Ashley & Anor v Sussex Police

In a civil claim for battery, once intentional force is proved, self-defence is a defence which the defendant must establish on the balance of probabilities. The defendant must show an honest and reasonable belief that force was necessary against an attack or imminent attack, and that the force used was reasonable. Reasonableness is assessed in all the circumstances, including the need to act in the heat of the moment. These civil rules differ from criminal self-defence, where an honest mistake may suffice.

Summary judgment was unavailable where the evidence raised real factual disputes. A civil battery claim could proceed despite admissions of negligence and a criminal acquittal. The post-shooting misfeasance claim also had a real prospect of success, but damages issues should be tried first. Relevant investigation reports were disclosable despite class PII, subject to redaction and timing.

The claim arose from the fatal shooting of James Ashley by a police officer during an armed raid. The appellants brought claims in battery, negligence, false imprisonment and misfeasance in public office. Liability for negligence and false imprisonment, and for resulting compensatory losses, was admitted.

Dobbs J struck out or gave summary judgment for the respondent on the battery and post-shooting misfeasance claims and refused disclosure of investigation reports. On appeal from [2005] EWHC 415 (QB), the issues included the burden and content of self-defence in civil battery, the prospects of the misfeasance claim, case management, and disclosure of the Wilding and Hoddinott reports.

1. Battery. The appeal was allowed. In civil proceedings, the defendant bears the burden of proving self-defence. The defendant had to show that the officer honestly and reasonably believed that defensive action was necessary against an attack or imminent attack, and that the force used was reasonable in all the circumstances, including the urgency of the situation. The differing criminal rules and the criminal acquittal did not determine the civil issue. Conflicting accounts and expert evidence meant that the appellants could not be said to have no real prospect of defeating the defence under Part 24 of the Civil Procedure Rules 1998.
2. Abuse and declaratory relief. By a majority, the battery claim could proceed despite the admissions of negligence and the acquittal. The civil court determines legal rights and may grant declaratory relief, although such relief remains discretionary. Lord Justice Auld would have stayed the claim as an abuse because its practical purpose was a declaration following the criminal acquittal and the civil courts should not operate as a substitute for a public inquiry.
3. Misfeasance. The principles stated in Three Rivers District Council v Bank of England, [2003] 2 AC 1, applied. The pleaded allegations of deliberate unlawful conduct or recklessness, including misleading public statements, interference with an investigation and fabrication of evidence, had a real prospect of success. Summary judgment was therefore set aside. However, the issue of injury and compensatory damages was to be tried before further steps on liability, since damage was an essential ingredient and exemplary damages required compensatory damages: Watkins v Home Office, [2006] UKHL 17.
4. Disclosure. The judge had erred in treating the reports as irrelevant. Relevance was distinct from admissibility, and the opinions could assist in formulating the case and cross-examining witnesses. Although the reports attracted class PII, the public interest in disclosure of relevant material outweighed confidentiality, subject to appropriate redaction and directions on timing.

1. Court of Appeal (Civil Division). Appeal from the order of Dobbs J was allowed. The battery and post-shooting misfeasance summary judgments were set aside, subject to staged case management of the misfeasance claim. Disclosure of the relevant reports was ordered subject to redaction and further directions.
2. High Court of Justice, Queen’s Bench Division. Dobbs J made the order dated 21 March 2005, reported at [2005] EWHC 415 (QB), striking out or dismissing the battery and misfeasance claims and refusing disclosure.