Senior judge berates government lawyers over handling of MoJ negligence claim

MoJ: “careless errors”

A lady justice of appeal has berated the Government Legal Department (GLD) over its defence of a negligence claim brought by a prison officer against the Ministry of Justice (MoJ), saying its “lack of focus” led to a “huge workload which was wholly disproportionate to the real issues”.

Lady Justice Thirlwall, sitting as a judge of the High Court, said government lawyers announced before the trial that a witness would be giving evidence who had died in prison months ago.

“There were undoubtedly flaws in the way some of the statements were drafted,” Thirlwall LJ said. “Witnesses were interviewed and notes taken but the statements were not drafted for many months or even years.

“This is not a method likely to achieve the best evidence. I am quite sure that this was done because the pressure of work did not allow for the best preparation and not for any sinister reason.”

Thirlwall LJ went on: “The lack of focus in the defendant’s case led to a huge workload which was wholly disproportionate to the real issues.

“That is why statements were served well out of time, with no explanation and why careless errors were made.”

She was ruling in Marsh v Ministry of Justice [2017] EWHC 1040 (QB). The court heard that James Marsh sued the MoJ for psychiatric injury following a prolonged period of suspension from Downview women’s prison in Surrey.

The MoJ responded by arguing that the claimant was guilty of misconduct and would have been dismissed in any event, had he not been dismissed for ill health following his return to the prison.

On the pleadings, Thirlwall LJ said the amended particulars of claim was 38 pages long and the amended defence ran to 114 pages.

“Both pleadings are far longer than was necessary to identify the issues in the case. The defence in particular includes unnecessary detail, much of which is irrelevant to the claimant.

“Had proper focus been applied at an earlier stage the trial would have taken at most eight days, instead of the 15 that it occupied.”

Thirlwall LJ said counsel for the claimant “raised a number of concerns” at the pre-trial review about the defendant’s approach to the litigation.

“Several of the witness statements submitted on behalf of the defendant contained passages that were identical.

“The information given by the defendant to the claimant’s solicitors in advance of and to the court during the pre-trial hearing about the availability of witnesses to give evidence was inconsistent and on occasion simply incorrect.”

For example, the judge said the defendant had said a ‘Ms Noakes’ would be giving evidence, while in fact “she had died in prison some months earlier”.

“Whilst I can well understand that no individual can know the whereabouts of all potential witnesses, the reassurance being given to the court was based on nothing and so should not have been given.

“There were several less obvious inaccuracies and misleading statements which it is not necessary to rehearse.”

At the trial, Thirlwall LJ said she heard evidence from 29 witnesses over 15 days, having refused an application to extend the time estimate.

“I considered then as I do now that the proposed number of witnesses and documents was wholly disproportionate to the issues and value of the claim. I set a limit on the number of witnesses to be called and imposed a cap on the number of pages in the bundles to 3000.”

Thirlwall LJ said Surrey Police were invited to investigate Downview Prison in 2009 to investigate “allegations of widespread corruption”, mainly that the prison officers were “involved in sexual misconduct with prisoners”.

This culminated in the suicide of a prison officer the night before his trial for misconduct in 2011 and the imprisonment of one of the governors, Russell Thorne, for five years.

A new governor from another prison launched an investigation into alleged misconduct by Mr Marsh, but the only charge, a “slapping allegation” was dismissed in 2012.

Thirlwall LJ rejected “in its entirety” the MoJ’s defence to the negligence that Mr Marsh was guilty of misconduct which would have led to his dismissal.

She also rejected the claimant’s argument that the solicitor for the defendant at the GLD acted with an “excess of zeal” and when dealing with witnesses was “too close to the case”.

Lady Justice Thirlwall dismissed the claimant’s application that the MoJ’s defence should be struck out as an abuse of process of the court, but gave judgment in favour of the claimant.


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