QUEEN'S BENCH DIVISION

Immunity can be decided pre-trial

Kinsella v Chief Constable of Nottinghamshire

Before Mr Justice Tucker

[Judgment May 5]

On a suit of negligence against a police force, the balancing assessment of all public policy considerations necessary to determine the question of immunity could be made at a pre-trial hearing, rather than by the trial judge, if there was sufficient material available on the pleadings.

Mr Justice Tucker so held in the Queen's Bench Division, sitting at Nottingham Crown Court, when allowing the appeal of the defendant, the Chief Constable of Nottinghamshire, against the decision of District Judge Oliver, dated January 29, 1999, to refuse the defendant's application to strike out part of the statement of case of the claimant, Audrey Kinsella, on the ground that it disclosed no reasonable cause of action.

Miss Valerie Easty for the claimant; Mr Simon Freeland for the chief constable.

MR JUSTICE TUCKER said that the claimant had alleged, inter alia, that during a search of her house the defendant's officers had negligently caused damage to her property.

The defendant had argued that it was immune from a suit of negligence, but its application to a district judge that the part of the statement of case alleging negligence be struck out as disclosing no reasonable cause of action was refused.

The judge had decided that the effect of the decisions in Swinney v Chief Constable of Northumbria Police ([1997] QB 464) and Osman v United Kingdom (The Times November 5, 1998) was that the balancing assessment of all the public policy considerations relevant to the question of immunity had to be carried out on the merits of the claim, and not on a strike-out application.

The Court of Appeal in Swinney had said that the interlocutory process was inapt to carry out the balancing exercise and that it should be done by a judge hearing the evidence at trial. In his Lordship's opinion, the general rule that the police, in the course of investigating or suppressing crime, were immune from suits of negligence, as a matter of public policy (see Hill v Chief Constable of West Yorkshire ([1989] 1 AC 53)) was unaffected by Swinney and Osman.

Those cases demonstrated that the general rule did not provide blanket immunity in all cases, but that in each case a balancing exercise had to be carried out.

Where it was apparent to the court that the general rule of immunity was not outweighed by other policy considerations, such as the protection of informers, the immunity continued to exist.

In his Lordship's judgment, in some cases the material for carrying out the balancing exercise was not provided by the pleadings, and the exercise fell to be performed by the trial judge after hearing the evidence.

Swinney had been such a case, since the court had not known from the pleadings whether or not the police were involved in investigating or suppressing crime at the relevant time.

In other cases there would be sufficient material evidence available on the pleadings to enable a decision to be taken at a pre-trial hearing.

In the present case there were no public policy considerations countervailing against immunity, nor had the police assumed any special duty of care towards the claimant, nor could it be disputed that the police were acting in the course of investigating a crime, so matters did not need to be left to the trial judge to decide.

There was nothing in the circumstances capable of outweighing the general rule of immunity. The relevant part of the statement of case would be struck out.

Solicitors: William Vaughan & Partners, Leicester; Browne Jacobson, Nottingham.