Mohidin & Ors v Commissioner of the Police of the Metropolis & Ors

Under section 2 of the Civil Liability (Contribution) Act 1978, contribution or indemnity is determined by what is just and equitable, having regard to each person’s responsibility for the damage. Responsibility includes both the seriousness of the person’s fault and its causal relevance. The court must not treat the defendant’s litigation strategy, the individual’s means, or general policy considerations as displacing that statutory focus. A chief officer may recover an indemnity from police officers whose serious misconduct caused the damage for which the chief officer is vicariously liable. Apportionment must reflect relative fault and causation. Costs attributable to the defendant’s own decision to reject a Part 36 offer, including enhanced interest and indemnity costs, should not ordinarily be passed through as an indemnity. Costs issues should otherwise be dealt with on detailed assessment.

The Commissioner of Police was held liable in the main judgment for tortious misconduct against Omar Mohidin and Basil Khan, while Ahmed Hegazy’s claim failed. The Commissioner had brought Part 20 claims under the Civil Liability (Contribution) Act 1978 against four officers involved in the incident, seeking indemnity or contribution for damages and costs.

The present judgment determined whether the claims against the officers should succeed, how responsibility should be apportioned, and what costs orders should follow. The central issue was whether indemnity or contribution was just and equitable having regard to the officers’ responsibility for the damage.

1. The claims against Steven White and Neil Brown were dismissed. The Commissioner was ordered to pay their reasonable costs of defending the Part 20 claims. The claims relating to Ahmed Hegazy were dismissed against Mark Jones and William Wilson, as was the claim against William Wilson relating to Omar Mohidin.

2. Section 2 of the Civil Liability (Contribution) Act 1978 supplied the governing test. The question was whether the contribution or indemnity was just and equitable, having regard to the extent of each person’s responsibility for the damage. That responsibility included both the degree of fault and the degree to which the fault contributed to the damage, as explained in Downs v Chappell [1997] 1 WLR 426.

3. The Commissioner’s neutral stance in the main claims did not prevent recovery. The critical question was responsibility for the torts and damage, not the permissible procedural route by which that responsibility had been established. The officers’ means, policy arguments concerning police work, and the Home Office guidance did not answer the statutory question.

4. The conduct was serious, deliberate misconduct rather than an excessive reaction in a difficult policing situation. Jones was wholly responsible for the torts and damage suffered by Mohidin. Jones and Wilson were both responsible for the damage suffered by Khan. Jones bore 60% and Wilson 40% of that responsibility, reflecting Wilson’s supervisory responsibility and participation in, or acquiescence in, the misconduct.

5. The indemnities covered damages and costs on a standard basis. They did not include the 10% damages uplift, enhanced interest, or the additional burden of indemnity costs arising from the Commissioner’s own decision to reject a Part 36 offer. The approach in McPhilemy v Times Newspapers Ltd (No 2) [2001] EWCA Civ 933, and the related authorities, did not justify passing those consequences to the officers.

6. Costs were referred for detailed assessment under CPR 44.6, CPR 47 and paragraph 8.1 of the costs Practice Direction, on the standard basis. The overall costs of the litigation could not be compared mechanically with the damages to determine proportionality. The reasonableness and proportionality of particular costs were matters for assessment.

First-instance decision. The judgment determined contribution, indemnity and costs issues following the earlier judgment in Mohidin & Anor v Commissioner of the Police of the Metropolis & Ors [2015] EWHC 2740 (QB).