MsLlost€rkottcr-Dit-Rawe

Reference: HQI lX0l47l

By Recorded Delivcry

8'h June 2011

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ipccindepeDdent

police coIrlplaintscomnllssron

90 High Ho borrLordon WC1V 5BH

Te: o2o 7r66looo

M nicom oro 7404 o:1llEmai enqLr i r e5@ pcc.g! i .gov uk

Web: www ipcc go! !k

Dear Ms Klosterkotter-Dit-Rawe,

RE: Noelle Klosterkotter-Dit-Rawe v The Commissioner of Police of theMetropolis and the Independent Police Complaints Commission and theSecretary of State for the Home Department, Claim Nor HQ11X01471

Thanl you for your letter dated 31" May 201 I enclosing the notice of an allocarionhcanng.

I am writing to inform you that as my colleague Ms Asad has now left the IPCC Ihave taken over conduct ofthis matter from her.

I am also writing to you in order to serve a copy ofour application for strike outand,/or sommaryjudgment ofyour claim which has been served on the coull today.You will find enclosed:

1) Application notice2) Witness Statement of Julia Chittenden3) Exhibits JC/l to JC/74) Draft Ordcr

I have asked the Court to list this application either in advance ofthe allocationhearing or at the allocation hearing in order to save time and costs. I have alsolndicated to the court that ifthey do list the application at the same time as theallocation hearing we are likely to need more than half an hour, perhaps onc to oneand a halfhours

I uould be gralel! l l l you could please acknoulcdge receipt.

Yours sincerely.

D D1 1 '

.lulia ChittendenLawyer

For the Director of Business ServicesIndependcnt Police Complaints Commission (IPCC)

( - ta im No. HO

X0t47 l

IN THE HIGH COURT OF JUSTICE

OUf,EN'S BENCH DIVISION

B E T W E E N :

NOELLE KI,OSTERKOTTER-DIT-RA.Wf

Claimant

-and-

TIIE COMMISSIONER OF POLICE OF THE

METROPOLIS

First Defendant

THE INDEPANDENT POI,ICE COMPLAINTS

COMMISSION

Second Defendant

SECRETARY OF STATE FOR THE HOME

DEPARTMENT

Third Defendant

APPLICATION NOTICE

IndependeDt Police Complaints Commission

90 High Holborn

London

WClV 6BH

Solicitor for the Secotrd Defendant 92930

IN THE HIGH COURT OF JUSTICE

OUEEN'S BENCH DIVISION

B E T W E E N :

Claim No. HOI1X01471

NOEI,I-E KLOSTERKOTTER-DIT-RAWE

Claimant

-and-

THE COMMISSIONER OF POLICE OF THE METROPOLIS

First Defendant

THE INDEPENDENT POLICE COMPLAINTS COMMISSION

Second Defendaut

SECRETARY OF STATE FOR TIIE HOME DEPARTMENT

Third Def€ndant

APPLICATION NOTICE

Part A

l, Julia Chittenden, on behalfofthe Second Defendant

intend to apply for an order (a drali ofwhich is attached) that:

L Insofar as they relate to the Second Defcnrlant, the Claim Form and paflrculars

ofClaim be struck out pursuant to CpR 3.4(2);

2. Altcmativcly, that summaryjudgment be givcn for the Second Defendant; and

3. The Claimant do pay the costs ofthe application and ofthe claim.

because the Particulars of Claim disclose no reasonablc grounds for bringing the claim

and the Claimant has no rcal prospects ofsuccess.

Part B

I wish to rely on evidence in pa C in support ofmy application.

Part C

I wish to rely on the attached witncss statement.

IN TIIE HIGH COURT OF JUSTICE

OUEEN'S BENCII DIVISION

B E T W E E N :

Claim No. HQ11X01471

Claimant

NOEI-LE KLOSTERI(OTTER-DI T-RA\\ E

-atrd-

THE COMMISSIONER OF POLICE OF THE METROPOLIS

First Defendant

THE INDEPENDENT POLICE COMPLAINTS COMMISSION

Second Defendatrt

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Third Defendant

DRAFT ORDER

UPON hearing [Counsel for] lthe Solicitor for] the Claimant and [Counsel for] [the

Solicitor for] the Second Defendant:

1. The claim insofar as it relates to the Second Defendant is sfuck out prrsuant to

CPR 3.4(2)(a).

lo,l

2. Summaryjudgment be entered in the Second Defendant's favour.

lAxQ

3. The Claimant do pay the Second Defendant's costs of thc application and the

claim, summarily asscsscd in the sum off

Witness Statem€nt

I, Julia Chittenden, will say as follows:

1. I am duly authorised to and make this statement in suppoi of the Second

Defendant's application for strike out and / or summary judgment.

lhe hdcpcndcnt Police Complaints Commission

2. The Second Defendant was established by the Police Reform Act 2002 ("the

Act"). Pursuant to section 10(l) ofthe Act the Second Defendant's functions

include:

a. to secure the maintenance by the Commission itsell and by police

authorities and chiefofficers, of suitablc arrangements with respect to the

matters mentioned in subsection (2);

b. to keep under review all arangements maintained with respect to those

matters;

c. to secure that arrangements maintained with respect to those matters

comply with the requirements of the following provisions of this Part,

are efficient and effective and contain and manifest an appropdate degree

ofindependence;

d. to secure that public confidence. is established and maintained in the

existence ofsuitable arrangements with respect to those matters and with

the opemtion ofthe arrangements that arc in fact maintained with respect

to those matters;

to make such recommendations, and to givc such advice, for the

modification of the arrangements maintained with respect to those

matters, and also ofpolicc practicc in relation to other ma ers, as appear,

from the carrfng out by the Commission of its other functiorls, to be

necessary or desirablc:

to such extent as it may be required to do so by regulatioN made by the

Secretary of State, to calry out functions in relation to bodies of

constables l11aintained othcrwise thar by police authorities which broadJy

correspond to those confered on the Commission in relation to police

forces by the preceding paragraphs olthis subsection;

to carry out functions in r€lation to the Serious Organisod Crime Agency

which correspond to those conf€ued on thc Commission in relation to

police forces by paragtaph (e) ofthis subsection; and

to carry out functions in relation to thc National poticing Improvenent

Agency which correspond to those conferred on the Commission in

relation to police forces by paragraph (e) ofthis subsection.

3. Those natters are, by section 10(2):

the handling of complaints made about the conduct of persons serwing

with the police;

the recording of mattcrs from Nhich it appears that there may have been

conduct by such persons .t&hich constitutes or involves the comnrission of

a criminal offencc or behaviour justifying disciplinary proceedings;

b.

a,

h .

g.

c. thc recording of mattcrs fiom which it appears that a person has die<l or

suffcred serious injury during, or following, coltact with a person

serving with the police;

d. the mauter in which any such complaints or any such matters as are

mentioned in paragraph (b) or (c) are investigated or othemisc hanclled

and dealt with.

4. It is the Second Defenda.nt's duty to exercise the powers and perform the duties

confered on it by Pirt 2 of tlre Act in the manner that it consjdcrs best

calculated for the purpose of sccuring the proper carying ou1 of its functions

under subsections (1) and (3) and to secure that adangements exist which are

conducive to, and facilitate, the reporting ofmisconduct by persons in relation to

whose conduct the Commission has functions.

5. The handling ofcomplaint matters, i.e. wherc a mcmber ofthe public complains

about a police force, is conducled in accordance with Schedule 3 ofthe Acr.

Background to the claim

6. The claim relates to what appears to be a long running disputc with the First

Defendant which rcsulted in a complaint by the Claimant to the First Defendant.

7. By a memorandum dated 22nr January 2010, Detective Chief lnspector Mark

Nanji of the First Defendant ,lvrotc to-the Second Defe[dant requesting a

dispensation for a complaint received fiom the Claimant (exhibited hereto as

'JC/l'). Where an application is made to the Sccold Defendant pursuanr to

paragraph 7 of Schedulc 3 it shall consider such a request in accorda.ncc wrlh

Regulations and dcte.mine whether to grant the permission applied for.

8. Regulation 3 (2) of thc Police (Complaints and Misconduct) Regulations 2004

("the Regulatiorls") specifies the complaints for the purposes of paragraph 7 of

Schedule 3 that include, itlter dlia, cofrtplaiJts rvhere the appropriate authority

considers thatl

a. morc than 12 months have elapscd between the incident, or the lalest

incident, giving rise to the compiaint and thc making of the complaint

and either that no good reasol for the delay has been shown or that

injusticc rvould be likely to bc caused by the delay;

b. the complaint is vexatious, oppressive or otherwise an abuse of the

procedures for dcaling with complainrs; or

c. it is not reasonably practicabie to complete the investigation of the

complaint or any otlter procedures under Schedule 3 to the Act.

9. Regulation 3(4) and l(5) gives further clarilication as to when it is not

reasonably practicable to complete the investigation ofthe complaint:

(4) For the purposes of paragraph (2) (0 it is not rcasonably practicable to

complete the investigation of a complaint or any other procedures under

Schedule 3 to the 2002 Act iI, and only il-

a) it is not rcasonably practicable to comnunicatc with thc complainant or a

persot acting on his behalf; or

b) it is not reasonably practicablc to complctc a salisfactory invcstigation in

consequencc of-

r) a rcfusal or failure, on the part ofthe complainant, to make a statement or

afford othcr reasonable assistancc for the purposes of thc invcstigation

ot

i i ) the lapse of time since the event or events foming the subjec! matter of

tho complaint.

In this regulation any rcfercnce to action not bejng reasonably practicablc

shall include a referencc to action which it does not appear reasonably

practicable to takc within a period which is reasonablc in all thc

circumstances of the case.

10. By lelter dated 22 Fcbruary 20i 0 thc Second Defendant wrote to the Clairllanr

informing her that a requcst for dispensation had been made, that the request

was being considerod and invited hcr to provide an oxplanation as to why the

request should not be granted (exhibited hereto as .JC/2,).

5 \

11. No response was received from thc Clain1ant.

12. The Second Defendant did however rare rnro

Ciaimant made in her letter of lgtl' February

Defcndant's indication to the Claimanr lhat

(exhibited hcreto as JC/3). This can be seen

appeal minute (exhibited hereto as.tC/,4). .

account the rcpresentations the

2010 in response to the First

rt was seeking a dispensation

lrom the Second Defcndant's

13. In ljght of DCI Nanji's application and of the lack of any rcsponsc from the

Claimant, the request was granted oD the grcunds of dclay, the complaint being

an abusc of process and nol reasonably practicable to investigate. The Second

Defendant wrotc to the Claimant and First Defendant informing them of its

decision (exhibited hereto as .JC/5' and .JC/6').

14. The Claimant did not challenge rhe Second Defendant's dccision to glant a

dispensatiot by way ofjudicial revrew.

15. I have checked the Case$-ork l,{anager's paper file and the electronic Case

Management System which confirms that therc was no further contact from tlte

Claimant until her letter ofclaim dated lTth March 2011. The Seconrl Defen<lant

was first aware ofthe Claimant,s contention that the dispcnsation should no. nave

been glal1ted through her'Lctter of Claim, dated l71h March 2011 (cxhibited

hereto as 'JC/7').

Heads ofclaim

16. lnsofar as the claim relates to the Second Defendant, the Claimant appears to

claim:

a. Breach of statutory duty pursuant to the Act: and

b. Malpracticc / Misconduct in public officc / Misfeasance in public office.

17. I will deal $,ith each head ofclaim in tum.

Breach ofthe Act

18. Thc Claimant alleges that the Second Defendant has .,wilfully and recklessly

failed to perform its statutory duty under lthc Act]., (paragraph 149 of her

Particulars ofClaim). She alleges that the Second DefendaDtl

a. failed to lreat her complaint as a comprarnr;

b. ignored or failed to note the contcnt ofrcquests to the First Defcndant;

c- ignored its own Guidance and that ofthe Horne Office;

d. was in breach olits Gujdance; atd

e. "failed to hold to account thosc justifiably complainecl about by the

Claimant".

19. As is clear from the corespondence which was sent to the Claimant, her

complaint was considered within pat 2 of the Act however an appiication for

dispensation was made. Having considered that application in accordiurce with i1s

slatutory and common law dutics and having sought the Claimant's rcpresentations,

thc request for dispcnsation was granted.

20. The Claim Form and Particulars stand to bc struck out pursuant to CpR 3.4(2Xa) il1

that that the statements of case disclose no reasonable grounds for bringing thc claim

and / or that sumnaryjudgment should be entered for the Second Defendant pursuant to

CPR 24.2 in that the Claimant has no real prospect ofsuccecding on the claim and there

is no other compelling reason why the case or issue should be disposed of at a trial,

b€cause:

a. The Claimant has not ide[tificd any duty which has been breached

through the Second Defendant's a;ts or omlssrons.

b. Insofar as the Claimant is alteging or sceks to allege that thc Second

Defcndant is in breach ofany its functions pursuant to section l0 ofthe

Act, thesc are not duties the breach of rvhich gives rise to any civil

liability (for gLridance on *,hen a brcach of a statutory duty gives rise to a

pnvate cause of action see, for example, X r. Be(tfordshire Count-

Council 119951 2 AC 633).

c. The Claimant has lailed to identify any loss occasioncd by the Second

Defendant's acts or omissions.

d. Manifestly, the Second Defendanl acted in accordance with i1s srarurory

duties and powcrs. As such there is no merit in thc claim.

Malprdctice / Misconlact in public oLfice / Misfeasance in public o./fce

21. The Claimant asserts that the matters complained of amount to ..malpractice or

misconduct in public office or misfeasancc in public office". This aspect ofthe claim is

similarly without merit and stands to bc struck out pursuant to CpR 3.4(2)(a) in that that

the statcments of clse disclosc no r€asonable grounds lbr bringing the claim and / or

that summary judgment should be entercd for the Second Defendant pursuant to CpR

24-2 in that the Clailllant has no real prospect ofsucceeding on the claim and there ls no

other compelling reason why the casc or issuc should be disposed ofat a trial, because:

e. The tort of'malpractice' is not understood and not known to English

law.

I The matterc alleged do not disclose any cause of action as alleged or at

all. Specifically, it is not understood that, so far as the Second Defendant

is concemed, there is any allegatid,n ofbad faith which would found such

a claim.

g. As above, the Second Dcfendant acted in accordance \r,itil its statutory

dutics and powers_ As such thcre is no me t in the clain.

t 0

Abuse ofprocess

22. The Claim should bc sffuck out as an abuse ofprocess_ The Claimant.s challengc

to thc decision of thc Second Defendant to grant a dispensation is a challenge to the

decision of a public body and should have been made by rvay ofjudicial revicw. The

three month time limit expircd in Junc 2010 and the Claimant is seeking to circumvenr

that time linit by making this claim.

23. A success ful j udicial review challenge would have resulted in the Second Defendant

having to retake its decision on the dispensation and would have therefore provided the

Claimant rvith a complcte remedy to that aspect ofher complaint. Instead of which the

Claimant is now seeking compcnsation for effectivcly the Second Dcfendant,s decision

to grant a dispcnsation.

Loss

24. The Claimant claims at paragraphs 152 and 175(9) ofher particLLlars ofCiarm and

in her Schcdule ofCosts and Damages at l91h April 201 1:

h. "Costs ofcorespondence"; and

"Aggravated and / or exemplary damages".

25. It will bc clear to the Court that the costs claimcd are not recoverable as damages

within this actioD- Insofar as they are geiruine litigation expenses (which they do not

appear to be) thcy should more properly be consraercd at the conclusron ofproceedings.

26. As lor the claim for aggravated or cxemplary damagcs there is no evidence to

support this and cannot on any reasonable view ofthe Second Defendanl,s involvement

uith this matter bc considered appropriate.

Couclusion

27. In sunmary, this claim is totally without merit and thcrefore it stands to bc struck

out and / or summaryjudgment entcred in the Second Defendant's favour. Inaddilionit

ls an abuse ofprocess and therefore stands to be struck out_

Signed:(

Datcd 0;+ / 0( / tl

12