Fit Up

by Faith Clifford

  Through the first quarter of 2007 there was various correspondence between Grundy and ourselves which seemed more like a fishing exercise for both sides. We were being asked questions that were difficult to answer without resorting back to Duncan, who was busy representing others, but we replied to these as best we could. We were floundering in our inexperience but we were not unduly concerned as we were to attend a directions hearing on 3 April with Master Eyre, whom the court had assigned to our case. Our Green Book informed us that this sort of hearing is an informal meeting which takes place if the two parties have not been able to resolve the dispute between themselves after a formal legal action has started. This hearing would be to discuss this or to limit issues to argue about through mediation or trial. In simple terms, it seemed that the Master was like a legal referee and the High Court website had said they were supportive of litigants in person, which gave us some encouragement that we would receive some fair assistance. So, when the hearing date arrived, it came as a bit of a shock as to how we were treated.

  We were back in London at this old Victorian building sitting on a wooden bench outside the room where Master Eyre would be presiding. At the end of the corridor was a tall, smartly dressed gentleman clutching a thick lever-arch file much like ours. In this out of the way corner I whispered to Jeremy that this guy must be Mr Allston, the barrister representing the police. I glanced in his direction discreetly only to catch him doing the same to us. Embarrassed, I quickly looked away, but I felt he was weighing us up to be easy pickings. This imposing court and the people in it made me feel small and inadequate but I was hoping that we had presented our case strongly enough for Master Eyre to direct us through to the next stages.

  Jeremy and I had ceased whispering as we felt our conversation could be overheard bouncing off the stone walls in this confined space. He occupied himself with a game on his mobile and I stared at the floor until the creaking hinges of a large wooden door next to us pierced the silence. A court clerk came out and ushered us and Mr Allston into a musty, wood-panelled room where we took up the seats in front of Master Eyre. With some indiscernible muttering as he shuffled through the papers we waited patiently for him to finish reading. I felt that I was back in school with the teacher looking through the efforts of my homework. He appeared a bad-tempered old man with his brow furrowed, as if he was coping with some kind of pain. There was some rocking back and forth with intermittent big sighs as he read, but when he spoke his words chilled me to the bone. Turning his silvery grey head in our direction, but with eyes tightly closed as if deep in thought, with a plummy voice he said, ‘Oh, no, this won’t do. The pleadings are not claimed properly and I have a mind that this claim be struck out.’

  So absolutely shocked was I to hear this that I really had to concentrate on which end of my body I was going to deal with. Either stopping myself from throwing up or losing control of my bowels! Jeremy looked as pained and as confused as me. The thought of our struggle all these years to get this far only for our fight for justice to be over in a matter of minutes was too much to bear. Once a claim is struck out it cannot be resurrected.

  Jeremy managed to speak up in his defence to say that he was a litigant in person, had been reliant on the guidance of law books with some legal advice to bring him to this point which had taken almost two years. He had prepared the Particulars of Claim as best he could and asked Master Eyre to please reconsider. There was that sighing again as he filtered through the sheets of paper and I began to pray that somewhere in that crusty, brusque exterior a compassionate heart was beating.

  Finally, after what seemed like an eternity awaiting his decision, he said that he would allow Jeremy to serve a draft amended Particulars of Claim on Hertfordshire Constabulary and that he would give guidance on what he expected it to contain. We thanked him and looked at each other still reeling from the shock of it all. We were then asked to wait outside for the order to be typed up and to be stamped. As the door closed behind us Jeremy said, ‘That was almost a disaster.’ I agreed and said that I had thought it was all over too but that he had saved the day magnificently.

  I sat between Jeremy and Mr Allston, which made me feel I ought to make some small talk to pass the time. My mind was racing with what to say first and I just said, ‘I suppose you must be used to waiting around the courts like this?’ Mr Allston smiled and said, ‘It came with the territory.’ I then added that I was relieved we had been given a second chance to which he said, ‘When you are caught up in the system it’s difficult to stop it.’ His statement caught my breath. He could only mean that he must have thought that the criminal case against Jeremy had gone too far for the law machine to stop before the damage had been done and no one was going to own up to that. I knew we had to fight on and that something was very wrong, which had been inferred by Mr Allston.

  A little while later the order was given to us and we were told to get it stamped. Obviously the questioning look on our faces enforced Mr Allston to instruct us what to do next. I guessed he felt that he was in the difficult position of acting for the other side but needing to guide us through the legal procedures in order to take his copy of the stamped order back to his chambers.

  We, on the other hand, had to think of what to do next to get our claim back on track. Jeremy had an idea and called Mark Afeeva to see if he could make some sense of the instructions on the order from Master Eyre. We had until the end of May to serve the amended Particulars of Claim, a period of just over eight weeks. It seemed like a long enough time, but that all depended on Mark’s availability to be able to help us.

  * * *

  Mark understood the instructions of the order from Master Eyre and we were able to issue our amended Particulars of Claim to Hertfordshire Constabulary within the time scale requested. A schedule of loss was prepared to support our special damages claim and was also attached, which, after our accountant had finished the earnings to Jeremy’s retirement, took our claim to almost £700,000. Well, we reasoned, you had to start high to see where we would level out. However, little did we know that Mark’s job was not as good as we thought it was and this document would come back to haunt us by the end of 2007.

  Jeremy took the opportunity to write to Grundy again with another Part 36 offer for £100,000 which she might like to consider against going to court for a possible compensation claim of up to £700,000, but this was rejected more or less immediately. This was followed up by another letter from her which informed us that she intended to write to the court seeking fresh directions for the progress of this case. Not long after that we received her amended defence in answer to our claim.

  We were struggling and the legal services of Hertfordshire Constabulary were taking advantage of our inexperience. If we were having difficulties in directing this case to a trial, how was Jeremy going to represent himself, question witnesses on both sides and pull it all together? Although Mark had kept our claim alive, malicious prosecution and misfeasance in public office were not his area of expertise and he was limited as to what he could advise without approaching his other colleagues first. We were now in August 2007, Mark was on holiday for two weeks and we appeared to be at a standstill. Jeremy knew of only one person that he could turn to and that was Andre Clovis, who was now working for Tuckers Solicitors in London.

  Jeremy had not been in communication with Andre for some time but quickly updated him on what had been happening while acting for himself. It turned out that Andre was now in a position to look at his case again and agreed to a meeting. He also said he would make an appointment with Leslie Thomas, a barrister, whom he often worked with and who specialised in police litigation. He was described as ‘the best there is’.

  For me it was some relief that the pressure would be off from the evenings spent preparing for a trial, although we had hoped that there would have been a settlement long before this.

  * * *

  Grundy’s first letter to Jeremy had suggested that he seek independent legal advice from a sol
icitor. She was probably regretting that comment after receiving Andre’s letter to inform her that he was now acting for Jeremy. No more procrastinating – this case was now on the move.

  Sitting in the comfortable reception area at the Garden Court Chambers in Lincoln’s Inn Fields, London, we anxiously awaited our meeting with the legendary Leslie Thomas. We had already read about him on the internet, where there were comments such as ‘noted to be the star of the set’, ‘the man to go to if you want someone to shout at the police’ and ‘puts fear into police officers’. He sounded very impressive and this most definitely sounded like our man.

  Finally, we were beckoned through and introduced to a very handsome black man. Immaculately dressed, he stood tall in his dark suit and crisp white shirt, his hair a mass of thin long plaits that hung down between his shoulder blades and were tied back neatly in a loose pony tail to reveal his strong facial features. Compared to some of the barristers I had seen walking the corridors of the courts, Leslie definitely had a commanding presence about him. He smiled warmly at us as he shook our hands and ushered us into a meeting room.

  We saw that Leslie had a copy of our ‘Bible’ and we quickly got down to business. He was brutally honest first off by saying that he had read through our file and had difficulty in seeing where our case was. We were momentarily taken aback by this but he added that, on closer inspection of Grundy’s letter of 5 October 2005, he noticed, as we had done previously, that she had written the whole series of events in detailed chronological order. Furthermore, Hertfordshire Constabulary had kicked their own door open for Jeremy to bring this claim against them, which was a serious tactical mistake on their part, and had it not been for this he would have advised on our case in a more negative light. In Leslie’s opinion, this was a case of ‘who knew what and when’ and with the response from Grundy written this way it had revealed that Hopkins knew that the images were found in temporary folders as his own expert, Fouhey, had told him prior to Jeremy’s return to bail interview but had proceeded with possession charges on top of incitement.

  Disclosure and the sort of documents that should be pursued were also discussed, as well as the subject of Colin Challenger, the barrister acting for the police. Leslie told us that Jeremy should consider this a risk factor when deciding whether or not to proceed with the case because Challenger often worked for the police and was a very clever defence barrister, renowned to be tough on witnesses. It was also advised that further information be obtained from the police, a reply to their defence be given and that the pleadings on our Particulars of Claim be re-amended. Leslie did not think these had been done very well. Acting for ourselves, we had barely scratched the surface of what needed to be done or realised how much information retrieval was necessary. In fact, he criticised us for attempting to litigate such a complex case without trained lawyers, because this could have a serious effect on costs, and whether we won or lost at trial. We had been approaching our case in very simplistic, one-sided terms and it was uplifting to have Andre and Leslie coming in to bat for us. Their expertise was going to come at a cost but during that afternoon we realised that if we carried on with this litigation ourselves, our amateur attempts to fight against the might of the establishment would be crushed before they began – as we had already experienced at the hearing with Master Eyre.

  Our meeting continued with discussions about what would happen in the following months and Jeremy was impatient to ask about the possible amount for compensation should we succeed. Leslie said that from what he could ascertain from the information in front of him, he would guess in excess of £100,000. We looked at one another, pleased with this possibility, as this would certainly go a long way to put right what had gone wrong in our lives.

  With the meeting at an end, we jumped into a taxi to make our way to the train station for our homeward journey. We were excited and uplifted that finally we had secured a formidable team who believed in the case and wanted to get the justice that Jeremy craved.

  Chapter 28

  A COSTLY MISTAKE

  Although Andre and Leslie were in possession of a copy of our file, which outlined our case, they knew that there were many documents missing. Due to our inexperience, we had not thought them relevant to include in the main file but would produce them to the defendants at the time of disclosure. These were duly handed over but Andre also had to make contact with Grundy to request a number of documents, together with requests for further information. Over the following weeks there were many lengthy telephone calls between Jeremy and Andre. I received updates in the evenings after work but I was glad to have been able to step back from all this during the hours away from home. After four years I was able to give my job most of my attention, with the exception of those times when Jeremy had to attend case management meetings, when I would spend my time waiting anxiously for his call.

  12 November was the second of these meetings and it was a comfort to me to know that Leslie would now be speaking for Jeremy. However, by the afternoon that feeling had soon turned to crushing disappointment when I heard that Master Eyre had put the boot in again.

  As Leslie had said, our ‘amended’ Particulars of Claim had been poorly done by Mark Afeeva and its shortcomings were brought to the fore. These had had to be re-amended and Master Eyre was criticising us for the fact that the changes had not been highlighted to show how it had been altered from the original. We would not have known this, but Mark Afeeva should have. Also, the claim was not clear on our allegations against Hopkins, and Master Eyre was giving us until 26 November to serve a draft re-amended Particulars of Claim on the police, setting a further hearing on 6 December 2007.

  On top of this, as this hearing had not really progressed the case, it was deemed a waste of time for the police and Jeremy was ordered to pay ‘the costs thrown away by the adjournment’, as it came to be described.

  Needless to say, Andre and Leslie were frustrated by this, but not surprised. We learned at an early stage that Leslie did not like to lose and was angry because this could have been avoided if we had not been so stupid as to take this litigation on ourselves. We had only considered representing ourselves so as not to eat into our savings and were encouraged by other stories of litigants in person who had gone up against police forces and been successful. However, it was unlikely that their cases would have been as difficult as ours – we were covering malicious prosecution and misfeasance, which are the hardest allegations to prove.

  We had been given a third and final chance to get our pleadings right. Leslie had it all to do in ‘re-amending’ the ‘amended’ Particulars of Claim and it became quite a colourful document with the highlighted changes from when Jeremy and I had originally created it, Mark’s dabbling with it and finally Leslie’s input. As requested by the court, this was served on the police in the time frame requested by them but when Jeremy attended the next case management meeting on 6 December, it turned out there was still a problem.

  There were two blows for us at this meeting. Master Eyre was becoming increasingly frustrated at the changing direction and lack of clarity with our claim and ordered that the special damages part (where we were looking for damages up to £700,000) be struck out, telling us that if we wanted to pursue special damages we should reformulate our claim, properly supported by evidence and make an application that he would ‘consider’. It was advised that this created uncertainty and that there was a real risk, even if formulated properly, Master Eyre might not permit us to amend our claim again. We were never going to be able to return to the subject of special damages, which was where the most compensation could be awarded. We were disheartened by this as the schedule that would be used by a judge, should we win, would limit our damages.

  There were other guidelines and timetables that were discussed for the legal teams of both sides to adhere to but the final shock was that by 20 December we had to pay £3,500 to the police for the wasted costs of the last hearing. That actually physically hurt to write a cheque to Hert
fordshire Constabulary, especially just before Christmas. It was a sickening moment in handing that cheque to Andre for onward transmission to Grundy. It was certainly turning out to be a good Christmas for her but for us, as we were now becoming accustomed, it was one overshadowed by uncertainty that we felt would surely follow us into 2008.

  Chapter 29

  TUGENDHAT’S RAGE

  We were back in the High Court in London for an application hearing with Leslie and Andre that warm May morning to request disclosure of documents that we suspected had not been passed over by Grundy. We were not required to be there, but it was always Andre’s preference for Jeremy to be in attendance just in case there were questions to be answered. I decided to go along to support Jeremy and, knowing as much about the case as he did, I could also offer some contribution.

  Challenger and Grundy joined us as we filed into another courtroom and seated ourselves on opposite sides before awaiting Mr Justice Tugendhat for the hearing. Leslie and Challenger indulged in polite banter as they laid out their papers on the desks before them while court clerks bustled around finalising preparations for the day’s first hearing.

  ‘All rise,’ said the clerk, a phrase that always made my stomach knot. I don’t know why, as Jeremy was no longer the accused but a claimant seeking his retribution. It was just the sense of the occasion, always so stiff and formal. I sat behind Andre and Jeremy with Leslie at the front, Challenger and Grundy to our right. Mr Justice Tugendhat appeared in front of us and gave a nod for us to be seated. Leslie remained standing to open up the hearing.

  ‘My Lord, I represent the claimant in this matter. My learned friend, Mr Challenger, represents the police.’