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News | Fri 23rd Mar, 2018
This week Gurion Taussig successfully defended G4S Secure Solutions UK Ltd (‘G4S’) in an appeal in the High Court, Chancery Division, Birmingham District Registry. The claim against G4S was brought in the tort of false imprisonment. Gurion was instructed from the outset, drafting the Defence, advising throughout and successfully defending the claim last year at a three-day trial before Upper Tribunal Judge Allen sitting in Birmingham County Court.
The matter concerned events at the Heartlands Hospital Birmingham in April 2012. The claimant’s three-year old daughter, A, had been admitted to the hospital with suspected pneumonia. Frustrated at a perceived lack of medical attention the claimant decided to remove A and return to his GP. The hospital advised him not to but the claimant nevertheless took A away from the ward and proceeded to their car which was parked in the hospital car park.
A member of the hospital’s security staff, Mr Akram, who was employed by G4S was informed of events and he began observing the claimant from a CCTV monitoring room. From his remote position, Mr Akram could see the claimant in the car park removing A from the premises. He called the police to explain what was happening. The contents of his phone call with 999 were to become the subject of the claim. Of particular relevance were the following words: ‘Yes this is security at Heartlands Hospital, one of our warders reported a parent taking a child off the ward that’s got a child protection order on it.’ Mr Akram went on to describe the claimant and his wife putting the child into the car.
The police responded to the phone call by stopping the claimant’s car once it had already left the hospital. PC Weller arrested the claimant for kidnap. In due course, the police discovered that no ‘child protection order’ existed and the claimant was de-arrested. He was however re-arrested for neglect. The claimant was detained by police for 20 hours but eventually released without charge.
The claimant brought a claim against the NHS Trust and G4S. The claim against G4S was brought in the tort of false imprisonment. The claimant alleged that Mr Akram had directed and/or requested and/or encouraged and/or procured the arrest by reason of his conversation with the police.
At first instance and on appeal it was accepted that the Court of Appeal decision in Davidson v Chief Constable of North Wales  2 All ER 597 provided the key statement of the law. Davidson involved a store detective at Woolworths who mistakenly thought she saw a customer stealing a cassette and informed police, who duly arrested the customer. The Court of Appeal held that the store detective was not liable in false imprisonment because she only laid information before the police for them to act upon or not as they saw fit.
In Ali, the claimant argued that Mr Akram’s actions in phoning the police and telling them that there was a child protection order in existence had gone beyond laying information, and effectively placed the police in a position in which they were duty-bound to act without discretion. The trial judge accepted that it was Mr Akram who was the source of the ‘child protection order’ phrase although he acted in good faith. Judge Allen dismissed the claim, finding on a construction of the transcript of the 999 call that Mr Akram had done no more than lay information before the police and there was, as in Davidson, an absence of words or actions suggesting he had done anything more.
On appeal, the claimant renewed his arguments, in particular that the trial judge had failed to consider the effect of Mr Akram’s words upon PC Weller, and the consequences of him alleging there was a ‘child protection order’ in existence. The claimant relied upon dicta of Warby J in Barkhuysen v Hamilton  EWHC 2858 (QB), where he appeared to identify a ‘wider’ principle that an assessment should always be made of the causal impact upon the police of an informant’s words or action. The claimant submitted that the correct inference to draw was that from the police officer’s point of view, Mr Akram had ‘made a charge on which it becomes the duty of the constable to act’. Those words come from an extract from Clerk & Lindsell on Torts referred to by Warby J in Barkhuysen.
Mr Justice Birss, however, was not persuaded. He considered Judge Allen had correctly applied the principles set out in Davidson and that it was irrelevant to consider the consequences of the words used; the relevant question was whether Mr Akram’s language and actions did or did not do more than lay information before the police. Birss J concluded that Mr Akram had neither directed nor requested nor encouraged or otherwise procured the arrest and that the index situation was analogous to Davidson. In a key passage, he stated:
‘In my judgment the distinction between merely providing information, and going beyond that to establish liability, at least in part, arises from the nature of this type of claim and liability. The essential test is whether what the defendant did had the effect of turning the police into their agent or as someone whom the defendant procured to act as they did’.
The case illustrates the operation of the settled principles set out in Davidson. It also provides welcome clarification to the unhelpful ambiguities in the judgment in Barkhuysen, wherein Warby J came close to suggesting that the test should focus upon assessment of the causal link between the information provided and the arrest. The judgment of Birss J is a helpful reminder that that the focus in considering liability in false imprisonment should solely be upon the language and actions of the informant in his or her dealings with the police.
Abdulrazaq Ali v (1) Heart of England NHS Foundation Trust (2) G4S Secure Solutions UK Ltd  EWHC 591 (Ch).
Gurion was instructed by G4S Legal Department (Alan Cameron, Litigation Lawyer).