Ashley & Anor v Sussex Police

Disclosure must be assessed by reference to the issues raised by the parties’ statements of case. It is not available to investigate an unpleaded case, including a claim for aggravated damages based on conduct outside the claimant’s knowledge. Where a defendant is sued only vicariously, the defendant generally stands in the shoes of the alleged tortfeasor and may rely on any defence available to that person. The court should not order wider disclosure merely to support a hypothetical argument for extending or reforming the law, particularly where the relevant legal issue can be determined separately or the disclosure would be disproportionate.

The claim arose from the fatal shooting of James Ashley during a police raid. The remaining disclosure dispute concerned redactions in the Moonstone Report supplied by the Chief Constable of Sussex Police. The claimants sought wider disclosure of material concerning the planning and execution of the raid, the briefing given to PC Sherwood, and possible misconduct by other officers.

The claim was brought against the Chief Constable, and extensive negligence admissions had been made. The court had to determine whether the proposed material was relevant to the pleaded issues, including the reasonableness of PC Sherwood’s belief and the quantification or aggravation of damages, or whether disclosure was being sought to develop an unpleaded argument concerning inaccurate briefing and vicarious liability.

1. Disclosure criteria. The court applied Civil Procedure Rules Part 31 by reference to the outstanding issues in the statements of case. Those issues concerned whether PC Sherwood believed that he was under attack, the reasonableness of that belief, and damages. Material concerning wider misconduct was not relevant merely because it might reflect adversely on the defendant.
2. Aggravated damages. Conduct can support aggravated damages only where it is pleaded and caused additional hurt to the claimant’s feelings. Conduct outside the claimant’s knowledge could not have that effect. Disclosure could not be used to fish for an unpleaded case, whether concerning aggravated damages or any other issue.
3. Vicarious liability. Under section 88(1) of the Police Act, the Chief Constable was the only defendant and was sued on the basis of vicarious liability for PC Sherwood’s acts or omissions. In applying the ordinary principles of vicarious liability, the Chief Constable stood in PC Sherwood’s shoes and could rely on any defence available to him. Wrongdoing by other officers, for whom the Chief Constable might also be responsible, was not relevant to judging PC Sherwood’s legal responsibility for the shooting.
4. Inaccurate briefing. The observations of Arden LJ in the Court of Appeal and Lord Neuberger in the House of Lords, reported at [2007] 1 WLR 398 and [2008] 2 WLR 975, were dicta expressing possible future development of the law. They did not purport to state the law as it stood. The court therefore refused to order disclosure on the hypothetical assumption that the claimants would ultimately establish such an exception to vicarious liability.
5. The wider disclosure was neither necessary nor proportionate. The defendant gave limited further disclosure, but the court rejected the claimants’ broader criteria and confirmed that the disclosure decision rested on the narrower approach identified in paragraph 3.

The judgment refers to earlier decisions in the same litigation, including the court’s judgment on inspection of documents at [2008] EWHC 3151 (QB), a Court of Appeal decision reported at [2007] 1 WLR 398, and a House of Lords decision reported at [2008] 2 WLR 975. The present judgment determined the remaining dispute over redactions in the Moonstone Report.