Day v Bryant (declaratory relief - costs - QOCS)

This is a reserved judgment following a trial on 5^th and 6^th October 2017 of the Defendant’s counterclaim. The counterclaim seeks various factual declarations from the court. The main claim is an action for damages for alleged sexual abuse but that has been struck out. The Claimant has, since at least mid-October 2016, not played any active part in the proceedings and did not attend the trial.

In November 2014 the Claimant, Mr Daniel Day, issued a Claim Form claiming damages against Dorset County Council (the First Defendant) and Mr David Bryant (the Second Defendant) for assault, battery and false imprisonment. The Claimant’s allegation was that in 1977, when he was fourteen years old, David Bryant and a Mr Dennis Goodman both anally raped him, having induced him to going to the Fire Station at Christchurch where they both were retained firemen. Mr Goodman had subsequently died in 2003 and was known to have committed sexual assaults. At the time of issuing the claim, the Claimant was able to rely upon the criminal conviction of Mr Bryant for the sexual assault the Claimant had alleged took place at the Fire Station. However, that criminal conviction was subsequently to be quashed.

The civil claim pleaded against the Dorset County Council was in vicarious liability, the argument being that both the roles and status of Bryant and Goodman as retained firefighters, combined with their use of the fire station, was sufficient. That claim was struck out by me in February 2017 following a successful summary judgment application by Dorset County Council that the claim disclosed no reasonable cause of action.

In contrast, the Second Defendant has not pursued a summary judgment application despite the quashing of his conviction because he has always fundamentally denied the allegations in principle. He has always wanted the matter to proceed to this civil trial in order to vindicate his name. By way of counterclaim, pleaded as an amendment because it seemed by that date dubious the Claimant intended to pursue his allegations in the main claim through to trial, the Second Defendant seeks factual declarations that fundamentally deny the Claimant’s case.

The circumstances of how the civil claim has progressed to-date, and the Second Defendant’s pursuit of a counterclaim through to trial in the post-issue absence of either participation or appearance by the Claimant, start with the history of the Second Defendant’s prosecution in the criminal courts.

The Claimant’s allegation of sexual assault arose in October 2012 when he delivered a handwritten note through the Second Defendant’s home letter box one day. Very shortly afterwards, the Claimant complained to Dorset Police that the Second Defendant and Mr Goodman had sexually assaulted him some years previously. The Police duly interviewed Mr Bryant who denied the allegation : as he always has continued to do so since.

Mr Bryant was charged and convicted in the Crown Court for a single offence of buggery in December 2013. He was sentenced to prison for six years. It is relevant to note in the context of this civil claim for damages that under challenge in cross-examination at the criminal trial, Mr Day (as complainant) denied he was advancing the allegation in order to make money. His reply was, as quoted by the judge in summing up, that : “I’m not hard up, and this is not something I’m doing for money, it’s because I need closure.”

Despite this assertion, the Claimant was to present a claim to the Criminal Injuries Compensation Authority nine months later, which resulted in him being awarded £11,000. Mr Butler, counsel for Mr Bryant, informs me that even if declarations of the type sought are awarded by this court, there seem to be no provisions to oblige Mr Day to return this money to the State.

In April 2014, Mr Bryant’s sentence was increased to 8½ years on an Attorney-General’s reference to the Court of Appeal. However, the reliability of that conviction became under scrutiny when, as part of his Statement of Case in the now issued civil claim, the Claimant disclosed and relied upon a medico-legal report from a psychiatrist, Dr Nikki de Taranto, dated 12 October 2014.

That report featured :

Further evidence challenging the Claimant’s credibility came to light. At trial, the Claimant had suggested the only person he had confided to about the alleged assault contemporaneously was a slightly older young man in his neighbourhood, a Mr Chris White. The Claimant’s emphasis both at trial and in the medical report was that the shame of the incident had prevented him from telling his parents and it was only many years later that, upon a trip to Bournemouth, was he moved to confide in his partner about what had happened when he lived in that region as a youth. Mr White denied there had ever been such a conversation, however, when approached by the Defendant.

Mr Bryant appealed to the Court of Appeal Criminal Division, who admitted the fresh evidence produced by the Defendant. The Crown factually conceded that the Claimant was recorded in medical records as a chronic liar and that he had invented his boxing career. Further, both the Claimant and Mr Mick Gregory, a witness who had been willing to support the Claimant’s boxing career allegation as part of the prosecution investigation, now made substantial factual concessions :

The conviction was quashed and the Crown did not seek a retrial. Mr Bryant was released from prison having served 2 ½ years of the sentence. His name was removed from the Register of Sex Offenders. The Defendant’s previous good character was restored although, it hardly goes without saying, Mr Bryant had sustained the profound ignominy of the original charge through to conviction and had served time in prison.

During the period of the appeal, the civil claim had been stayed. Following Mr Bryant’s vindication in the criminal courts, the stay was lifted. In October 2016, the Claimant’s application for summary judgment (issued at a time when the conviction was unchallenged) was dismissed. The Claimant was given an opportunity to restructure his claim by removing reliance upon the conviction and the now discredited boxing career. He was given permission to amend his pleadings and resubmit his expert medical evidence by 24 November 2016. The Claimant was represented at the October hearing by his solicitor, although shortly afterwards the Claimant dispensed with his solicitors’ firm and filed notice of acting in person.

That was the last appearance by the Claimant in this litigation. He did not attend the strike-out hearing on 7 February 2017, when it was noted that the Claimant still had not sought to amend his pleadings or filed revised medical evidence. The October 2016 permission was therefore formally revoked. In addition to a standard order for disclosure being made, an order for specific disclosure was made against the Claimant to oblige him to disclose the same documents he had obtained by way of an Order dated 20 April 2015 against Dorset Police in order to prepare his own claim. Further directions provided for Mr Bryant (as the now remaining defendant) to file an Amended Defence and Counterclaim and for the Claimant to file a Reply, the exchange of witness evidence and – to the extent evidential recognition was needed for the medical report annexed to the Particulars of Claim but as still remained unrevised - the Claimant was given permission to rely upon that report.

The Claimant did not comply with any of these directions. The trial of the claim was listed for a mention before Mrs Justice Whipple on 19 June 2017. Mr Bryant attended with counsel and witnesses but the Claimant did not. The Claimant’s non-compliance in the litigation was drawn to the attention of the court. In acknowledgment, however, that the court appeared not to have sent the Claimant a notice of the trial date, Mrs Justice Whipple adjourned but made an order that the Claimant must by 3 July 2017 notify both the court and the Defendant in writing of his intention to pursue his claim, in default of which his claim should stand struck out “for want of prosecution”.

The Claimant provided no such indication and so the main claim stands as struck out.

The now less commonly used phrase “for want of prosecution” might perhaps more conveniently be described as a specie of abuse of process recognisable under CPR 3.4(2)(b) as amenable to justifying the striking out of a statement of case. The distinction is not semantic but important in the event the Claimant might come to argue that his case is protected by the provisions of Qualified One Way Costs Shifting [“QOCS”] under CPR 44.13. By way of an exception to QOCS under CPR 44.15(1)(b), costs orders may be enforced against a claimant without permission of the court “where the proceedings have been struck out on the grounds that…the proceedings are an abuse of the court’s process”.

I am entirely satisfied that the Claimant’s conduct since November 2016 has been entirely abusive to the court’s process and that the strike-out automatically imposed in consequence of default directly reflects that abuse. For the purposes of CPR 44.15(1)(b), therefore, the Claimant’s case has been struck out for abuse of process. I do not think there is any relevant distinction to be made here between the striking out of “a claim” and the striking out of entire “proceedings”. Because it is only personal injury claims that attract the QOCS provisions, counterclaims are rare. Therefore, if the claim is struck out owing to abuse, it in turn sees the striking out of the entire proceedings. In the more unusual case of a claim that additionally includes a counterclaim, it is appropriate to interpret the QOCS exception as applying to the striking out of “the claim” of the party that benefitted from QOCS.

I have set out the factual and procedural background in some detail because only by it can the justification and merits of the declarations sought be properly considered.

From the Defendant’s viewpoint, he not only maintains but wishes to establish before the court he was wrongly charged, prosecuted, convicted, imprisoned, besmirched within his community and has suffered considerable physical, financial and emotional hardship both in and out of prison. I am told the Defendant attributes to this unfortunate history the sudden and unexpected death of his wife, aged 54, in February 2017. Anyone can follow Mr Bryant’s aims in principle but the difficulty in this civil process is that, in contrast to the criminal prosecution, this court has been deprived of the opportunity of testing the Defendant’s claim by hearing from the Claimant. Instead, there is not even a witness statement from the Claimant and, as stated, he has failed since November 2016 to comply with other directions or to appear at court hearings through to trial. The evidential predicament thus created has been effected by the Claimant personally.

I accept that it is not unknown for a civil court to have to decide questions of fact in the absence of a party. A fatal accident claim is a classic example. This case is not so analogous, however, because it focuses on allegations that are so reliant upon witness impression as conveyed through oral testimony.

The evidential predicament has some qualification, though. The factual decisions I am asked to reach do not repeat of the criminal trial process for a variety of reasons. Though it will be obvious to the lawyers, one of the most significant reasons is the distinction between the standard of proof between civil and criminal proceedings. The standard of proof in the civil jurisdiction is on the balance of probabilities. So any findings I express are on that basis.

For the reasons I discuss below, the Claimant’s absence should not justify the court to shy from embarking upon the process requested by the Defendant. This step could be justified be even if, by his own election, the Claimant’s allegations have to be considered only in the context of his pleaded claim and such documentation as has been disclosed by the Defendant.

This evidential limitation raises an important and more than academic observation as to what can be achieved in principle in a counterclaim for declarations as sought. If the court is minded to express a factual declaration, then findings will have been reached on the balance of probabilities. This limitation stands in contrast to the criminal procedure. From the criminal procedural viewpoint, Mr Bryant had the presumption of innocence until his conviction. His conviction was because the Crown established guilt beyond reasonable doubt. However, and of course most critically, that conviction was quashed because the Court of Appeal (following very open concession from the Crown) were not satisfied the decision of the criminal court had been reliable, having regard to the higher burden of proof. The jury instead might have acquitted Mr Bryant had the fuller evidence been put before it and so it was unreliable.

Mr. Bryant’s desire to establish (or rebut) an allegation by way of declaration rather than the pursuit of monetary compensation is not unique. Other examples could be found of those accused of abuse in a civil claim as commenced but as never comes to trial. Reasons why such claims might not continue could be various but death or discontinuance by the claimant would be immediate examples. Regardless of the probable statistical minority of such claims, it will be recognized how those accused would thereafter remain in a most undesirable factual vacuum. Serious allegations will have been raised but no findings ever made by the very court utilised by the complainant to present the allegations. Whilst from a puristic legal viewpoint it can be said that an allegation never proven in court remains no more than an allegation, on a personal level it would be unrealistic to ignore the obvious profound distress, inconvenience and expense sustained by those who had looked to those proceedings to rebut the allegations and to establish their innocence. Their sense of injustice and deprivation of process for the accused will enure well beyond merely any payment of their legal costs upon discontinuance, for example.

I must emphasise at this point that the predicament I recognise of an allegation still needing to be resolved despite the procedural opportunity to do so having been removed might not only affect those accused of abuse but also those who allege abuse. In the case of the latter, this can be because of the relationship between legal costs and legal representation.

Those alleging abuse, unless extremely solvent, are unlikely to obtain legal representation unless its expense stands a reasonable prospect of being reimbursed by way of a costs order against a defendant following success in the claim. Hence the concept of “success” for the purposes of conditional fee agreements. Success is typically defined in terms of the achievement of an award of damages. So where a factual finding of abuse is required in order to sustain a claim in damages, it remains open to any solvent defendant to make a sufficiently attractive financial offer to settle the damages claim and thereby ensure that the claimant is advised by his or her lawyers on a conditional fee arrangement not to proceed further but to instead accept the offer. So a claimant alleging abuse can also find themselves having been deprived of the opportunity to have their case heard and the benefit of a reasoned judgment.

I should add that those alleging abuse may not necessarily be as claimant but could be a counterclaimant. Take, for example, an educational institution who might bring a comparatively straightforward claim for unpaid tuition fees against a student who then counterclaims damages for the vicarious liability of the institution for sexual abuse. Here, the primary claim for unpaid fees could easily be withdrawn given the greater implications of the counterclaim.

Whether complainant or accused, and as claimant or counterclaimant, it therefore seems to me fundamental that in certain appropriate and sufficiently serious cases the courts should be asked to recognise the interests of those for whom pure factual resolution is more important than financial remedy. Indeed, on my understanding, such need probably represents a high percentage of those at the centre of abuse allegations.

It nonetheless remains comparatively uncommon for a civil court to make purely factual declarations without providing other relief or financial award. Generally, declarations are sought and granted alongside with other forms of relief, typically in the form of injunctions. It may be this reflects former more commonly encountered claims and trends in litigation. Either way, in current times where abuse and sexual harassment claims are becoming increasingly more common, it is important carefully to consider how case law can assist.

The important starting point is that there is nothing to prevent the court from making a binding declaration simply because no other remedy is claimed. So Mr Bryant is procedurally entitled to seek declarations despite not pursuing a claim in damages. However, in considering whether to grant a declaration or not, the court should take into account the justice served respectively to the claimant and to the defendant, whether the declaration will serve a useful purpose, and whether there are any other special reasons why or why not the court should grant the declaration.

This is clear from the guidance of (as he then was) Mr Justice Neuberger in Financial Services Authority v John Edward Rourke (Trading As J.E.Rourke & Co)[2002] C.P. Rep. 14 at Para 2 (d) :

“Accordingly, so far as the CPR are concerned, the power to make declarations appears to be unfettered. As between the parties in the section, it seems to me that the court can grant a declaration as to their rights, or as to the existence of facts, or as to a principle of law, where those rights, facts, or principles have been established to the court's satisfaction. The court should not, however, grant any declarations merely because the rights, facts or principles have been established and one party asks for a declaration. The court has to consider whether, in all the circumstances, it is appropriate to make such an order.

In Patten v Burke [1991] 1 WLR 541 Millett LJ stated that, in effect, it was the court's duty “to do the fullest justice to the plaintiff to which he is entitled”, and he went on to hold that there was no rule of law which prevented a declaration of fraudulent conduct.

In Messier-Dowty v Sabena [2001] 1 All ER 275 the issue was whether a negative injunction should be granted. Lord Woolf said this:

“The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved, the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice. …

So in my judgment the development of the use of declaratory relief in relation to commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. It should instead be kept within proper bounds by the exercise of the courts' discretion.”

It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration”.

In Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387 Aikens LJ summarised the principles at Para 120 :

“For the purposes of the present case, I think that the principles in the cases can be summarised as follows : (1) The power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on “private law” issues. This may particularly be so if it is a “test case”, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.

Drawing from that guidance, I am satisfied that there is a very real and present dispute presented by this litigation in respect of which a declaration is appropriate.

The need for a declaration on the facts of this case is, I find, independent of the additional feature of its currency having been, as I also find, deliberately tainted by the Claimant’s failure to co-operate and pursue his case through to trial. The purpose of the declaration should not in any way be described as now affecting the Defendant less or having become merely academic because the main claim has been struck out. Mr Bryant was accused of an exceptionally serious assault and so has a legitimate interest, in my judgment, of obtaining the justice of appropriate findings. I do not consider it necessary to show there has been an abuse of process or other default by the Claimant that has caused the current position to arise as a necessary prerequisite for permitting a declaratory remedy of the type sought here to proceed because the authorities frame the court’s powers and discretion much more broadly.

Indeed, any credence to such analysis would have to incorporate and acquiesce to the Claimant’s default to enable the proposition even to arise. That cannot be right. It cannot be that a party’s abuse of process could be used to their advantage by disputing the applicability of seeking a declaration alone by way of counterclaim. Similarly, neither can a party’s procedural unwillingness to participate justify any submission from the same party that they are prejudiced by not being able to reply to the Defendant’s counterclaim. I am quite satisfied that the Claimant has had more than sufficient opportunity to respond to the counterclaim.

These last points and the court’s duty, as I accept it to be, “to do the fullest justice to the [claimant (Footnote: ¹)] to which he is entitled”, per Millet LJ in Patten is the only, and not simply the most, effective way of resolving the litigation in the unsatisfactory state personally created by the Claimant. Further, the use of the term ‘claimant’ above was clearly not intended to refer only to conventional primary ‘claimants’ as we now might term them but, as here, also to someone defending allegations and who counterclaims for declaratory relief.

Mr Bryant has assembled a large amount of material principally emanating from his criminal prosecution. Much of that, and particularly the interview transcripts, focus on a variety of issues that could ultimately generate nuanced questions in cross-examination. In the evidentially qualified context of this case, however, I exercise caution in exploring points of observation if only by being put in cross examination in the witness box can their merits be properly considered.

If it follows that nothing be gained from attempting to develop finer points of factual challenge against the Claimant when he is absent, it would similarly be inappropriate for the court to descend into the arena and adopt an inquisitorial approach to the Defendant’s evidence and that of his witnesses. This point is not the same, however, as the court being entitled to seek clarification on the evidence given in court by witnesses.

For these reasons, I regard the fairer approach is to take an objective view of certain key features and events. I will deal with them each as follows.

The Claimant’s production of and reliance upon the medico-legal report from the psychiatrist, Dr Nikki de Taranto, dated 12 October 2014, was intended to support his claim for damages. Although the main claim has been struck out, as a report produced and relied upon as part of the claim as issued and permission to rely upon for which was granted, I am entitled to consider it.

As I have mentioned, the Claimant never took up the opportunity for Dr de Taranto to re-interview him or at least reconsider her report in the light of the quashing of the conviction. The reasons for that are not difficult to guess. Any psychiatrist is clearly reliant upon patient accuracy and honesty in their self-reporting, although any contemporaneous medical records serve to assist and check that process. Nonetheless, when originally interviewing the Claimant it was an established fact that Mr Bryant had been convicted of the allegation the Claimant relied upon in support of his claim for compensation. Without that conviction in place, issues of credibility and inconsistency in the Claimant’s medical history recorded in the original report take on a potentially very different relevance to the expert opinion expressed. In other words, causation of the symptoms alleged becomes less clear if the index event itself is known to be fundamentally in issue factually.

We do not know, and never will, how Dr de Taranto might have revised her views. This is perhaps more a hypothetical observation rather than a qualitative evaluation of the report as it stands though. At this point in this case, the court is no longer interested in the expert opinion of Dr de Taranto but instead what it records about both the Claimant’s history and what the Claimant self-reported in interview with her.

The Claimant reported to Dr de Taranto during consultation how he had had significant aggression and anger management issues from the age of fourteen onwards, following the assault and because of it. He described how boxing provided a “way out” of his aggression. He denied he had ever seen a psychiatrist.

Dr de Taranto states at Page 9 how she had not seen the Claimant’s medical records at the time of her consultation “and so was not able to discuss them with him” but somewhat confusingly at Pages 10 and 11 seems to incorporate comments from the Claimant in response to some of the extracts from the Claimant’s medical records as summarised within her report. The process by which this comment was achieved is unclear and cannot now be explained. Given the comment above, it seems less likely that there was any subsequent face to face discussion between Dr de Taranto and the Claimant. This uncertainty remains of some importance, even though discrepancies between original reporting and subsequent clarification is no longer material to Dr de Taranto’s opinion and prognosis because that is no longer under consideration. The best one can infer is that correspondence must have been exchanged between the Claimant’s solicitors and Dr de Taranto about the Claimant’s recorded psychiatric history and that his explanations and comments must be assumed to have been accurately recorded because the report was adopted and incorporated into the Particulars of Claim.

The extracts particularly relevant for the purposes of assessing the truthfulness of the Claimant’s allegation are as follows :

Mr Bryant’s January 2014 conviction was unsurprisingly reported in a local newspaper, the Bournemouth “Daily Echo”. In the article, the Claimant expressed disappointment with the sentence but expressed thanks for the police and CPR and that he wished “to say that I think this incident has no bearing on the fire service itself”.

I do easily not follow how in January 2014 the Claimant could express such objectivity about the fire service as an institution regardless of the two individual fire fighters he said had raped him but, in October 2014, tell Dr de Taranto that the experience had left him avoiding or crossing the road near fire stations and spitting at fire engines.

The online version of the newspaper facilitated readers to add their comments by way of a blog. Contributions of varying quality immediately were added. Although not initially admitting his true identity, the Claimant came to contribute as well. I consider these contributions in terms both of the varying sequence of the Claimant’s stance in his contributions and in the light of the other evidence available.

On 25 January 2014, someone introducing themselves as “Dan’s partner” [i.e. the Claimant’s partner] described the Claimant as a sensitive individual who would never harm on anyone and cared deeply for sick or neglected animals : “Dan would give you his last organ to save your life and would demand his name not to be mentioned...I have no idea to express how amazing this guy is and his need to continue his life in peace…Both Dan and I are currently nursing piglets whose mothers wanted to eat them”. It continues how “Dan would of [sic] dropped the charges and that would been the end of the matter” had Bryant said sorry when contacted”. “Dan doesn’t want recognition despite many people putting him forward for what ever [sic] award is on offer”.

Whether written by the Claimant, caused by him to be written or an independent reflection of how the Claimant was representing himself to the contributor, this account stands in stark contrast to the actual note put through Mr Bryant’s letter box on 20 October 2012 :

“Dave its Danny Day 35 years Ago I used to collect the glasses in the Legion and I am the same one that you and Spindle played Darts with in the Fire Station (Remember!). At 6’O’clock tonight I am going to the Police Station to report what went on & at 7 to the National Papers I think it is time you and Me had a Chat. My number is 07803 845731. I think this is in your interest to call. One way or another you will pay for what you Done in Late ’76 Early ’77 Dave Bryant”.

Regardless of the truth of the allegation, this would not strike any reasonable person as anything other than a blackmail note. It is clearly threatening. The invitation to make contact seems well away from a need to discuss and elicit an apology but instead seek either a financial payment or retribution through the threat of Police involvement and publicity.

I am satisfied this provides further evidence how the Claimant is capable of presenting himself on entirely different bases depending upon what response or result he wishes to achieve.

This continues to be evident from subsequent sequences in the Blog.

The suggestion in the 25 January 2014 entry that “Dan” didn’t want recognition but instead to live his life in peace seems to have been wrong because, the next day on Sunday 26 January 2014, the Claimant contributed as “John66” remarking about the variety of the contributions to that date, complimenting the legal system as it stood but then publicly revealed his identity. He wrote “The young man in simple truth is my name is. Danny Day. There will not be any compensation claims for this and the fight against Bryant is now finished”.

In an interview with the Daily Echo, published in an edition dated 29 January 2014 and so just after sentencing, the Claimant described how he had originally decided soon after the attack to put the “harrowing ordeal” to the back of his mind but that he “now realised” how profoundly the experience had affected him. “I have thought about it every day”. “I didn’t want it to affect my life, but it did. I haven’t achieved what I should have, in my boxing, in business, in relationships”. The article described how the trip to the family gathering in Bournemouth had “provoked his memories of the attack”. The article concludes with advice from the Claimant to anyone affected by abuse not to suffer in silence but to speak out, without which there could not be “closure”.

Despite his public avowal not to claim compensation and to speak out in order to achieve seek “closure”, by no later than May 2014 the Claimant had instructed solicitors to initiate a civil claim for compensation. They sent Mr Bryant in prison a detailed letter setting out their various proposed steps in the compensation claim on 23 May 2014.

This change of position by the Claimant is further endorsed when he revived his contributions to the Daily Echo blog in March 2015. Writing again as “John66” on 13 March 2015 but this time commenting as if a third party, presumably overlooking his previous admission that “John66” was himself, the Claimant wrote :

“I understand in this case Mr Bryant’s wife knew what had gone on as it was established in the case that her family had a history of this abuse for which she had witnesses herself. On one occasion she even saw it happening and never said a thing which might explain why this victim wants her to be punished as well in what ever why [sic] he can”.

The suggestion that the Claimant sought punishment for Mr Bryant’s wife as well is clearly a significant and new approach. I also note the Claimant’s facility to revert to describing events in the third person for the intended benefit of both achieving anonymity and to convey an impression of support for him by way of independent comment.

The Blog from this date followed at least a form of debate about the propriety of claiming compensation for historic abuse. On 13 March 2015 “John66” responded to someone who had questioned why victims might seek compensation by observing that plenty of people claim for road traffic accident injuries and added :“I would get great pleasure beating the purputrators [sic] to pulp but the law doesn’t allow that so the next best thing is their liberty and their pocket”. The Claimant here has clearly moved on from his earlier self-portrayal.

Mr Bryant submits that the Claimant’s changing position is evidence that the Claimant intended to claim compensation from the outset by way of the 2012 letter. The internet references to him not wanting compensation should be treated as simply a calculating distraction, probably intended to elicit sympathy within his community, particularly pre-sentencing.

It is certainly fair to observe how the Claimant continued to use the media to provide inconsistent messages about why he was seeking compensation.

In an article in the Sevenoaks Chronicle dated 30 July 2015 entitled “Knockholt sex abuse victim sues rapist over ‘lack of apology’ ”, the Claimant described how following the event he would sometimes “think about what I could have achieved if none of this had happened. I was on track to go to the 1984 Olympics as a boxer, but all that fell apart”. The Bournemouth trip had caused the memories of the attack to “come flooding back” and so he had decided to confront Mr Bryant. “All I wanted off him was an apology. If he had said ‘I’m sorry, I was misled’ that would have been fine”. The article continues “But when Bryant complained to the Police that he had received a malicious letter, Mr Day decided to report the historical sex abuse to the authorities himself”.

The contrast between the self-presented and the “anonymous” versions from the Claimant are clear and striking. In the “anonymous” contributions the Claimant can quite fairly be described as deliberately retributive without reservation. The self-presented accounts portray him as a victim who has reluctantly been forced to speak out and seeks compensation only because of Mr Bryant’s unwillingness to admit his deeds. It is very difficult to accept these stances could be described as mutually consistent. I am satisfied they are not and have to ask myself which seems factually the more accurate portrayal.

This task is clearly more difficult given the absence of the Claimant. However, objective observations can fairly and I find easily be concluded.

First, the Claimant did not ask for an apology in the 2012 letter but clearly threatened, indicating he would be going to the Police and the Press that same day. The Claimant’s suggestion that it was only because Mr Bryant didn’t apologise that he “decided” to report the matter is untrue.

Secondly, it cannot possibly be true both that memories had flooded back in 2012 and yet, as narrated to Dr de Taranto, the Claimant had sustained vivid flashbacks several times a week since the age of 14. The Claimant was lying in one of those accounts – and possibly both, according to the Defendant.

Thirdly, a point I now turn to, it is simply untrue that the Claimant ever had had a successful career in boxing and was destined for the Olympics.

As part of the prosecution case, the Claimant’s partner Suzanne Huckle prepared a witness statement dated 1.7.13 setting out her relationship with the Claimant. In it, she refers to him having admitted to “quite a violent past” and how :

“His boxing career, it seems, was a way of him expressing this temper in a controlled environment…Danny has spoken to me about a lot of things especially the boxing. He became quite a renowned boxer in his years and is well known by a lot of the professional boxers some of whom admit that they would not want to share the same ring as him. I asked Danny why he never went professional and he told me he didn’t want the publicity. He didn’t want the two firemen to see him on telly and know what they had done to him, he even dropped out of the Olympic Team in 1983 when he was picked to fight in the 1984 Olympics. He explained that one of the firemen’s relatives was the British Boxing Champion Gordon Goodman and it was he who encouraged Danny to Box.”

Also for the prosecution, in a statement dated 14.07.13, Mick Gregory set out his proposed evidence on behalf of the Claimant. It narrates how Dorset Police had asked him to provide a statement to explain “Danny’s boxing history”. Mr Gregory wrote that he had known the Claimant from late 1979 when he was 16 years old :

“and keen to re-start his boxing training that he originally started 8 years previous at Marvels Lane Boxing Club in South East London under the direction of head coach Alan Lawrence. By 1993 Danny had had 61 inter club bouts, he had won 57 of these by way of KO, TKO (Footnote: ²) or on a points decision. In 1983 he was selected to be part of the English squad to go to Los Angeles in mid 1984 for the Olympics. Within two weeks of the selection process Danny had pulled out just saying he did not want to go. He actually withdrew from all club level boxing”.

The statement continues to describe further boxing activity by way of “exhibition bouts” for various clubs in London “including sparring some of the then up and coming champions and in around 1990 he applied to ABAE in Sheffield to complete his junior coaching certification”. He coached until 2009 after which, following heart problems, he “retired completely”.

I approach these statements not with regard to the way they were proposed to be (but it transpired were not) used as part of the prosecution case. Instead, they stand as written evidence apparently supported by statements of truth of either what the Claimant had directly told them (Huckle) or what the Claimant and a witness (Gregory) were willing to have adduced in court. There is no doubt that the factual assertions in this evidence emanate from the Claimant, even though there is no document from him directly that incorporates these assertions.

The witness evidence of Suzanne Huckle and Mick Gregory are formally adduced and relied upon by Mr Bryant by way of hearsay notices. They therefore constitute evidence before me, despite having been prepared in a different forum and neither witness being called.

The Claimant’s account of an illustrious boxing career was repeated in his consultation with Dr de Taranto. The Claimant has, of course, adopted this report by incorporating it into his Particulars of Claim.

As part of his appeal against conviction, Mr Bryant engaged a private investigator, Mr Michael Pettitt, to look into the Claimant’s asserted boxing career. Mr Pettitt is a former Police Officer, having served for 30 years and retired at the rank of Detective Sergeant. His carefully described research is described in two witness statements dated 3.6.16 and 29.06.16, as prepared for Mr Bryant’s appeal. Mr Pettitt confirmed the accuracy of these statements for the purposes of this civil claim in his witness statement dated 23.04.17.

Mr Pettitt’s research reveals that :

Mr Hickey’s impressive CV within the trial bundle clearly establishes his credentials within the sport of boxing.

Mr Hickey signed a witness statement dated 16.06.16 as part of the appeal proceedings. In this he confirms what he had told Mr Pettitt. To the best of his knowledge, there has never been a person by the name of the Claimant who had been recommended or selected to the Olympic squad. Moreover, Mr Hickey found the Claimant’s boxing achievements, as alleged on his behalf by Mr Gregory, “quite amazing”. To achieve the success of 57 out of 61 bouts was something Mr Hickey had never heard of from anyone. To achieve this would take about five years to achieve and would “certainly” have justified selection for the Olympics.

Mr Butler on behalf of Mr Bryant told me, and I think I am entitled to take judicial note of such information rather than require it formally to be proved that :

Dorset Police approached the Claimant to prepare a witness statement in 2016. In that statement dated 4.7.16, the Claimant still maintained his remarkable participation in approximately “sixty fights” of which he won 57 but now maintained this was all at unlicensed venues. People involved in these fights had links to the ABA but the Claimant was “not prepared to name them” because of the unlicensed nature of the bouts. In respect of the quite specific earlier allegation that he had been chosen to go to the 1984 Olympics, a heavily modified account now appears :

“Towards the end of my boxing career I was approached by a promoter who raised the possibility of me being part of the 1984 Olympic team. I do not want to name this person, again due to their official connections and the fact they were involved in unlicensed activities. I didn’t take up the offer as I was worried about the people who abused me seeing me on television…On top of all of this my cousin passed away in 1984 and I just didn’t feel up to boxing”

Mr Pettitt approached Mr Gregory to provide an updated statement as part of Mr Bryant’s appeal. The critical points to note about this later statement dated 16.06.16 is that Mr Gregory :

The propriety of Mr Gregory signing a statement in 2013 testifying as to the truth of the Claimant’s alleged boxing career when, by way of his 2016 statement, he admits to being unable to confirm the truth of its contents, is not directly for my consideration or decision making. On any view, of course, Mr Gregory presents as an unreliable witness who clearly pays little if any regard to the importance of stating the truth of a document, despite being at risk of prosecution or civil contempt in the event of it being established he wilfully stated anything within it to be false.

More important points arise from this evidence. They are, and I find as a fact that :

The evidence of Mr Pettitt has already been discussed and my conclusions expressed.

Mr Chris White gave evidence to deny the Claimant’s claim that he (the Claimant) had confided in him about the alleged assault a few weeks after it had happened.

That allegation features in the report of Dr De Taranto at Page 5. She wrote how :

“A few weeks after the assault, however, he told a friend, Chris White, who as about seventeen. Chris told him to tell his father, but he felt he could not do this”.

A more elaborate version of this appeared during the Claimant’s interview with the Police on 12.11.12 following his first complaint. Then, the Claimant remarked of Chris White how “we used to go…When we went down to the Legion he was a member, and we was always playing darts together. He just wanted to know why we hadn’t been down there in such a long time and when I told him he understood”.

Mr White’s evidence is that the Claimant never had any such conversation with him, still less at the British Legion club where he admits to working collecting glasses. Mr White denies ever having spent even an evening with the Claimant at the Legion. The only passing conversations he might ever have had with the Claimant were in very different circumstances. He recalled that up until the late 1970’s the Claimant lived in a new housing development near to Mr White’s home and that the Claimant would sometimes be hanging around the neighbourhood when Mr White was tinkering with his car on his front drive. He told me he would have been a few years older than the Claimant at that time, having passed his driving test in about August or September 1978. There therefore may have been the odd word or acknowledgment between them as the Claimant passed by in these circumstances but nothing more. Mr White was quite clear about this point when I asked him to elaborate. He was clear that any modest chat that had ever taken place between them was inconsequential. Nothing personal or important had ever been imparted by the Claimant.

Mr White struck me as a very straightforward witness who gave his evidence without hesitation or reservation. Despite this, the Claimant has sought to rely upon Mr White (if only by reference) as lending a degree of plausibility and realism to his allegations of sexual assault. I have to ask myself whose evidence I prefer.

I prefer the evidence of Mr White. Although I did not have the benefit of observing the Claimant’s demeanour to make any similar assessment during trial, the Claimant’s considerable inconsistency on matters of credibility within the documentation satisfies me that Mr White’s recollection is by far more likely to be reliable. I come to this conclusion not least by observing how the Claimant’s other attempts in his claim to produce witnesses to support an aspect of his personal history [namely Huckle and Gregory] can be demonstrated to be utterly untrue, let alone unreliable.

Mr Trowbridge was called to give evidence about the fire station layout both at the time of the alleged assault and since.

In interview with the police following his initial complaint, the Claimant had described going through the concertina doors at the Christchurch fire station, walking between two fire engines and then going down stairs to the recreation room where he said the assault took place. He described a dart board to the left, a bar to the right and the layout of the windows. There was a door across the back wall where the windows were from which one could exit the building. The Claimant said there was a pool table in the centre of the room, opposite the dart board. The Claimant mentioned several times in the interview how he had been forced over the pool table to enable the assault to take place. At Page 7 he had explained that :

“In my mind it was a pool table but I can’t be 100% sure, whether it was a pool table. I’m pretty sure it was a pool table….I’m pretty sure it was now”

Mr Trowbridge worked as a firefighter from the Christchurch Fire Station continuously between from the time of its construction in 1974 until 1996. His service had commenced in 1969. Mr Trowbridge’s evidence was that :

I note from the judge’s summing up in the criminal trial that Mr Trowbridge gave evidence at the trial and particularly the accuracy of the Claimant’s location of the dart board was a point of observation for the jury. So too whether there had been a pool table.

Inconsistency on certain points of detail is to be expected from any witness trying to recall events that occurred many years previously. Inconsistency does not necessarily establish that their account is unreliable as a whole : still less that they have contrived that account. In this regard, establishing the true position of the dart board is not something I find helpful.

I am struck, however, by the fact that several of the points relied upon by the Claimant cannot be easily explained as the consequence of a hazy but well-intentioned and possibly inaccurate memory. First, neither the pool table nor the external door would have existed at the time of the incident. Reference to these features suggest a visual picture based upon a visit to the station and recreation room many years later. Secondly, access via the concertina main doors was and remains impossible. That suggestion from the Claimant has to be an entire fabrication, whether conscious or not.

The introduction of detail by the Claimant that is simply factually inaccurate is consistent with a witness who is seeking to improve their account by embellishing it. I accept that is still not inconsistent with the primary allegation still being true. However, depending upon all other evidence, it stands to undermine the credibility of the testimony of that witness.

Mr Bryant’s witness statement provides a comprehensive review of the history of the Claimant’s allegation from the time the handwritten note was delivered through Mr Bryant’s door on Sunday 20 October 2012 through to the interim orders in the civil claim.

Mr Bryant’s position in response to the allegation is, in contrast to the variations in the Claimant’s account, simple and to the point. No assault ever took place and there was never an occasion when he and the Claimant were in the fire station together [Para 7]. Mr Bryant offers in his witness statement no explanation why the Claimant should have fabricated the account or what motive he might have had in doing so. I note this fundamental if somewhat unelaborated denial is consistent with Mr Bryant’s interview with the police in 2012. It is also consistent with the demeanour with which Mr Bryant presented at trial before me.

A blank denial of a significant event such as a sexual assault can be interpreted in various ways. It could be treated with circumspection, prompted on the basis that one would expect greater elaboration from someone accused of a serious offence. Conversely, not everyone will seek factually to elaborate or philosophise. Possibly because of their personal outlook, means of expression or possibly education or job. Possibly because, quite simply, a plain denial is appropriate in response to something wholly incorrect and without foundation. The latter observation indicates the judicial danger of looking for evidence to prove a negative.

In the absence of the Claimant at trial, and moreover in the absence of the Claimant ever having produced a witness statement setting out his account for the purposes of his civil claim, the court was in a difficult position when hearing Mr Bryant’s testimony in the witness box. It is certainly not for the judge to assert a positive case on behalf of the absent claimant. Neither, however, is it appropriate for the court to adopt an entirely passive approach. The court is certainly entitled to seek clarification and amplification of any relevant points as part of its scrutiny of the facts.

In asking Mr Bryant whether he could provide any elaboration as to the Claimant’s reasons and motives, I was similarly struck how Mr Bryant’s consistent and fundamental response was to the point and more one of passive perplexion than anger or emphatic indignation. Of course, Mr Bryant has had to respond to the allegation many times previously by way of a criminal prosecution and trial. It is perhaps not surprising that he is less inclined to show heightened emotion in response to the allegation after the consequences it has had for him. Nonetheless, I formed the overall view that Mr Bryant was a plain speaking man who does not elaborate having stated his position.

Mr Bryant was unable to offer any explanation other than that the Claimant must, in later years, have decided entirely to fabricate the allegation for the purposes of financial gain. Mr Bryant acknowledges that the Claimant’s initial presentation through to the trial and sentencing had been to deny he was motivated to make a claim. Despite this, Mr Bryant’s view is that this was the Claimant’s true motivation.

I note here that whilst the Claimant denied through to sentencing that he was motivated to make a claim, as part of his explanation why the allegation had surfaced so many years later, the Claimant explained that not only had his visit to the area rekindled memories but that he had discovered that Mr Bryant was a significant member of the local community and had been recognised at various levels for his contributions. The Claimant portrayed that as a source of irritation and distaste having regard to the alleged past misdeeds. I have to decide whether I accept this account, whether it is fact neutral in my analysis or alternatively whether Mr Bryant’s place in the community might to the contrary have influenced the Claimant to regard Mr Bryant as highly vulnerable to a contrived and sensitive allegation and hence make him a likely source of compensation.

Mr Bryant denied any social contact with the Claimant around the time of the incident or any other incident (social or more adverse) as might have given rise to a grudge or dislike of him by the Claimant.

Mr Bryant further denied there were any broader familial ties between him and the Claimant save for telling me about an incident his late wife had told him for the first time following the Claimant having put his letter through their letter box.

Mr Bryant’s late wife had admitted to him that she had been at school with the Claimant in the same class year. The late Mrs Bryant was the niece of the co-accused Mr Goodman. Mr Goodman lived with his parents, whom the late Mrs Bryant would visit from time to time. When a teenager around age 14-15 and so about the time of the alleged assault, she had visited Goodman’s home but no-one appeared to be at home. On going round to the back of the property to check if anyone was at home, she had witnessed Goodman and the Claimant through the dining room window engaged in a sexual act. Mr Bryant told me that his late wife had mentioned this to the Police as part of their investigation but nothing came of it. Mr Goodman was in later years convicted of sex offences and was discharged from the Fire Service.

This description was not in Mr Bryant’s witness but in response to my questions to him in the witness box. Although I exercise some caution in considering this evidence because of its impromptu nature, I am satisfied that Mr Bryant offered it without any intention to mislead or elaborate. Indeed, he offered this information in very much the same matter of fact way he had provided me with his other responses.

On all the evidence, I am satisfied that Daniel Day was not sexually assaulted by David Bryant. There is circumstantial evidence that Daniel Day may have had a sexual relationship with the late Mr Goodman and allegations based upon this recollection could well have substance. However, this is an unpleaded and undeveloped part of the case. In respect of the allegation there was an assault involving Mr Bryant at the Christchurch Fire Station in the late 1970’s, in my judgment Daniel Day’s history of false presentation and both the implausibility and inconsistency of parts of his account all combine to establish that the allegation is false. I find that Daniel Day’s motivation in raising this allegation came to be based upon a desire to claim compensation from David Bryant and the State, if that had not been his motivation from the outset. I am satisfied that the allegation also served Day’s practice to seek personal attention and drama and this motivation had been present from the outset.

I make the following declarations :