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In Andrew Breeze & Dominic Wilson v The Chief Constable of Norfolk Constabulary [2026] EWHC 1937 (KB), Mr Justice Cotter awarded indemnity costs to the Chief Constable following his success at trial in Andrew Breeze & Dominic Wilson v The Chief Constable of Norfolk Constabulary [2025] EWHC 2684 (KB).
Background
The claimants had been directors and major shareholders in a company, the business of which included the provision of private sector mental health care to the National Health Service at Cawston Park Hospital in Norwich.
Following a whistleblower’s report in January 2006, the NHS Counter Fraud Service commenced an investigation into an alleged fraud involving the charging mechanism for in-patients at the hospital.
The investigation was assumed to the Norfolk Constabulary Major Incident Team in July 2006 and named “Operation Meridian”.
The claimants were arrested in November 2006, following which a very substantial volume of witness and documentary evidence was obtained by the Operation Meridian team.
In September 2007, an advice file, accompanied by a 186-page police case summary, written by the officer in the case (“the OIC”), was submitted to the Crown Prosecution Service (“CPS”). The purpose of the police case summary was to give a balanced overview of the evidence in the case, both strengths and weaknesses.
In February 2008, the CPS authorised charges against the claimants on a single count of conspiracy to defraud the NHS.
Almost two months into the criminal trial in June 2009, aspects of the oral evidence called by the Crown were considered by Prosecuting Counsel and the CPS to have significantly undermined the prosecution. Following a review, the decision was taken to offer no further evidence and the claimants were acquitted. Issues arising from the aftermath of the collapse of the criminal trial were debated in Parliament in March 2011.
Claim
In 2015, the claimants brought a claim against the Chief Constable for malicious prosecution and misfeasance in public office seeking basic, aggravated and exemplary damages of over £30 million for pecuniary and non-pecuniary losses.
The claim was founded on serious allegations that officers, acting dishonestly and/or in bad faith and/or with malice, had deliberately suppressed and manipulated evidence (including by oppressing witnesses and tampering with witness statements) in order to deny the CPS access to all relevant exculpatory evidence. It was alleged that officers’ actions had been fuelled by a motive to cause deliberate harm and that without an honest belief in the claimants’ guilt, officers had abused their powers in an attempt to secure convictions.
In 2022, a significant part of the pecuniary damages claim was struck out under the reflective loss principle (Andrew Breeze & Dominic Wilson v The Chief Constable of Norfolk Constabulary [2022] EWHC 942). The claim was re-formulated to reach a pleaded value of around £18 million.
The claim was funded by a pre-April 2013 Conditional Fee Agreement with after-the event insurance. The claimants’ approved budgeted costs to the end of the trial (excluding success fees and VAT) were just over £992,000.
Liability was denied from the outset and throughout.
Alternative Dispute Resolution and offers
The claimants extended several invitations throughout the life of the claim to enter into ADR.
Ahead of the trial, a comprehensive witness statement was served explaining why the defendant had refused ADR (addressing the test in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576).
Just under six weeks before the trial commenced, the claimants made Part 36 offers to settle damages for £1.1 million each. The offers were not accepted and were withdrawn on the eve of the trial.
Indemnity costs warning letter
On 25 November 2024, after the exchange of witness evidence and before fully embarking on trial preparation, a letter was sent to the claimants’ solicitors in the following terms:
“The defendant invites the claimants to discontinue their claim. It is plain from the witness statements served by the claimants that their case is built on opinions and impressions rather than any actual evidence which establishes either of the pleaded causes of action. We put the claimants on notice that in the event that the claim is not discontinued by 4:00pm on Friday 20 December 2024, the defendant will seek his costs on the indemnity basis from that time forward”.
In January 2025, the claimants explicitly rejected this invitation to discontinue.
Trial
A trial on the liability issues proceeded before Mr Justice Cotter in March and April 2025, lasting for 12 days.
One of the most striking features of the trial was that despite the claimants’ case having focused on the police case summary which was denounced as “slanted”, “biased” and “not an honest document”, the OIC was asked only one question about it, during two and half days of cross-examination.
Other serious allegations concerning officers’ treatment of witnesses and their evidence during the police investigation were either raised in the particulars of claim and remained unevidenced throughout the civil claim or were raised for the first time during the trial.
Witness evidence was disclosed which did not advance or support the claims for malicious prosecution or misfeasance in public office. Of the 23 witnesses for the claimants, only 12 were called to give evidence at the trial.
The trial laid bare a “fracture line” running through the claim. Prior to the trial, it had been the claimants’ assertion that officers approached the prosecution with a "mindset of guilt"; they had closed their minds to the potential of the claimants' innocence and believed them to be guilty. In opening arguments, however, the claimants’ case was advanced on the basis that officers did not have an honest belief in the claimants’ guilt, rather, they believed in the claimants' innocence and were doing senior officers' bidding in trying to secure a conviction.
In his 240-page judgment, handed down in October 2025, Mr Justice Cotter dismissed the claim in its entirety.
Application for indemnity costs
Following the success at trial, an application was made for indemnity costs, based on the warning given in the letter of 25 November 2024.
An order for indemnity costs shifts the presumption so that if there is any doubt in the mind of a costs’ judge as to whether costs have been reasonably incurred or are reasonable in amount, the doubt will be resolved in favour of the receiving party.
The test from the leading case of Three Rivers DC v Bank of England [2006] EWHC 816 is set out in paragraph 18 of the judgment. The critical requirement is that there must be “some conduct or some circumstance which takes the case outside of the norm”.
The language of the Three Rivers test is indicative of the fact that indemnity costs are not easily awarded. The court looks for cases which are “opportunistic”, “thin”, “fanciful” or “far-fetched”, “irreconcilable with the contemporaneous documents” and/or for example which are pursued “aggressively” with “hostile cross-examination”.
An inherent part of the claimants’ argument against an award of indemnity costs was that this was a claim founded on allegations of bad faith and malice resulting from a failed criminal prosecution; it was a normal case of its type necessarily involving allegations of serious dishonesty.
The claimants relied on the fact that they bore the burden of proof in both torts and that it is a normal feature of the adversarial nature of litigation that cases are lost; there was – they asserted - nothing about the case to take it out of the norm.
The claimants also advanced arguments that:
The defendant had never applied for summary judgment or to strike out the entire claim; and
The defendant had never made an offer: a Part 36 offer which would have given an automatic entitlement to indemnity costs, a “low” offer (in respect of which the judge notably commented “whatever that means”) or a drop-hands offer.
Judgment and award of indemnity costs
Mr Justice Cotter’s judgment helpfully details the aspects of the claimants’ conduct of their claim which cumulatively took the case “outside of the norm” and which “amounted to unreasonable behaviour that amply merits the award of indemnity costs on the limited basis sought”. These included that:
There was no reasonable prospect of the claimants ever establishing malice;
The claimants conducted the claim as a wide-ranging factual enquiry, as if it were a public inquiry or a negligence claim rather than a claim in which the burden was on the claimants to establish the elements of the two pleaded torts;
Allegations akin to serious dishonesty which were “without any real foundation” were pursued “doggedly” over an extended period of time and against a number of officers;
The case was opened at trial with allegations which amounted to a “full frontal attack” on officers’ integrity;
Some of allegations were “to put it most charitably, thin and, in some respects, far-fetched and some were irreconcilable with the contemporaneous documents”;
The lack of cross-examination in relation to the police case summary was “little short of extraordinary”; and
The claimants were “almost totally blind” to any criticism of their own conduct.
The judgment provides support for some of the more difficult decisions that had to be made by the defendant during the life of the claim. For example, whilst the case was considered from the outset to be thin and unsubstantiated, it was also perceived to be unsuitable for strike out or summary judgment because such an application would inevitably have resulted in a mini-trial for which the defendant would, also inevitably, have been criticised.
The judgment has wider helpful application for defendants:
First, it is worth a reminder that it is crucially important if an approach to engage in ADR has been refused or avoided (and the court has so directed), that decision-making is properly rationalised in a witness statement which is served (not filed) within the given timescale. The idea is to remove as far as possible any risk of the court reducing a successful defendant’s costs as a penalty for an unreasonable failure to engage in ADR;
Where a defendant does not wish to engage with ADR, or make a “low offer”, or a drop-hands offer and where there is a prospect of recovering costs from the claimant, consideration can be given to the use of an indemnity costs warning letter.
As the judgment makes clear, the defendant does not need to make an offer; a warning of the defendant’s intention if the claim continues, can be sufficient.
As defendant police practitioners, we are used to dealing with claims involving multiple causes of action (which can range from tenuous to nonsensical); the so-called “kitchen sink” approach to litigation.
An indemnity costs warning might serve as a very valuable reminder to claimants pursuing opportunistic, fanciful or poorly particularised claims, that the court can and will penalise this type of conduct.
Conclusion
This is a valuable and helpful judgment for defendants.
This was not a claim that was doomed to fail or which the defendant considered appropriate for strike out or summary judgment. It was a claim that, had it been conducted differently, might have been considered to be more finely balanced or at least might not have proceeded as far as it did.
The judgment recognises the complexity of the balancing exercise facing defendants ahead of trial when weighing up the consequences of making a Part 36 offer, a global offer, or an offer to drop-hands. It gives teeth to the type of “marker in the sand” invitation made in this claim and ought to alert claimants to the risks of rejecting such an invitation out of hand.
The judgment on costs, following the equally forthright substantive decision, is a resounding condemnation of the claimants’ approach to this long-running litigation.
Catherine Shackleton and Nick Peel of Weightmans LLP instructed Charlotte Ventham KC of 5 Essex Chambers in the indemnity costs application and Andrew Warnock KC of Deka Chambers (and earlier Jason Beer KC of 5 Essex Chambers) and Charlotte Ventham KC in the substantive claim.