Ashley & Ors v Sussex Police

For misfeasance in public office, serious negligence, incompetence or corporate failure is insufficient. The claimant must identify an unlawful act or deliberate omission, the relevant public power or legal obligation, and bad faith in the form of knowledge of illegality or reckless indifference to it and to probable injury.

On applications for strike-out or summary judgment, the court must avoid a mini-trial, but may decide the claim where the evidence shows no real prospect of success and no compelling reason for a trial. Disclosure is confined to relevant material. Investigatory reports containing chronologies and opinions are not relevant merely because they may assist analysis of disclosed evidence.

The claim arose from the fatal shooting of James Ashley during an armed Sussex Police raid in January 1998. The Defendant admitted negligence causing the death and accepted responsibility for proven damage flowing from the incident and its aftermath, but denied assault and misfeasance in public office.

The Claimants sought disclosure of investigation reports, medical notes and personnel records. The Defendant sought strike-out and summary judgment concerning the assault claim and alleged misfeasance before trial. The central issues were whether the disclosure sought was relevant, whether the shooting was capable of constituting unlawful assault, and whether the pleaded and evidential case disclosed a real prospect of establishing misfeasance.

1. Disclosure. The Hoddinott and Wilding reports were not relevant. They principally contained chronologies, recitations of evidence and opinions, while the underlying documents had been disclosed. Interpretation of the facts was for the tribunal of fact. No disclosure of the reports was ordered. Material in Dr O’Donnell’s notes concerning PC Sherwood’s mental or physical state at the time of the shooting, and any contemporaneous evidence of a drink problem, was relevant in principle, but the provisional ruling was overtaken by the disposal of the substantive claims.
2. Strike-out and summary judgment. The court applied CPR 3.4 and CPR 24.2. It should not resolve serious factual disputes or conduct a mini-trial, but the extensive disclosure and limited factual dispute permitted examination of the evidence. The Claimants had to show that the assault was unlawful, since force in self-defence was not unlawful. The evidence gave the assault claim no real prospect of success, and the admitted negligence provided recovery for the relevant loss. Summary judgment was therefore entered for the Defendant.
3. Misfeasance. The tort requires public office, exercise of public power, the requisite state of mind, duty to the claimant, causation, damage and remoteness. Untargeted malice requires knowledge that the officer lacked power and that the act would probably injure the claimant, or reckless indifference to those matters. Negligence, inadvertence, oversight, incompetence and failure properly to perform a duty do not suffice. An omission requires a legal obligation to act and a deliberate decision not to do so. Each officer’s conduct and state of mind had to be assessed individually.
4. The pre-shooting allegations showed, at most, serious negligence and failures in training, checking intelligence and planning. They did not identify a sufficient unlawful excess or deliberate omission accompanied by bad faith. Part One of the misfeasance claim was struck out. The post-shooting allegations were, at most, barely arguable, but had no real prospect of success. The independent investigation meant that the alleged common-law duty to conduct an equivalent investigation was unsupported. Summary judgment was entered on Part Two.

First-instance decision. The judgment does not state any prior appellate decision in the same proceedings.