Alder v Humberside Police & Ors

In statutory race discrimination claims, treatment is not confined to face-to-face dealings. Deliberately ignoring or marginalising a person’s legitimate concerns may constitute less favourable treatment, even where the concerns relate to evidence or the conduct of a prosecution. The statutory exclusion for decisions not to institute or continue criminal proceedings does not immunise all conduct connected with a prosecution. On strike-out, the court asks whether the claim discloses reasonable grounds and is clearly incapable of succeeding. Fact-sensitive discrimination claims should generally proceed where inference and nuance may be material. A claim for psychiatric and pecuniary loss may be sustainable despite pre-existing vulnerability. The wrongdoer must take the claimant as found, and alleged overpleading is ordinarily for revision or trial rather than strike-out.

Janet Alder, the sister of Christopher Alder, brought civil proceedings against the Crown Prosecution Service alleging that its officials treated her in a racially discriminatory manner through rudeness, indifference and failure to heed concerns about the police prosecution arising from her brother’s death in custody. She also claimed psychiatric harm and associated pecuniary loss.

The Central London County Court struck out paragraph 8.7 of the pleading, refused an amendment to the schedule of loss and gave summary judgment against the pecuniary-loss claim. The appeal concerned whether ignoring the claimant’s concerns could amount to treatment under the Race Relations Act 1976, and whether the amended loss claim was legally and evidentially sustainable.

The Court of Appeal, in the judgment of Sedley LJ with which Lloyd LJ and Sir Anthony Clarke MR agreed, allowed the appeal unanimously.

1. On a strike-out application, the court must determine whether the statement of case discloses reasonable grounds for bringing the claim under rule 3.4(2) of the Civil Procedure Rules 1998. It should not decide the issue by weighing the practical implications of allowing the case to proceed to trial. The relevant question is whether it is clear and obvious that the claim cannot succeed, applying the approach discussed in X v Bedfordshire CC [1995] 2 AC 633. The fact-sensitive nature of discrimination claims, emphasised in Anyanwu v South Bank Student Union [2001] 1 WLR 638, made striking out inappropriate.
2. Under section 1 of the Race Relations Act 1976, treatment is not confined to face-to-face dealings. In the relevant context it can include the way in which the CPS dealt with, or deliberately failed to deal with, the claimant’s expressed concerns. The fact that those concerns related to evidence or the conduct of the prosecution did not prevent them from being pleaded as matters by which the claimant was allegedly treated less favourably on racial grounds.
3. Section 19F did not make every aspect of prosecutorial conduct immune from inquiry. It ringfenced decisions not to institute or continue criminal proceedings, and broadly any input into those decisions, but did not prevent examination of how the CPS behaved towards the claimant. The inquiry had to remain confined to proof of treatment and could not extend into an impermissible challenge to the merits of prosecutorial decision-making. Paragraph 8.7 was therefore restored, in its original or suitably tidied form.
4. The claim for psychiatric harm and associated pecuniary loss was sustainable in principle. If the CPS was a wrongdoer, it had to take the claimant as found. The relevant question was whether its treatment aggravated or prolonged her existing problems. Possible overstatement of the figures, or the absence of evidence attributing a particular day’s loss to the CPS, did not justify striking out a claim supported by pleadings and evidence capable of sustaining causation. The amendment was allowed and the pecuniary-loss pleading restored.

1. Court of Appeal (Civil Division): Appeal allowed. Paragraph 8.7 was restored, and permission was given to amend and pursue the pecuniary-loss claim.
2. Central London County Court: HH Judge Collins CBE struck out paragraph 8.7, refused the proposed amendment to the schedule of loss and gave summary judgment for the CPS on the pecuniary-loss claim.