Brown v Sussex Chief Constable

On a second appeal, the Court of Appeal will interfere with the decision below only where it is untenable or involves an error of principle. The question is not whether the appellate court would have reached the same conclusion. In a stale claim, the court may consider whether justice can still be done, including whether delay has prejudiced the possibility of a fair and effective trial. A carefully reasoned decision that proceedings should not continue because the claimant failed to proceed with sufficient speed will not be disturbed where there is no substantial prospect of success on appeal.

The claimant brought proceedings against the Chief Constable of Sussex alleging, principally, negligence in the police response to events occurring in 1990 and 1991. His claim was struck out in 1998 as partly statute-barred and for disclosing no cause of action. His later application to set aside that order and his application to transfer the proceedings back to the Central London County Court were refused by a district judge. His appeal to the county court was dismissed by His Honour Judge Kennedy QC.

The claimant, appearing in person, sought leave for a further appeal. The central question was whether justice could still be done in relation to the long-standing allegations and whether the county court judge had erred in principle.

1. Leave to appeal refused. The application concerned a second appeal from decisions of a district judge and a county court judge.
2. The Court of Appeal would intervene only if the judge below had reached an untenable decision or had erred in principle. It was not sufficient that the Court might have reached the same issue differently. The relevant question was whether the lower court had made an error of principle.
3. The root issue was whether justice could still be done in relation to matters occurring many years earlier. The county court judge had carefully analysed the history, including the claimant’s delay and the resulting risk that evidence had become stale and a fair trial might no longer be possible.
4. The claimant’s medical and psychiatric conditions, and his asserted fears for his safety, were acknowledged. They did not establish a substantial prospect that the county court judge’s decision was untenable or legally erroneous.
5. The Court saw no reason to fault the lower court’s reasoning and refused leave to appeal. There was no order for costs.

• Brighton County Court: His Honour Judge Kennedy QC dismissed the claimant’s appeal from orders refusing transfer of the proceedings and refusing to reinstate the struck-out claim.
• Court of Appeal (Civil Division): Leave for a further appeal was refused.