MPS decision making in malfeasance litigation

Report: 10
Date: 25 April 2002
By: Commissioner

Summary

This report sets out the strategy, processes and key factors involved in MPS decision making in malfeasance litigation. The Directorate of Professional Standards (DPS) set the strategy and make the decisions as the 'client' for civil actions. The Directorate of Legal Services (DLS) provide legal advice and conduct the cases on behalf of the Commissioner. In 2001/02 malfeasance compensation spending was the lowest for eight years, and the civil trial 'win rate' exceeded 70%, against a target of 60%. A more detailed workshop or presentation on DLS processes is being arranged for Members.

A. Recommendations

Members are asked to note the MPS decision making process in malfeasance litigation cases.

B. Supporting information

1. At the MPA meeting on 28 February 2002, it was decided that the MPA should receive a report on the MPS processes involved in deciding whether malfeasance cases should be defended or settled.

Decision making & risk management

2. The DPS includes a Civil Actions Command, headed by a Detective Chief Superintendent (DCS). In most cases the DCS sets the strategy and makes the decisions re settlement or defence as the 'client' for civil actions. In significant or exceptional cases the decision-making role is taken by the DPS Commander.

3. The merit of cases is key in decision-making, but often there are wider risks. Some malfeasance cases also involve misconduct proceedings. Publicity surrounding civil actions against the MPS can adversely affect public confidence in the MPS, and the attitude of MPS staff. These wider risks are assessed by the DPS decision-maker.

4. Exceptional and significant cases are reviewed weekly by DPS, and fed into the MPS risk management process. The weekly case summaries are provided to the MPA, with a comprehensive list being updated quarterly. Further details are included in the MPA / MPS Protocol on Compensation Cases.

5. As cases progress and additional information is obtained (e.g. witness statements, factual reports, medical or expert evidence) there are stages when DLS seek instructions from the DPS decision-maker as to whether to settle or defend, and on the level of settlement or protective payment into court. Instructions will be obtained on at least three occasions before a case is heard at trial. Further updates are provided in many cases.

6. Strong or deserving claims against the MPS are identified as soon as possible. The MPS endeavours to settle them swiftly or make early and realistic payments into court. In 2000/01 over two hundred threatened actions or civil actions were settled, which is several times the number of cases that went to trial. When a claimant has clearly been treated badly or there is no justification for police action, the MPS will also consider making an early and meaningful apology. If the MPS cannot be confident of winning a case, then it will not normally be defended. The new Civil Procedure Rules encourage early assessment of cases and this is the aim of the MPS.

7. Experience from previous cases has generated a systematic approach to identify when a case may be difficult to defend, which is used by the DPS decision-maker, DLS lawyers and Counsel.

8. When the decision is to defend a case, it should be done robustly. DLS have a target to maintain a 'win rate' for civil trials of at least 60%, and last year achieved a win rate exceeding 70%. It should be noted that most malfeasance litigation involves juries and is more unpredictable than judge-only litigation.

9. Where a claimant has misrepresented facts or their financial eligibility for legal aid, or the claim is not worth much compared with the likely costs, representations will be made to the Legal Services Commission.

10. Lessons learned are fed back to operational officers through the DPS Intranet site and direct training by the DPS Civil Actions Unit. If MPS policies or systems are at fault, the issue is raised with the relevant branch through the MPS Quality Performance & Risk Management Group.

Directorate of Legal Services processes

11. DLS has established processes to deal with malfeasance cases, set out in manuals and guidance. The rigour and comprehensiveness of these processes contributed to their high score in a recent Excellence Model assessment.

12. The processes cover the decision-making process; roles of DLS and client; day-to-day running of cases; guidelines for assessing the merits of cases; internal authority levels within DLS; and the protocol for updating the MPA on high profile cases.

13. Before high-value or high-profile cases are forwarded to the DPS decision-maker, they will have been reviewed by one or more experienced and senior lawyers. Team leaders conduct regular and systematic case reviews with lawyers.

14. When a decision is made to settle a case, this should be done at the lowest practicable cost to the public purse, and DLS lawyers manage cases with this in mind, supervised by the senior lawyers. When costs are awarded to the MPS, these are pursued. If costs are awarded against the MPS, a costs draftsman is generally employed to ensure that the claimant's legal expenses are reasonable.

15. Sometimes investigation indicates that a claimant's case is fraudulent or unmeritorious, or an MPS offer to settle is rejected in favour of an implausibly high sum. In such cases DLS write to the Legal Services Commission (previously the Legal Aid Board), who encourage such representations. Indeed they recently sought MPS views on legal aid in a high profile case.

16. A more detailed workshop or presentation is being arranged for Members on DLS processes for managing both malfeasance litigation and employment tribunals.

Civil Actions Investigation Unit

17. The DPS civil actions investigation unit (CAIU) was piloted on the old South West Area, and now covers all the MPS, assisting both the DCS Civil Actions as decision maker and the lawyer as case manager.

18. The unit investigates incidents and claimants, recovers evidence and supports witnesses. The evidence gathering of the CAIU assists in the assessment of the merits of cases, either for or against the Commissioner.

C. Financial implications

19. Civil actions undermine the mission of the MPS by absorbing funds, resources and effort that would otherwise be available for core policing. The aim is to minimise the overall cost of malfeasance litigation and its impact on the organisation.

20. DLS manage several corporate budgets effectively, and have not overspent any of them for four years. In this period the contracted-out spend on solicitors has reduced from £2.4 million to under £1 million. The budget for Counsel has remained stable for five years, as a result of tight controls and firm negotiating on hourly rates. Last year's malfeasance compensation spending was the lowest for eight years.

21. There is an alternative, 'commercial' approach to malfeasance litigation, whereby those cases that can be settled for a few thousand pounds are settled quickly, irrespective of the merits of the case. The downside of this is that it is likely to result in more claims against the organisation, and in the medium term a significantly higher spend on compensation.

22. The MPA Treasurer comments that, although the MPA has taken out insurance against liability claims, the level of self-funding is such that any reduction in the current level of compensation costs represents a direct saving to the Authority. Improved management of claims, as reflected in a claims record to which the insurance market can relate, should lead eventually to more favourable insurance terms.

D. Background papers

MPA / MPS Protocol on Compensation Cases (revised 25 October 2001)

E. Contact details

Report author: DCS Tony Dawson, DPS Civil Action Command, MPS.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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