costs.

The Additional Parties have argued that it was disproportionate for the Defendant to issue the claims. It is said that the increase in costs thereby occasioned was not proportionate to the likely level of damages. I do not accept that submission, for the following reasons

Finally, I would return to the consequence of the Defendant issuing the proceedings for indemnity and contribution. So far as the Fourth and Sixth Parties Steven White and Neil Brown are concerned, and the Fifth Party William Wilson are concerned in the case of Omar Mohidin, the costs incurred by them in resisting the Defendant’s claim realistically included the cost of participation in the action, and of representation at trial. It may be that, on assessment, the costs of the Fifth Party William Wilson relating to the claim of Omar Mohidin are modest given the fact that he would have to be represented with regard to the claims made concerning Basil Khan in any event, but that is a matter for assessment.

I therefore consider that the appropriate course is that