B3/00/3270
Neutral Citation Number: [2002] EWCA Civ 920
IN THE SUPREME COURT OF JUDICATURE               
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(His Honour Judge Bartfield)
                                                                          Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Wednesday, 12th June 2002
B e f o r e :

LORD JUSTICE MAY

LORD JUSTICE SEDLEY

LORD JUSTICE RIX

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PATRICIA KELLY
Respondent

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THE CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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MR. G. POWELL (instructed by Messrs Praxis Partners, Leeds) appeared on behalf of the Appellant/Defendant.
MISS G. MIDDLETON (instructed by Messrs Irwin Mitchell, Sheffield) appeared on behalf of the Respondent/Claimant.
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J U D G M E N T
1.	LORD JUSTICE MAY: On 25th October 2001 this court gave judgment in an appeal by Mrs Patricia Kelly against two decisions of His Honour Judge Bartlett in the course of a civil jury trial in the Sheffield County Court when Mrs Kelly was bringing proceedings against the Chief Constable of South Yorkshire.
2.	The facts and circumstances of that appeal appear in the judgments which we gave on that occasion. It is not necessary to plough through all the detail. I think it is sufficient for the purpose of today's application simply to refer shortly to parts of the judgments. Paragraph 2 of the judgment which I gave summarised the facts in these terms:
“The facts which gave rise to the litigation are to a considerable extent uncontentious and may be summarised as follows. On 5th August 1995 the claimant went to a party at 56 Slade Road, Winton, Yorkshire, where she became involved in an argument with her sister. At about 8.40 in the evening Police Constables Hamshaw and Evers came to the house following a call from someone in it. Five minutes later they arrested the claimant for an offence under section 5 of the Public Order Act 1986. In the course of her arrest the police officers took hold of the claimant, placed her arms behind her back and handcuffed her. She was then taken to a police car and put in the back of it, so that she was lying in somewhat of a horizontal position across the rear seat. Police Constable Hamshaw got into the car and sat behind the driver's seat, sitting on top of her feet and lower legs. He did this, according to his own account, to restrain her from violence. Police Constable Evers then drove the car to Rotherham Police Station. During the course of the journey the car stopped suddenly in response to something that was happening in the rear seat and the claimant's body rolled forward. The precise circumstances of this were in dispute. But as a result of what happened the claimant sustained an injury to her left knee. At 10.50 pm the claimant was charged with an offence under the Public Order Act and with assaulting Police Constable Hamshaw in the execution of his duty contrary to section 51 of the Police Act 1964. She was then released and taken to Rotherham District General Hospital. She subsequently pleaded guilty to the offence under the Public Order Act together with an offence of obstructing Police Constable Hamshaw in the execution of his duty. The charge of assaulting him was not proceeded with.
3. Arising out of this series of events the claimant brought proceedings against the Chief Constable of South Yorkshire. She alleged that her arrest and detention were unlawful until she arrived at Rotherham Police Station at about 9.10pm. This was on the basis that she alleged that she was not informed of the ground of her arrest until she reached the police station. She further alleged that in the course of her arrest she was assaulted and beaten in that her right arm was pushed up behind her back causing her to scream out in pain. She was then further assaulted and beaten by Police Constable Hamshaw. She claimed that the injury to her left knee was caused by this assault. She claimed damages up to £50,000, including
aggravated and exemplary damages.” 
3.	The case proceeded to trial. At the end of the evidence the evidential position was that the claimant had given evidence in support of the then pleaded particulars of her case, to the effect that her left leg was struck by PC Hamshaw, and at the same time her body twisted on top of her left foot which had become caught. That was the cause of injury to her knee or leg. The police evidence, in very summary terms, was to the effect that there was no assault, but that PC Hamshaw had sat on the claimant's leg while she was in the car. The car had stopped suddenly and the sudden stopping may have been the cause of her injury. There was medical evidence in relation to her injury which, broadly speaking, was consistent with the police version of events and inconsistent with her evidence.
4.	In those circumstances, counsel on her behalf made two applications. The first was to amend the pleadings to say that the injury to her knee or leg had been caused in the way that the police said that it had been caused; that is to say, an alternative to her own case. The second application was that a further question should be put to the jury consequential upon that proposed amendment. The judge refused both those applications and the appeal to this court was against those decisions.
5.	The decisions having been made in the trial, the judge summed up to the jury and the jury reached some decisions. Those are summarised in paragraph 11 of my judgment on the previous occasion as follows:
“The effect of the jury's decisions, once the judge had summed up, was that they were satisfied that Police Constable Hamshaw told Mrs Kelly in Slade Road that he was arresting her for an offence under section 5 of the Public Order Act. Accordingly, her case for unlawful arrest and detention failed. The jury were not satisfied that Police Constable Hamshaw forcefully pushed Mrs Kelly's right arm up the back of her neck. Accordingly, that part of the assault case failed. They were not satisfied that Police Constable Hamshaw deliberately struck a blow at Mrs Kelly's left leg thereby unlawfully assaulting her. Accordingly, that part of her assault case failed. They were, however, not satisfied that the police constables used no more force than was reasonably necessary in placing her across the rear seat of the police car, nor that Police Constable Hamshaw used no more force than was reasonable by sitting on Mrs Kelly's legs. On this much reduced basis the assault case succeeded. Her damages were agreed thereafter at £250. In the main, the claim failed. The main part of it - that is, that the alleged assault caused the injury to her left knee - failed entirely.”
6.	It failed on her version of the facts because the jury rejected her version of the facts. It failed on the police officer's version of the facts, put very shortly, because it was not open to her to run the alternative case that her counsel and she wanted to run because the judge had refused the amendment.
7.	The decision of this court was that the judge was wrong to refuse the amendment. The reasons which we gave for that appear in the judgment. It is not necessary to rehearse them again. The judgments can be referred to to find what they were. In my judgment at paragraph 19 I expressed my conclusion in these terms:
“For these reasons, but not without hesitation, I have concluded that the judge was wrong to refuse permission and I would allow the appeal and permit the amendment.”
8.	The consequences of that then required consideration by the court, and it was necessary to decide the extent to which the findings and orders in the lower court should be set aside, and to determine the way in which, consequent upon this court having allowed the appeal, the matter should proceed. It is, I believe, fair to say that the court, certainly, and I believe also the parties through their counsel, all reckoned that a further jury trial was undesirable. I said in paragraph 19, immediately following the passage to which I have referred:
“I am strongly inclined to think that the time is past for asking the jury to rule on the question of fact and other means must be found of taking forward the consequences of this decision, if my Lords agree with it.”
9.	What then happened was that there was discussion with counsel on that topic. As Mr. Powell accepts, he, on behalf of the Chief Constable, agreed that the matter should proceed with the jury's findings of fact to stand. The court made an order to that effect. That appears in the order which has been drawn up. It also appears in the text of the transcribed judgment immediately following Rix LJ's judgment, where the text reads: 
“ Order: Appeal allowed; permission to amend given in the terms applied for; the jury's findings to stand.”
10.	In addition, the court gave liberty to apply. Again, my recollection accords with Mr. Powell's, to the effect that the purpose of that was to enable the parties to return if the court had perhaps overlooked administrative problems which the court's order should have taken into account but had not.
11.	Following the court's judgment, Mr. Powell, on instructions, initiated the application which is now before the court. He did so in a letter addressed to my clerk dated 13th November 2001, in which he wrote in these terms:
“Under the order of 25 October 2001 you gave the parties liberty to apply. On reflection the Chief Constable seeks an order consequent upon your allowing the appeal that the verdicts of the jury in respect of assault be set aside. The verdict in respect of false imprisonment is distinct and stands alone. He submits that there is no reason to interfere with it. However, the question for the jury in respect of the assault of Mrs Kelly by PC Hamshaw sitting on her is inextricably linked to the issue of the causation of the injury to her left knee. In addition questions about whether the force used was reasonable were left to the jury. Those questions also placed the legal burden of proof on the Chief Constable to show that the force used was reasonable. The matter of whether the force was reasonable is a matter of law for the judge not the jury. The legal burden of proof to establish an assault is on Mrs Kelly not the Chief Constable. In being fair to both parties the judge should be free to determine all of the allegations of assault, including those which Mrs Kelly failed to establish. For these reasons the Chief Constable submits that the verdicts in respect of assault should be set aside.”
12.	Mr. Powell apologises that the issues were not raised on 25th October, but he said that, through no fault of his solicitors, his instructions were delivered to his chambers shortly before the hearing, and counsel originally instructed was out of the country at the time.
13.	Mr. Powell accepts the point made by Miss Middleton in her skeleton argument before the court, that questions relating to the legal burden of proof in relation to two of the questions that the jury answered in relation to the assault charge, and whether those questions were in law questions for the judge or the jury were raised before the judge. He decided them in the way that he did. Those matters went before the jury as they did and the jury gave their decisions upon the questions put to them. Mr. Powell further accepts that no steps were taken by the Chief Constable, before the matter came before the court in October, to seek to appeal those parts of the conduct of the trial and the jury's decision consequent upon them. It seems to me, and I rather think Mr. Powell accepts, that it is not open to him to seek to have those jury decisions set aside on those grounds.
14.	The grounds that he puts forward today are, firstly, that the court has jurisdiction to reconsider the orders that it made; secondly, that it ought to do so because unfortunately he did not make the point that he now wishes to make when the matter was considered on 25th October, and, thirdly, that the judge may find it difficult to proceed with the matters which remain if perhaps he disagrees with the jury's verdicts. As to the latter, that seems to me to be no point at all. It quite often happens that judges have to proceed on a basis with which they personally disagree.
15.	As to the question whether this court has jurisdiction, I strongly suspect that in strict terms it does not. Mr. Powell has referred us to rule 3.17 of the Civil Procedure Rules. I am very doubtful whether that rule gives this court the power in this case to do what Mr. Powell would have us do.
16.	In substance, the position is this. This court, upon consideration and with assistance from the parties, made the decision which it did, which included that the decisions of the jury should stand and that the consequences of this court's decision should proceed on that basis. That is a decision which we made, not by mistake but having thought about it carefully and reckoning that that was the just and proportionate way to proceed with this tricky situation. The liberty to apply which we appended to the order was not, I am clear, given in order to enable the Chief Constable or the claimant to come back to this court and have another go at matters that might have been put before the court on a previous occasion but which were not. I am unpersuaded that the order that the court made on that occasion is one which we should now revisit. It was a conscious order, made intentionally and, so far as this court is concerned, for good reasons. It is not open to the Chief Constable to ask this court to think again. I would dismiss the application.
17.	LORD JUSTICE SEDLEY: I agree.
18.	LORD JUSTICE RIX: I agree.
Order: Application dismissed with costs, subject to detailed assessment if the parties cannot agree an amount, with a payment of £3,000 on account within 14 days.