Case No: A2/2011/1664,
A2/2011/1664(A)
Neutral Citation Number: [2012] EWCA Civ 515
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
(MR JUSTICE FOSKETT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday, 19th April 2012

Before:

LORD JUSTICE RICHARDS

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	KINSLEY	Applicant	
	
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	THE COMMISSIONER OF POLICE FOR THE METROPOLIS	Respondent	
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(DAR Transcript of 
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The Applicant appeared in person.

The Respondent did not appear and was not represented.
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Judgment

Lord Justice Richards:

1.	This is a renewed application by Mr Kinsley for permission to appeal against an order of Foskett J dated 27 May 2011 refusing his application for interim relief.  Permission to appeal was refused on the papers by Maurice Kay LJ.  

2.	The case has a long history, which I do not propose to set out.  In summary, Mr Kinsley claims that police officers have engaged in a campaign of harassment against himself and his family.  A claim form seeking an injunction and other remedies against the Metropolitan Police Commissioner was issued in May 2007.  The claim was struck out but was reinstated in June 2010 on appeal to this court.  The judgment on that occasion, [2010] EWCA Civ 953, explains the background in some detail.  The court ordered that the case be assigned to a High Court judge nominated by the President of the Queen’s Bench Division for the purpose of, amongst other things, giving directions towards the trial.  Foskett J was the judge so nominated.

3.	Mr Kinsley succeeded in obtaining an interim injunction before the claim was issued, namely an injunction to the effect that, save as justified by law, the police were not to do or attempt to do anything amounting to harassment of Mr Kinsley or his family.  This was discharged in June 2007 on the giving of a like undertaking by the defendant.  But soon afterwards, the defendant was released from that undertaking by the court.  In February 2011, Mr Kinsley applied for a reinstatement of the interim injunction.  This was the application eventually determined by Foskett J in May 2011.  

4.	The recent incidents driving the application before the judge were summarised by him at paragraphs 23 to 30 of his judgment, though the judge made clear that they had to be viewed against the background of the attention Mr Kinsley had received from the police over the years, before and after his claim had been brought.

5.	The specific background to the recent incidents was the clamping of one of Mr Kinsley’s vehicles by a wheel clamping company in May 2010 when it was parked in a communal area.  He brought a successful claim for damages in respect of that incident.  But there were then further incidents between February and April 2011 involving alleged interference by him with wheel clamps or with signs relating to wheel clamping.  On each occasion the police were called, and Mr Kinsley was arrested and charged with offences which included criminal damage, theft, and assaulting a police officer.  On at least one of the occasions, as well as on one or more earlier occasions, a camcorder with which Mr Kinsley or his wife were seeking to record events was confiscated by the police.

6.	Foskett J pointed to the existence of conflicting accounts of what had happened on the occasion of these incidents.  At that time, trials in the Magistrates Court or Crown Court were variously awaited.  Mr Kinsley tells me today that they have all been resolved in his favour.  Moreover, at the time that Foskett J was considering the matter, no evidence had been given by any witness in the civil proceedings, and, as he said, no firm conclusions could be drawn about what had been going on.  The judge took the view, however, that there was a serious issue to be tried, and that the recent events were part of that issue.  

7.	He then asked himself whether the balance of convenience supported the grant of an injunction.  He said that, since the interventions of the police recently seemed to have been prompted by calls from members of the public, rather than as a result of initiatives by the police themselves, it was difficult to see how it was arguable that their attendance of itself amounted to harassment, or at least it was not conduct that fortified the need for an order.  But whether the conduct of the police on arrival amounted to harassment was a matter for consideration at the substantive trial.  The present circumstances in which the police came to be called did not suggest that an order in the terms sought was necessary.  The judge also took into account that the injunction preventing harassment could operate as a disincentive to police officers to do their ordinary job.  He said that such an injunction would require much stronger evidence of actual recent harassment than was available in this case.  

8.	The judge gave specific consideration to whether to impose an order to prevent the confiscation of the camcorder, but he decided that it was impossible to formulate an order that would work and that on balance he should leave matters to be dealt with by way of directions in the civil proceedings and to be dealt with by the criminal courts as the issue arose in the criminal proceedings.  He said that an interim order risked impeding the police in carrying out their duties.

9.	The judge went on to consider whether damages would, in any event, be an adequate remedy.  He took the view that financial recompense for the alleged wrongdoings, if established, was arguably available, and that this represented another reason for not granting an interim injunction. 

10.	The judge therefore refused the application for an interim junction, but he stressed that Mr Kinsley would be able to claim relief in the substantive proceedings, which is where his focus ought to be.  Whilst he ordered Mr Kinsley to pay the defendant’s costs of the application, he directed that the costs order was not to be enforced until the conclusion of the proceedings.

11.	Mr Kinsley has appeared in person before me, as he did before Foskett J.  His formal grounds of appeal are in summary that the judge: (1) required a much higher degree of proof than demanded by the balance of convenience test; (2) erred in failing to take into consideration audio, video and photographic evidence relied on by Mr Kinsley; (3) wrongly refused an interim injunction in the face of overwhelming evidence in favour of its grant; (4) wrongly awarded costs in favour of the defendant; (5) failed to take proper steps to protect Mr Kinsley and his family from harassment; (6) failed to take proper steps to preserve evidence of recordings made by Mr Kinsley; and (7) set a very dangerous precedent in violation of Mr Kinsley’s human rights.

12.	Those grounds have been elaborated in a written skeleton argument and a written commentary on Foskett J’s judgment, documents which between them extend to some 45 pages of closely-typed material.  Mr Kinsley has also produced an additional ten-page written witness statement for the purpose of today’s hearing, which in part provides a further elaboration of points already made but also includes allegations going beyond those in the grounds of appeal, including allegations of bias, predetermination and subconscious racism on the part of Foskett J.  The document is expressed in unhelpfully strong language, and Mr Kinsley has sensibly asked me today to put those particular criticisms of the judge on one side.

13.	That brings me to the oral submissions which he has made today, by way of reinforcing the case advanced in writing.  He has shown himself to be an enthusiastic advocate in his own cause, understandably emotional about the case and the position in which he finds himself.  Having said that, I make clear that I understand the burden involved in seeking to advance in person a case of this factual detail and importance for him against the police.

14.	Despite the vigour with which Mr Kinsley has advanced his submissions before me, I do not accept that any of the grounds of appeal has a real prospect of success.  The judge’s decision involved an exercise of discretion or judgment of a kind with which an appellate court is very slow to interfere.  I am satisfied that the judge considered the application within the correct legal framework and reached a decision reasonably open to him on the material before him.  As to that material, it was in my judgment open to him, in the exercise of his discretion in an interim application of this kind, to proceed by reference to the written material without seeing and hearing the video and audio recordings relied on.  Having considered the material before him, the judge found in Mr Kinsley’s favour that there was a serious issue for trial, and he therefore proceeded correctly to consider the balance of convenience.  I see nothing wrong with the factors he took into account in deciding where the balance came down.  Nor can it be said that his conclusion as to where the balance came down was plainly wrong.  Moreover his decision to leave the question of confiscation of the camcorder to be dealt with elsewhere in civil or criminal proceedings, rather than on the application for interim relief, was one reasonably open to him.  

15.	I should also make clear that there is not the remotest basis for the allegations of bias, predetermination or subconscious racism, and as I think Mr Kinsley now recognises, it does no service to his case that he should have thought fit to include such allegations.  

16.	In summary, this is not a case where the Court of Appeal would interfere with the order made by the judge.  

17.	I should mention that Mr Kinsley seeks, in addition, to rely on fresh evidence concerning incidents or factual matters post-dating the judge’s refusal of interim relief, together with photographs and video and audio recordings relating both to those more recent incidents and to earlier incidents considered by the judge.  He submits that the evidence concerning these matters supports his case for the order he is seeking from the court, and indeed that it shows an escalation in the problem in respect of which he now seeks relief.  He also says in his written material that it is more than likely that other incidents will occur before the conclusion of the appeal, if permission to appeal is granted, and he suggests in effect that the court should review for itself the application for interim relief, with the benefit of all the evidence available by the time the appeal is heard.

18.	Maurice Kay LJ, in refusing permission on the papers, said that if evidence of further incidents was to be considered in the context of interim relief, such consideration should take place pursuant to an application on notice within the proceedings in the High Court.  I agree.  Evidence of the kind now relied on by Mr Kinsley (and I refer to further evidence in respect of previous incidents as well as to evidence of further incidents) cannot provide a basis for showing that the judge erred in refusing the interim injunction.  If Mr Kinsley wishes to pursue the question of interim relief on the basis of that additional material, the proper course is a further application to the High Court.  

19.	Like Maurice Kay LJ, however, I should not be taken as encouraging such a course.  On the contrary, I take the view that such a course is likely to be unproductive and a waste of cost and effort.  It is plainly in the interests of Mr Kinsley and his family for this case to be progressed to an early trial, rather than getting bogged down in further interim applications.  Mr Kinsley has emphasised what he says is the actual hell he and his family have suffered over the years.  What is needed to resolve the issues he raises is a final substantive hearing.  It is very unfortunate that this resolution has been delayed by a dispute over legal aid funding in relation to the substantive hearing.  I very much hope that that dispute can be decided in a way that enables the substantive hearing to take place expeditiously.

20.	I should add, finally, that in so far as Mr Kinsley seeks to challenge the costs order made by Foskett J following refusal of the application for interim relief, the challenge is hopeless.  This court is, again, very slow to interfere with a first instance judge’s exercise of discretion with regard to costs, and no tenable basis has been shown for intervention in this case.

21.	For all those reasons, the application before me is refused.

Order:  Application refused.