Kelly v Chief Constable of South Yorkshire Police

An appellate court should not revisit a deliberate order made after considering the parties’ positions merely because a party later wishes to advance a point that could have been raised earlier. A liberty to apply provision is not a general invitation to reopen matters already determined. It is directed to administrative problems which the order may have overlooked. Objections concerning the burden of proof or the allocation of issues between judge and jury cannot subsequently be used to set aside jury findings where those matters were raised, decided and not appealed. The court also expressed strong doubt that Civil Procedure Rules rule 3.17 conferred jurisdiction to reconsider the order in question.

The respondent brought proceedings arising from her arrest, detention and alleged assault by police officers. Following a civil jury trial, the trial judge refused an amendment which would have allowed an alternative account of how her knee injury was caused. On an earlier appeal, the Court of Appeal held that the amendment should have been permitted and ordered that the jury’s findings should stand, giving the parties liberty to apply.

The appellant then applied for the assault verdicts to be set aside, while accepting that the false-imprisonment verdict was distinct. The central issues were whether the Court of Appeal had jurisdiction to reconsider its earlier order and whether the jury findings could be reopened because of alleged errors concerning the burden of proof and the functions of judge and jury.

Application dismissed with costs. Lord Justice May gave the judgment, with Lord Justices Sedley and Rix agreeing.

1. The earlier appeal had resulted in an intentional order allowing the amendment and directing that the jury’s findings stand. That order was made after consideration of the parties’ positions. It represented the court’s carefully considered view of the just and proportionate way to proceed.
2. The appellant accepted that the issues concerning the legal burden of proof and whether particular questions were for the judge or the jury had been raised before the trial judge. They had been decided, the questions had gone to the jury, and no appeal had been brought on those grounds before the earlier appeal. It was therefore not open to the appellant to seek to set aside the jury’s decisions on those grounds.
3. Liberty to apply had not been granted to enable either party to have another attempt at matters which could have been put before the court earlier. Its purpose was to address possible administrative problems or matters which the court’s order had overlooked. It did not justify reopening the deliberate order.
4. The court considered that any difficulty for the trial judge in proceeding on the basis of the jury’s findings was no answer. May LJ expressed strong doubt that, in strict terms, Civil Procedure Rules rule 3.17 gave the court jurisdiction to make the order sought. The application was dismissed with costs, subject to detailed assessment if necessary, with £3,000 payable on account within 14 days.

• Court of Appeal (Civil Division): On 12 June 2002, the application to set aside the assault verdicts and reconsider the earlier order was dismissed with costs: [2002] EWCA Civ 920.
• Court of Appeal (Civil Division): On 25 October 2001, the earlier appeal was allowed, permission to amend was granted, and the jury’s findings were directed to stand.
• Sheffield County Court: In the civil jury trial, the trial judge refused the proposed amendment and consequential additional question. The jury found against the claimant on the principal injury and assault allegations but found limited liability for unreasonable force.