Chapter 7: Civil litigation

¶2.7.1 Part 1, Hillsborough: 'what was known', included an overview of the litigation pursued through the civil courts. In the light of the material now disclosed, this chapter reveals the 'behind the scenes' context, particularly concerning the apportionment of culpability for the disaster through the 'contribution hearings'.

¶2.7.2 Civil litigation is concerned with the rights and duties of individuals and organisations towards each other. In this context, it involves a claim for damages or compensation for loss or harm suffered as a result of a civil wrong ('tort'), brought by the individual or body that has suffered the loss or harm (the 'claimant' or the 'plaintiff') against the person or organisation that is said to be responsible for the wrong (the 'defendant'). The claim may be settled 'out of court' on terms agreed between the claimant and the defendant.

¶2.7.3 In the absence of any such settlement, however, if the claim is pursued to trial, it is heard before a judge in the High Court or the County Court, usually without a jury. On the evidence presented at trial, the judge is required to decide, on a balance of probabilities: (i) whether the claimant was in fact wronged; (ii) if so, whether the defendant is 'liable' for that wrong; and (iii) if so, the award of damages or compensation that the defendant should be required to pay in order to remedy the wrong suffered by the claimant.1

¶2.7.4 The complexity of the events at Hillsborough, the number and range of people affected (survivors, bereaved relatives in the ground or watching on TV, rescuers, police officers) and the multiple layers of potential culpability – the South Yorkshire Police (SYP); Sheffield Wednesday Football Club (SWFC); the Football Association (FA); the structural engineers (Eastwood & Partners); Sheffield City Council (SCC); the South Yorkshire Metropolitan Ambulance Service (SYMAS); and others – meant that a diverse range of civil litigation claims was inevitable.

In contrast to civil litigation, the criminal process relates to a wrong that is recognised in law as a 'crime', which is then the subject of a criminal prosecution brought on behalf of the state or the public (the 'prosecution') against the alleged wrong-doer (the 'defendant') in the Magistrates' Court or the Crown Court. In the case of serious crimes, the prosecution will result in a trial before a judge and jury in the Crown Court where, on the available evidence, (i) the jury will be required to decide whether they are sure beyond reasonable doubt that the defendant is 'guilty' of the crime as alleged; and (ii) if so, the judge will then decide what sentence should be handed down to the defendant by way of punishment and deterrence. Throughout, the victim of the alleged wrong-doing is not involved in the prosecution in any capacity other than that of a witness.

Chapter 7 Civil litigation — 227

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¶2.7.5 The scope of the litigation that ensued can be addressed in three broad categories: claims for damages on behalf of the bereaved and injured, including the appeals in the cases Alcock and others and Hicks; claims for damages on behalf of police officers, including the case of White and others; and 'contribution' or 'third party' proceedings brought on behalf of SYP against SWFC and their consultant engineers Eastwood & Partners to determine the level of contribution required from each party towards the sums to be paid on the damages claims arising from the disaster.

¶Claims on behalf of the bereaved and injured, including the cases of Alcock and others v Chief Constable and Hicks v Chief Constable 2.7.6 The first writs seeking compensation for injuries sustained at Hillsborough were issued and served on SYP and SWFC on 18 April 1989.

¶2.7.7 Documents disclosed to the Panel reveal that while there is no record of a response from SWFC, SYP undertook criminal records checks on the claimants. The purpose of these checks, on the Police National Computer and with the Criminal Record Office, remains unclear.2

¶2.7.8 A first meeting between SYP, their solicitors Hammond Suddards, the Secretariat to South Yorkshire Police Authority and the Police Authority's insurers, Municipal Mutual Insurance (MMI), was held on 19 April 1989.3 The meeting discussed the insurance and legal implications of the received and anticipated claims. A representative from MMI set out the insurer's position:

¶Our interest is primarily a financial interest. We are providing an indemnity in relation to any liability that is going to be found to have been incurred by the Police Authority.

¶Having said that, I would like to put on record very early that we are not looking to protect our financial interests at the expense of either the PR interest or any other interest of the Authority. We really want to hear what you want us to do in relation to protecting our common financial interest in the short term. In the long term I think things will evolve and there will be things to be done to which we will have no option, but that might be 3/4/5 years.

¶2.7.9 The uncertainty regarding where liability might lie was shared within the Home Office. Responding to a question from Frank Field MP regarding the availability of automatic

SYP000160100001, see for example p1, PNC printout.

¶The position in relation to data protection law also appears to have been unclear. Following a later example of criminal record checking in response to a civil claim, the results of the check were released accidentally to the claimant's solicitor

¶– alerting them that such a search had been made. The claimant's solicitor complained, writing to South Yorkshire Police that:

In supplying it you appear to have breached not only the long-standing code of confidentiality and circumstances under which a record might be disclosed, but you have also breached the provisions of the Data Protection Act 1984. This is an extremely grave matter…

¶The response of the police officer who had released the information was to hold responsible the solicitor who had requested the search. He wrote:

I find it negligent on their behalf to first state they were entitled to view the record if they weren't so entitled and secondly then to release a copy of the convictions along with a copy of my covering letter to the solicitor's representing [the claimant].

¶The issue appears to have been resolved following a conversation between the solicitors involved. SYP000160100001, p2 onwards. 3. 'HILLSBOROUGH DISASTER – MEETING TO DISCUSS INSURANCE AND LEGAL IMPLICATIONS', 19 April 1989,

¶SYP000123590001, pp280-90.

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¶compensation, officials at the Home Office noted that the issue of compensation would be complex and protracted.

¶2.7.10 It was 'by no means clear that someone or some organisation will be found to be liable'. In marked contrast to other disasters, such as the Clapham rail disaster, this ruled out automatic compensation. Officials considered it inevitable that the legal process would have to be pursued until liability was established in court.4

¶2.7.11 Further compensation claims were issued against SYP and others during the months that followed, but no steps were taken to progress proceedings in court until Lord Justice Taylor published his Interim Report on 4 August 1989.

¶2.7.12 Following the Report's publication – which criticised SWFC, SCC and others, but found that the main cause of the disaster was the failure of police control – on 18 August 1989 the insurers, MMI, presented the position at a meeting of the South Yorkshire Police Authority as follows:5

¶They reported that at that date, 701 claims had been received from the dependants of those killed or those who were injured, although Solicitors acting on the Steering

¶Committee [of solicitors representing the bereaved and injured] estimated there will ultimately be at least 1,000 claims.

¶The Insurers having met with the Steering Committee in Liverpool together with the

¶Sun Alliance Insurance Company who insure the Football Association and Sheffield

¶Wednesday F.C. have so far denied liability.

¶At meetings with the Steering Committee it has been agreed that test cases will be held and it is anticipated there will probably be six of these covering the various categories of claim arising out of the tragedy.

¶The Insurers reported to the Authority that the full cost of the claims could be of the order of £15 million although members will have read press reports in which various parties, not least Solicitors acting for the claimants, have estimated the full cost as being as high as £50 million. The limit on insurance taken out by the Authority is £8.5 million which means that any excess which the Police are found to be responsible for, whether by negotiation or arising out of the test cases, will have to be borne by the Authority.

¶The Insurers, at the Authority's meeting on 18th August, warned they may have to enter into negotiations with those representing the claimants if it is considered the climate is right to do so, and said they would welcome any views the Authority has with regard to the financial implications and also political implications which may arise. The Authority therefore resolved that the Finance and General Purposes

¶Committee be requested to consider in detail the points made by the Insurers …

¶Whatever the ultimate responsibility of the Police the Authority will have to bear any cost of compensation over and above insurance provision of £8.5 million. In the light of comments made by the Insurers at the Authority's meeting on 18th August and also the estimates of total costs of compensation there is a very real potential that the Authority will be involved in considerable expenditure.

Internal Home Office memorandum, 3 May 1989, HOM000015410001, pp1-6. 5. 'FINANCE AND GENERAL PURPOSES COMMITTEE, Report of Clerk and Financial Officer', 15 September 1989,

¶SPA000000730001, p1.

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¶2.7.13 Given this potential financial exposure, it was proposed that staff from the Police Authority would shadow MMI's work and the issue would be referred back to the Authority prior to any substantive decision.

¶2.7.14 Aside from the financial risk, there was also concern that civil claims might come to trial in advance of a decision from the Director of Public Prosecutions (DPP) on the issue of criminal proceedings against those found to be responsible for the disaster. At a pre-trial review hearing before Mr Justice Rose in the High Court on 26 October 1989, SYP applied for a 'stay' or postponement of the civil claims pending a decision from the DPP.

¶2.7.15 SYP's solicitors, Hammond Suddards, subsequently wrote in a letter to the Crown Prosecution Service (CPS):

¶At the hearing, an unsuccessful application for a stay of the proceedings was made on behalf of the South Yorkshire Police, not in connection with possible prejudice to any Officer who may be the subject of the present inquiry but simply on the basis that it is difficult for the Chief Constable to prepare a case when Officers, rightly or wrongly, believe that they may be under investigation and, hence, are unwilling to co-operate in providing further statements.6

¶2.7.16 Having rejected the SYP application, Mr Justice Rose set 11 June 1990 for the start of the civil claims trial.7

¶Settlement 2.7.17 The disclosed documents suggest that there was debate and argument between SYP and their insurers about their decision to offer a settlement of some civil claims. On 17 November 1989, Chief Constable Peter Wright presented a report to the Police Authority in which he indicated that the claims were to be defended.

¶2.7.18 On 30 November, however, a press release illustrated a significant shift in position: 'It has been decided by the Chief Constable of South Yorkshire and the South Yorkshire Police Authority, in conjunction with their insurers, Municipal Mutual Insurance, that those bereaved and injured in the tragic events at Hillsborough stadium on 15 April should not have to await the outcome of a further lengthy hearing in 1990 before receiving compensation'.8

¶2.7.19 Thus, 'the Chief Constable, in conjunction with his insurers, intends to open negotiations with the aim of resolving all bona fide claims against him for compensation arising out of the Hillsborough disaster'.

¶2.7.20 Other named defendants, SWFC, Eastwood & Partners and SCC, had been 'offered the opportunity of joining in the course of action now taken on behalf of the South Yorkshire Police, but have refused to do so'. The 'Chief Constable and his insurers' intended to 'pursue legal action against those parties to recover moneys paid out to the claimants pursuant to today's offer'.

Letter from Hammond Suddards to CJ Cleugh, Crown Prosecution Service, 30 October 1989, CPS000003750001, p14. 7. 'SOUTH YORKSHIRE POLICE AUTHORITY, REPORT OF THE CHIEF CONSTABLE', 17 November 1989,

¶SPA000000190001, pp1-6. 8. 'PRESS STATEMENT OF THE CHIEF CONSTABLE', 30 November 1989, SYP000160110001, p7.

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¶2.7.21 Within the Force there was an additional rationale:

¶The civil case was likely to take place in advance of any criminal proceedings against anyone arising out of the events at Hillsborough. Had this occurred a number of police witnesses, acting on legal advice, would in all probability have declined to give evidence on the grounds of possible self-incrimination. The South Yorkshire

¶Police would therefore have unnecessarily appeared evasive and the civil hearing been unduly prejudiced because of the lack of information forthcoming from those witnesses. Furthermore, any findings of liability may have been prejudicial to officers concerned in the criminal enquiry.

¶I have agreed therefore to accept the legal advice given to me and to settle out-of-court.9

¶2.7.22 As the police solicitors, Hammond Suddards, subsequently explained in a letter to the Steering Committee of solicitors representing claimants (Hillsborough families), the settlement offer applied only to claims that fell within certain categories.10 It stated that 'all bona fide claims for compensation by those injured and the dependants of those who died at the ground will be paid on a common law basis to be agreed if possible or, failing agreement, to be assessed by the Court'.

¶2.7.23 Compensation would be 'paid for nervous shock cases, if they would be entitled to damages by law'. The relevant categories for inclusion were claimants who were: in pens 3 or 4 and suffered physical injury and nervous shock;11 in pens 3 or 4 and suffered no physical injury but suffered nervous shock; in another part of the ground and saw a spouse or child injured or killed; in another part of the ground and, knowing or believing a spouse or child to be in pens 3 or 4, later found them injured or dead; and persons involved in rescue attempts who were not originally in pens 3 or 4.12 9. Memorandum from Chief Constable Wright to all Chief Superintendents, 30 November 1989, SYP000160110001, p6. 10. Letter from Hammond Suddards to Hillsborough Steering Committee, 15 December 1989, SYP000160110001, pp2-5. 11. 'Nervous shock' in this context is a generic term signifying any recognised psychiatric injury sustained as a result of shock, including post-traumatic stress disorder (PTSD). The National Institute for Health and Clinical Excellence

¶(publications.nice.org.uk/post-traumatic-stress-disorder-ptsd-cg26/guidance#the-symptoms-of-ptsd) describes the symptoms of PTSD as follows:

The most characteristic symptoms of PTSD are re-experiencing symptoms. PTSD sufferers involuntarily re-experience aspects of the traumatic event in a very vivid and distressing way. This includes flashbacks where the person acts or feels as if the event was recurring; nightmares; and repetitive and distressing intrusive images or other sensory impressions from the event. Reminders of the traumatic event arouse intense distress and/or physiological reactions. In children, re-experiencing symptoms may take the form of re-enacting the experience, repetitive play or frightening dreams without recognisable content. Avoidance of reminders of the trauma is another core symptom of PTSD. This includes people, situations or circumstances resembling or associated with the event. People with PTSD often try to push memories of the event out of their mind and avoid thinking or talking about it in detail, particularly about its worst moments. On the other hand, many ruminate excessively about questions that prevent them from coming to terms with the event (for example, about why the event happened to them, about how it could have been prevented, or about how they could take revenge). PTSD sufferers also experience symptoms of hyperarousal including hypervigilance for threat, exaggerated startle responses, irritability and difficulty concentrating, and sleep problems. Others with PTSD also describe symptoms of emotional numbing. These include lack of ability to experience feelings, feeling detached from other people, giving up previously significant activities, and amnesia for significant parts of the event. Symptoms of PTSD often develop immediately after the traumatic event but in some (less than 15% of all sufferers) the onset of symptoms may be delayed. PTSD sufferers may not present for treatment for months or years after the onset of symptoms despite the considerable distress experienced, but PTSD is a treatable disorder even when problems present many years after the traumatic event. Assessment of PTSD can, however, present significant challenges as many people avoid talking about their problems even when presenting with associated complaints. www.nice.org.uk/nicemedia/pdf/CG026NICEguideline.pdf

¶These symptoms are a usual reaction to a traumatic event. However, their persistence and severity to the extent that they interfere with well-being constitute PTSD. Because of the circumstances of the disaster many more people than otherwise would be expected to suffer incapacitating PTSD. 12. Letter from Hammond Suddards to Hillsborough Steering Committee, 15 December 1989, SYP000160110001, pp2-5.

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¶2.7.24 Settlements were offered 'without making any admission of liability'.13 This was for two key reasons. First, it was considered that to do otherwise would risk prejudicing the interests of those officers under criminal investigation.

¶2.7.25 Second, as the Hillsborough Steering Committee explained in an update to its solicitors,14 it reflected SYP's intention to 'pursue a claim' against the other potentially liable organisations.15 The offers were accepted by the Steering Committee on behalf of the relevant claimants.

¶2.7.26 In the wake of the settlements, the level of compensation paid in relation to those who died was decided on the basis of the category in which the claim fell and the personal situation of the deceased. In cases that concerned the death of children, their parents received no more than the statutory bereavement allowance of £3,500 and funeral expenses.16

¶2.7.27 Cases that concerned the death of adults survived by dependants resulted in higher payments. Compensation for those who endured physical or psychological injury was assessed on the nature and extent of the injury, resulting loss of earnings or any ongoing medical costs.

¶Alcock and others v Chief Constable of South Yorkshire Police 2.7.28 The decision to defend claims that were not covered by the agreed categories resulted in two significant sets of proceedings in court. Each eventually reached the House of Lords. The first was Alcock and others v Chief Constable of South Yorkshire Police.

¶2.7.29 In proceedings brought on behalf of 16 claimants, but said to be representative of 150 similar claims, the primary issue concerned those who had suffered psychiatric illness due to the shock of what had happened to their friends or relatives at the stadium. The legal question was whether and how, in such circumstances, people who were not directly involved or injured in the incident could be entitled to compensation as 'secondary victims'.

¶2.7.30 For the purposes of these proceedings, SYP admitted responsibility for the circumstances at the stadium, but argued that as a matter of public policy they should not be required to pay compensation to those who were too distant from what happened, either by relationship to those killed or injured, or in time and space.

¶2.7.31 The case proceeded through the High Court17 and Court of Appeal18 to a final determination in the House of Lords on 28 November 1991.19 Applying and clarifying long-standing principles of common law, the House of Lords ruled that, to establish a claim for psychiatric illness resulting from shock, it was necessary to show that the injury was a reasonably foreseeable result of the events at the stadium, and that the claimant was sufficiently proximate or close to what had happened.

¶2.7.32 Such proximity had to be established according to the relationship of the claimant to those directly injured as well as presence at the relevant events in time and space, although the mere fact of presence and relationship was insufficient. Proximity by relationship depends on ties of love and affection, the closeness of which should be proved in each case. 13. Memorandum from Chief Constable Wright to all Chief Superintendents, 30 November 1989, SYP000160110001, p6. 14. Letter from Elizabeth Steel of Hillsborough Steering Committee to a firm of Solicitors: Hillsborough Group Bulletin 11,

¶30 November 1989, FAM000000180001. 15. 'SOUTH YORKSHIRE POLICE AUTHORITY, FINANCE AND GENERAL PURPOSES COMMITTEE', 8 December 1989,

¶SPA000000760001, p1. 16. For example, see press cutting, Daily Mirror, 3 February 1995, SYP000160120001. 17. 31 July 1990, [1991] 3 All E.R. 88. 18. 3 May 1991, [1991] 3 All E.R. 88. 19. [1992] 1 A.C. 310.

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¶2.7.33 Such closeness would be easier to prove in relationships such as husband and wife or parent and child, but more remote relationships would require more careful scrutiny. Proximity in time and space to the incident or its immediate aftermath was equally essential in each case. It was necessary for the claimant to be within sight and hearing of the event or its immediate aftermath, and the viewing of the event on television was not sufficient for that purpose.

¶2.7.34 Lord Keith of Kinkel, with whom the rest of the Court agreed, explained:

¶Of the present plaintiffs two, Brian Harrison and Robert Alcock, were present at the

¶Hillsborough ground, both of them in the West Stand, from which they witnessed the scenes in pens 3 and 4. Brian Harrison lost two brothers, while Robert Alcock lost a brother-in-law and identified the body at the mortuary at midnight. In neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law. In my opinion the mere fact of the particular relationship was insufficient to place the plaintiff within the class of persons to whom a duty of care could be owed by the defendant as being foreseeably at risk of psychiatric illness by reason of injury or peril to the individuals concerned. The same is true of other plaintiffs who were not present at the ground and who lost brothers, or in one case a grandson.

¶I would, however, place in the category to members of which risk of psychiatric illness was reasonably foreseeable Mr and Mrs Copoc, whose son was killed, and

¶Alexandra Penk, who lost her fiancé. In each of these cases the closest ties of love and affection fall to be presumed from the fact of the particular relationship, and there is no suggestion of anything which might tend to rebut that presumption. These three all watched scenes from Hillsborough on television, but none of these depicted suffering of recognisable individuals, such being excluded by the broadcasting code of ethics, a position known to the defendant. In my opinion the viewing of these scenes cannot be equiparated with the viewer being within 'sight or hearing of the event or of its immediate aftermath,' to use the words of Lord Wilberforce [in another case], nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.20

[1992] 1 A.C. 310 at 398. See also: Lord Ackner at 405-406: 'Only one of the plaintiffs … , namely Brian Harrison, was at the ground. His relatives who died were his two brothers. The quality of brotherly love is well known to differ widely – from Cain and Abel to David and Jonathan. I assume that Mr Harrison's relationship with his brothers was not an abnormal one. His claim was not presented upon the basis that there was such a close and intimate relationship between them, as gave rise to that very special bond of affection which would make his shock-induced psychiatric illness reasonably foreseeable by the defendant. Accordingly, the judge did not carry out the requisite close scrutiny of their relationship. Thus there was no evidence to establish the necessary proximity which would make his claim reasonably foreseeable and, subject to the other factors, to which I have referred, a valid one. The other plaintiff who was present at the ground, Robert Alcock, lost a brother-in-law. He was not, in my judgment, reasonably foreseeable as a potential sufferer from shock-induced psychiatric illness, in default of very special facts and none was established. Accordingly their claims must fail, as must those of the other plaintiffs who only learned of the disaster by watching simultaneous television'. And Lord Oliver of Aylmerton at 417: 'In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual. In my judgment, the necessary proximity was lacking in their cases too, but I also agree with my noble and learned friend, Lord Keith of Kinkel, that there is also lacking the necessary element of reasonable foreseeability'. Or Lord Jauncey of Tullichettle at 424: 'Only two plaintiffs, Mr and Mrs Copoc, lost a son, but they saw the disaster on television and Mr Copoc identified the body on the following morning having already been informed that his son was dead. No plaintiff lost a spouse. None of the other plaintiffs who lost relatives sought to establish that they had relationships of love and affection with a victim comparable to that of a spouse or parent. In any event only two of them were present in the ground and the remainder saw the scenes on simultaneous or recorded television. In these circumstances none of the plaintiffs having satisfied both the tests of reasonable foreseeability and of proximity'.

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¶Hicks v Chief Constable of South Yorkshire Police 2.7.35 The second action was Hicks v Chief Constable of South Yorkshire Police. In these proceedings, the primary issue concerned the extent to which compensation was payable for the pre-death pain and the suffering of those who had died. Again, for the purposes of these proceedings, SYP accepted responsibility for the circumstances, but argued that there was no pre-death pain and suffering because the medical evidence purported to establish that the deceased victims would have lost consciousness within a matter of seconds before they died.

¶2.7.36 The case proceeded through the High Court21 and Court of Appeal22 to a determination in the House of Lords on 5 March 1992.23 Throughout, on the basis of the medical evidence presented, the Courts accepted and agreed with the argument advanced by SYP. The short judgment handed down by Lord Bridge of Harwich, with whom the rest of the Court agreed, was clear:

¶The appellants are the parents of two girls, Sarah and Victoria Hicks, who died in the disaster at Hillsborough Football Stadium on April 15, 1989, when they were respectively 19 and 15 years of age. … The basis of the claim advanced here is that at the moment of death Sarah and Victoria each had an accrued cause of action for injuries suffered prior to death which survived for the benefit of their respective estates. The action was tried by Hidden J. who held that the plaintiffs had failed to prove that either girl suffered before death any injury for which damages fell to be awarded. His decision was affirmed by the Court of Appeal …

¶No one can feel anything but the greatest sympathy for the relatives of those who died in the disaster, the circumstances of which are now all too well known. The anguish of parents caused by the death in such a horrifying event of sons and daughters who were on the very threshold of life must indeed have been almost unbearable. But the common law has never awarded damages for the pain of bereavement. [An Act of Parliament in 1982] introduced such a claim for the first time in the fixed sum of £3,500 (subsequently increased by statutory instrument to £7,500) but only for the benefit of a spouse in respect of the death of the other spouse or for the benefit of parents in respect of the death of a minor child. … In respect of the deaths of Sarah and Victoria …, apart from a bereavement claim under the Act of

¶1982 in respect of Victoria, a claim for damages in respect of injuries suffered before death was the only claim which Mr. and Mrs. Hicks could bring.

¶… We were assured by counsel, and I have no reason to doubt it, that the action was not brought for the sake of the money that may be awarded but rather to mark the anger of these parents and other bereaved relatives at what occurred. But whatever justification there may be for that anger has no relevance to damages in a civil action for negligence, which are compensatory, not punitive.

¶The difficulty which immediately confronts the appellants in this House is that the question what injuries Sarah and Victoria suffered before death was purely one of fact and Hidden J.'s conclusion on the evidence that the plaintiffs had failed to discharge the onus of proving any such injury sufficient to attract an award of damages was a finding of fact affirmed by the Court of Appeal. …

Judgment by Mr Justice Hidden of the Queen's Bench Division, Liverpool Crown Court: Various Plaintiffs v Chief

¶Constable of South Yorkshire Police, 31 July 1990, LLS000000220001. 22. 3 May 1991, [1992] 1 All E.R. 690. 23. [1992] 2 All E.R. 65.

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¶The evidence … showed that both girls died from traumatic asphyxia. They were in the pens at one end of the Hillsborough Stadium to which access was through a tunnel some 23 metres in length. When the pens were already seriously overcrowded a great number of additional spectators, anxious to see the football match which was about to start, were admitted through the turnstiles and surged through the tunnel causing the dreadful crush in the pens in which 95 people died. Medical evidence which the judge accepted was to the effect that in cases of death from traumatic asphyxia caused by crushing the victim would lose consciousness within a matter of seconds from the crushing of the chest which cut off the ability to breathe and would die within five minutes. … Hidden J. was not satisfied that any physical injury had been sustained before what he described as the 'swift and sudden [death] as shown by the medical evidence.' … These findings, as Hidden J. himself said 'with regret,' made it impossible for him to award any damages.

¶… The Court of Appeal … carefully reviewed the evidence and concluded, in agreement with Hidden J., that it did not establish that any physical injury was caused before the fatal crushing injury. … In the circumstances I think it sufficient to say that, in my opinion, the conclusion of fact reached by Hidden J. and the Court of Appeal was fairly open to them and it is impossible to say that they were wrong.

¶2.7.37 As explained in Chapter 5, the disclosed documents reveal that the medical evidence which provided the basis for this conclusion is contested. Consequently, the conclusion reached by the Courts remains open to question.

¶2.7.38 In the years that followed, SYP and its insurers received, processed and settled further compensation claims. Primarily these related to psychological injury and post-traumatic stress disorder (PTSD), but also extended to individuals with long-term physical healthcare needs as a consequence of Hillsborough.

¶2.7.39 The total amount eventually paid out in compensation to a total of over 1,500 claimants was approximately £19.8 million. The total figure expended in legal costs was £3.8m.24,25

Compensation expenditure calculated from a briefing paper submitted to the Home Office in 1999,

¶HOM000010130001, and confirmed by South Yorkshire Police Authority. Legal costs also confirmed by South

¶Yorkshire Police Authority. 25. The Hillsborough Disaster Appeal (key references are CMS000001000001 and HWP000001120001)

¶Outside the civil cases, the Hillsborough Disaster Appeal Fund also provided financial support to the injured and bereaved. The Fund was launched and established as a Trust in the days following the disaster by four sponsors:

¶the Lord Mayors of Sheffield and Nottingham; the Chairman of Liverpool City Council; and the Chairman of Liverpool

¶Football Club. Trustees were nominated by the sponsors.

¶Donations to the Fund were generous and the Trustees expressed their 'gratitude and, indeed, amazement at the incredible generosity' which the disaster prompted. The result was that £12.1 million had been raised by the first anniversary of the disaster in April 1990, 'far and away the largest domestic disaster Fund ever raised [in the UK]'.

¶In addition to large donations from the Government (£500,000) and elsewhere, the Trust was to receive money from

¶'hundreds of spontaneously organised events and activities, as well as from countless donations from individuals, educational and sporting organisations, and businesses large and small'. A selection of letters enclosing donations can be found at LCA000000010001.

¶The Trust's view was that money should be distributed as quickly as possible and within a year £10 million had been distributed to bereaved families and also to 647 injured survivors, each of whose claim was assessed by the Trust's

¶Medical Panel. By the time distribution of money to the injured and bereaved was complete, in June 1992, the final figure had risen to £11.8 million.

¶The balance of funds raised by the appeal, eventually amounting to £1.9 million, was placed in a separate Charitable

¶Trust. This Charitable Trust funded a range of projects, including memorial bursaries in Liverpool, Sheffield and

¶Nottingham, as well as funding training courses for doctors, paramedics and members of the emergency services.

¶These and other recipients of funding were considered 'appropriate to commemorate those who died at Hillsborough, and to commemorate the generosity of those who contributed to the appeal'.

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¶Compensation claims on behalf of police officers, including the cases of White v Chief Constable and Frost v Chief Constable 2.7.40 From the earliest publicity concerning compensation claims by police officers who had suffered psychological injury as a consequence of the Hillsborough disaster, the issue was controversial.

¶2.7.41 Those who had suffered bereavement and injury could not reconcile the six-figure sums suggested by the media in relation to such claims with the relatively paltry sums they had themselves received, particularly those for whom compensation amounted to a £3,500 statutory bereavement payment and funeral expenses.

¶2.7.42 It was also controversial within SYP, whose senior managers were concerned about the impact on the Force should officers bring claims against their own Chief Constable.26 They were also concerned that floodgates might open should the initial claims prove successful.

¶The origin of the claims 2.7.43 Initially, the Police Federation's Sheffield branch proposed that officers affected by the disaster would not take legal action but claim from the Hillsborough Disaster Appeal Fund established 'for the assistance of those who have suffered injury or loss as a result of the Hillsborough disaster'.27

¶2.7.44 In June 1989, with the approval of CC Wright, a letter from the Police Federation representative, Paul Middup, was circulated to affected officers:

¶It has been announced on local radio that the Trustees of the Hillsborough Disaster

¶Appeal Fund would like anyone who thinks that they may be entitled to make a claim for either physical or psychological reasons should [sic] contact them.

¶A number of West Yorkshire officers successfully claimed from the Bradford Fire

¶Disaster Appeal Fund and I see no reason why our officers should not claim from the

¶Hillsborough one, if indeed, they feel that they have been affected. There must be a good chance that out of the 200 plus officers who had to be counselled after the tragedy some will be eligible to claim.

¶Unfortunately, if they did not hear the announcement on local radio they may not know anything about making a claim. I believe that it is important that it be brought to the notice of everyone who may be eligible.28

¶2.7.45 By October 1989 the position had changed. A further letter from the Police Federation, not approved by the SYP Chief Constable, raised the possibility of civil claims possibly alongside claims to the Disaster Appeal Fund.29 It suggested that police officers 26. The basis on which officers were able to bring claims against their Chief Constable was similar to the basis on which claims were brought by those bereaved and injured, i.e. that they had suffered harm as a result of a wrong or a 'tort' for which the Chief Constable was ultimately responsible. In addition, the officers were also able to argue that they were entitled to recover damages either on the basis of an employer's duty to protect employees from harm through work or by virtue of their status as rescuers. 27. Internal Home Office memorandum, 18 April 1989, HOM000006980001, p1. 28. Letter from Paul Middup to CC Wright, 27 June 1989, SYP000160130001, p11. Whether any claims to the Appeal

¶Fund were eventually made is not clear since payments made by the Fund to the injured were made in confidence. 29. Letter from Paul Middup to Police Federation members, 9 October 1989, SYP000160130001, p8.

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¶should 'not be hesitant about making a claim', noting that all 'claims made on behalf of our people after the Bradford fire were successful and incidentally, they all also claimed from the Disaster Fund itself and they too were all successful'.

¶2.7.46 The Police Federation intended that claims should be made against the Health and Safety Executive (HSE) and SWFC. Its position, however, could not be sustained. In refusing a request from the Federation for assistance with legal costs, South Yorkshire Police Authority was clear that, given other ongoing civil claims made against SYP, 'it may be anticipated in due course that the Chief Constable will be enjoined in the proceedings'.30 He was, and by 1 February 1990 SYP had received 26 claims from its officers, and a further 100 claims were anticipated.31

¶2.7.47 These and subsequent claims were made by officers with a range of distinct experiences at Hillsborough. Some had been involved in rescue attempts, pulling bodies from the pens or giving mouth-to-mouth resuscitation.

¶2.7.48 Others had been on duty later in the day at the stadium gymnasium, designated a temporary mortuary, or assisting in identifying bodies or in clearing the scene. Claims were made on the basis that police officers' experiences, in the course of their formal duties, had resulted in psychiatric injury including PTSD.

¶The South Yorkshire Police response 2.7.49 The claims provoked concern within SYP. Although the Police Federation had advised officers that the Chief Constable, Peter Wright, regarded legal action as 'entirely proper and legitimate',32 this was not the case. CC Wright clarified his position in a letter to the President of the Association of Chief Police Officers (ACPO).33

¶2.7.50 He viewed 'with extreme concern actions taken by one police officer against another, particularly in circumstances such as Hillsborough'. Recognising that this 'might be legally correct, the legal advices will have no concern about Force morale, about mutual reliance between officers, or about the effect that such action may have on subsequent day- to-day operational matters'.

¶2.7.51 CC Wright considered that the Police Federation had 'some responsibility to consider these factors when they embark on legal proceedings similar to those arising out of Hillsborough'. SYP Deputy Chief Constable Peter Hayes went further, writing in February 1990 that the claims were 'on one level unfortunate, distasteful, may adversely affect the morale and image of the Force'.34 He was also concerned that the claims could impact negatively on officers' ability to give evidence objectively when required to do so in proceedings such as the inquests or the contribution hearings.

¶Press response 2.7.52 There was no publicity concerning the claims until April 1990 when a story in the Sheffield Star was published, headlined 'Shocked police may sue Wright'. It stated: 'More than 150 South Yorkshire police officers are threatening to sue their own chief constable for

Letter from RC Johnson, South Yorkshire Police Authority, to Paul Middup, 16 October 1989, SYP000097060001, p44. 31. File note written by DCC Peter Hayes, 2 February 1990, SYP000160130001, p7. 32. File note written by DCC Peter Hayes, 5 February 1990, SYP000160130001, p9. 33. Letter from Chief Constable Peter Wright to President of ACPO, 25 April 1990, SYP000160130001, pp14-15. 34. File note written by DCC Peter Hayes, 2 February 1990, SYP000160130001, p7.

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¶damages over the Hillsborough disaster – a move which could split the force on the eve of the tragedy's first anniversary'.35

¶2.7.53 Following CC Wright's retirement in May 1991, responsibility passed to his successor, Richard Wells. Soon after Chief Constable Wells' appointment, DCC Hayes informed the new Chief Constable of the issue:

¶Currently 77 police officers from inspector down, mainly constables, through the

¶Federation solicitors Russell Jones & Walker have intimated their intention to sue the Chief Constable for damages for pain and suffering (psychological) endured by them at Hillsborough on 15 April 1989. All have undergone medical (psychiatric) examination and have evidence to substantiate their claims. An additional 19 would-be claimants have withdrawn their claims ...

¶Whilst we have never formally admitted liability for what occurred at Hillsborough, we have not disputed the claims made by others that by opening the emergency gates and failing to protect the tunnel under the West Stand thereby allowing spectator access to pens three and four when they were already full, we allowed a dangerous situation to develop.

¶By implication and general assumption, even by the High Court, we are assumed to have conceded this point.

¶I was advised by seven separate lawyers at a meeting some 18 months ago that in terms of civil negligence we are liable as stated above and our position is absolutely indefensible.36

¶2.7.54 This assessment of liability, however, did not mean that police claimants were considered to be eligible for compensation. They were considered to be in two distinct categories: rescuers (officers involved in handling the bodies in the activities at the pens or at the mortuary) and non-rescuers (officers not so directly involved).

¶2.7.55 DCC Hayes asserted that the SYP 'lawyers feel that we have a powerful case for resisting claims by non-rescuers on grounds of remoteness and this is strengthened by the recent Appeals decisions in the High Court apropos Hillsborough on 3 May 1991'.

¶2.7.56 The 'Appeals decisions' referred to were the decisions of the High Court and the Court of Appeal in the case of Alcock and others v Chief Constable of South Yorkshire. As explained above, the Court of Appeal had held that for those who were not 'rescuers', any entitlement to claim as 'secondary victims' had to be determined on the basis of proximity in time and space as well as relationship, depending on ties of love and affection, the closeness of which should be proved in each case.37

File note written by DCC Peter Hayes, 11 April 1991 and press cutting from the Star, SYP000160130001, pp12-13. 36. Memorandum from DCC Peter Hayes to CC Richard Wells, 8 May 1991, SYP000160130001, pp1-2. 37. Alcock and others v Chief Constable of South Yorkshire Police [1991] 3 All E.R. 8. See above for further detail.

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¶Rescuers' position 2.7.57 The position in relation to 'rescuers' was considered more complex, but the initial advice to the Force was clear: 'we resist on the possible grounds of lack of foreseeability, no duty of care, public policy and the fortitude and phlegm argument'.38

¶2.7.58 The advice to resist the claims was also informed by views within SYP, as expressed in a meeting with its insurers MMI and its solicitors Hammond Suddards.39 There was 'considerable anger and bitterness that these claims should be brought at all and it was noted that some 19 of the claims originally put forward had been withdrawn'.

¶2.7.59 While there was acceptance of 'some genuine serious psychiatric problems as a result of the disaster', it was expressed that 'a considerable number of officers were simply jumping on a bandwagon'. This does not suggest a direct link between 'anger and bitterness' within SYP and the decision by some officers not to proceed with their claims, but it was suggested.

¶2.7.60 The Police Federation's solicitors Russell, Jones & Walker wrote to MMI noting that a 'large number of those who commenced proceedings have now abandoned them'.40 Officers had 'complained ... that senior officers have brought undue pressure on them to drop their claim. Some have succumbed to this pressure'. These were not to be treated as formal complaints: 'indeed those officers who have succumbed to such pressure would naturally, for obvious reasons, be the last to wish formal complaints to be made'. They illustrate the tensions within SYP regarding claims made against the Force.41

¶2.7.61 On 9 May 1991, CC Wells announced his decision to resist the claims:42

¶We can confirm that writs on behalf of South Yorkshire police officers were issued on

¶Monday afternoon against the Chief Constable, Richard Wells.

¶The writs are in respect of the shock and stress suffered by officers who dealt with the

¶Hillsborough disaster in April 1989 and this action has been taken on their behalf by solicitors representing the Police Federation.

¶South Yorkshire Police intends to defend this action.

¶The Chief Constable has already gone on record expressing his disappointment that some officers feel the need to pursue claims. 'There are well-tried avenues in the

¶South Yorkshire Police for helping officers to overcome grief and mental anguish and

¶I'll do all I can personally to help them and their families to recover. An expression of some understanding and shared responsibilities from Merseyside to match our own expression of sorrow and shared liability would be enormously helpful. But meanwhile, I think the claims are as much symbolic – a bid for mental suffering to be recognised – as about search for compensation'. 38. Memorandum from DCC Peter Hayes to CC Richard Wells, 8 May 1991, SYP000160130001, pp1-2. The 'fortitude and phlegm argument' referred to here is the argument that, for example, 'the driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure … the noise of a collision and the sight of injury to others, and is not to be considered towards one who does not possess the customary phlegm' (per Lord Porter in Bourhill v Young [1943] AC 92 at 117). In the present context, it amounts to an expectation that the law would assume officers to be sufficiently robust to do their job and not to suffer shock as a result of their experiences in that job. 39. Letter and attendance note from Hammond Suddards to DCC Peter Hayes, 9 May 1991, SYP000160130001, pp3-6. 40. Letter from Russell Jones & Walker to Municipal Mutual Insurance, 22 November 1991, SYP000160130001, p21. 41. A minute of a Police Federation meeting of 14 February 1990 also illustrates those tensions. It speaks of 'immense pressure' being placed on members of the Federation not to proceed with claims. TPF000000080001. 42. South Yorkshire Police press release, 31 July 1991, SYP000160130001, p16.

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¶2.7.62 Doubts soon surfaced within the Force, however, concerning whether this public stance could and should be maintained. In November 1991 DCC Hayes wrote that SYP was 'adopting the stance that we must defend these actions at all costs in whatever way we can, in the event of the uniqueness of Hillsborough however it may in fact be more sensible to settle'.43

¶2.7.63 SYP's position was complicated. There was anger about the claims and a concern that to agree compensation to officers would open the 'flood gate' to further action; not just from officers affected by Hillsborough but nationally in other circumstances in which the police experienced trauma as a result of their work.44

¶2.7.64 Yet the internal analysis of the legal position gave rise to increasing doubts about whether all the claims could be successfully resisted. If SYP was likely to lose the claims, there were tactical and financial reasons why agreed settlements might be preferred in advance of any trial in court.

¶Settlement 2.7.65 By November 1992, the revised legal advice to SYP was clear. Regarding claimants in the category 'rescuer', SYP had no realistic chance of success at trial and it should agree to settle. After a meeting with representatives of the Police Authority and MMI, DCC Hayes wrote:

¶There are 50 officers who have lodged claims. Up to 20 of these on the evidence now available are obviously within the 'rescuer' category and in view of the precedents … we have no defence and an out-of-court settlement is obviously appropriate. There are about 10 officers who appear to have acted so far from the scene in both distance and time that they were not rescuers and should not be compensated.

¶The remaining 20 officers fall within these two extremes and it may be appropriate to offer all of them compensation, but the offer will be reduced as they are found to be further away from the clear 'rescuer' category.

¶After a long discussion, the above was agreed on the grounds that an out-of-court settlement would produce no new principle at law, would be made on the grounds that the defendant (South Yorkshire Police) caused the event resulting in the injuries, those compensated were definable as rescuers, a clear duty of care exists between the plaintiffs and the defendant and that the injuries sustained were foreseeable.

¶If we resist the claims in the case of the middle 20, the probability is that we will lose, attract considerable adverse publicity, lose credibility with our workforce, pay costs on top of damages, and because of the way this will be reported, give the mistaken impression that when Chief Constables expose officers to extremely difficult, dangerous or unpleasant events and psychiatric injury results, claims are almost certain to succeed. The important distinction in this case being that the South

¶Yorkshire Police were found liable for the disaster occurring.

¶Claims could total £1 million. This is covered by the Public Liability Policy and not by the Hillsborough insurance cover which is almost expended and so there are no financial provision problems.45

File note written by DCC Peter Hayes, 12 November 1991, SYP000160130001, p20. 44. File note written by DCC Peter Hayes, 25 February 1992, SYP000160130001, p23. 45. File note written by DCC Peter Hayes, 20 November 1992, SYP000160130001, p28.

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¶2.7.66 As this note illustrates, concern that an agreed settlement might have wider implications for the policing of dangerous situations had receded. A flood of claims from officers who might be traumatised by future events was thought to be unlikely since, in the case of Hillsborough, any settlement was predicated on the assumption that SYP 'caused the event resulting in the injuries'.

¶2.7.67 The decision to settle claims was not, however, implemented immediately. In his note of the same meeting SYP solicitor Peter Metcalf recorded 'that as we were not under any great pressure at the moment, we would not take steps to implement settlements'.46 This was a strategic decision, allowing the limitation period within which claims could be made to expire in order to 'deter any further claims being made in a "copy cat" manner'.47

¶2.7.68 Consequently, no claims were settled for a further two and a half years, until March 1995, just as proceedings were due to come to trial. By that point there were 52 claims standing. Fourteen claims, on behalf of officers in the 'rescuer' category, were settled at that stage. In 2001, two further claims from officers within the 'rescuer' category suffering from late onset PTSD were received, processed and settled. Settlements were reached in relation to 16 claims from 'rescuer' officers, resulting in an outlay of over £1.5 million in compensation, paid from the Force's Employer's Liability Insurance.48

¶White and others v Chief Constable of South Yorkshire Police 2.7.69 Meanwhile, the courts were required to deal with claims on behalf of five officers in the 'non-rescuer' category, selected as test cases on the basis that they were representative of the various roles carried out by claimants who had not been active in the immediate area where the deaths and injuries occurred.

¶2.7.70 The ensuing litigation progressed from the High Court49 to the Court of Appeal50 before it was determined in the House of Lords on 3 December 1998 under the case title of White and others v Chief Constable of South Yorkshire Police.51

¶2.7.71 That the named police officers had suffered PTSD caused by their experiences arising from the tragedy was not contested. Four of them had been on duty at the stadium. The fifth had been responsible for stripping bodies and completing casualty forms at a hospital.

¶2.7.72 As in Alcock and Hicks, for the purpose of the proceedings the Chief Constable admitted responsibility for the circumstances at the stadium, but disputed the officers' entitlement to recover compensation for any psychiatric injury they had suffered as they did not qualify as 'rescuers'.

¶2.7.73 By a three to two majority, the judges in the House of Lords ruled that the Chief Constable could not be liable for psychiatric injury sustained by officers who had not been involved as rescuers and attempts to establish liability in favour of the officers in these circumstances would not sit easily with the decision to deny compensation to bereaved

Attendance note, 20 November 1992, SYP000160130001, pp25-27. 47. Letter from Hammond Suddards to ACC Graham Moore, 25 July 1994, SYP000160150001, pp1-3. 48. These figures are drawn from material in the public domain and from records relating to individual officers which were disclosed to the Panel. 49. The Times, 3 July 1995. 50. [1998] Q. B. 254. 51. [1999] 2 A.C. 455.

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¶relatives of victims of the disaster who had not witnessed events at first hand or acted as rescuers. Lord Steyn explained:

¶In the present case, the police officers were more than mere bystanders. They were all on duty at the stadium. They were all involved in assisting in the course of their duties in the aftermath of the terrible events. And they have suffered debilitating psychiatric harm. The police officers therefore argue, and are entitled to argue, that the law ought to provide compensation for the wrong which caused them harm. This argument cannot be lightly dismissed. But I am persuaded that a recognition of their claims would substantially expand the existing categories in which compensation can be recovered for pure psychiatric harm. Moreover, as the majority in the Court of

¶Appeal was uncomfortably aware, the awarding of damages to these police officers sits uneasily with the denial of the claims of bereaved relatives by the decision of the

¶House of Lords in Alcock … The decision of the Court of Appeal has introduced an imbalance in the law of tort which might perplex the man on the Underground.52

¶2.7.74 Lord Griffiths gave a different opinion:

¶2.7.75 In this thread of litigation through the courts a small overall majority of five judges (Mr Justice Waller at first instance in the High Court, Lord Justice Judge in the Court of Appeal and Lords Steyn, Hoffman and Browne-Wilkinson in the House of Lords) were in favour of the Chief Constable's argument for the dismissal of the claims on behalf of officers in the non-rescuer category.

¶2.7.76 However, four (Lord Justice Rose and Lord Justice Henry in the Court of Appeal; and Lord Griffiths and Lord Goff in the House of Lords) would have allowed some or all of the claims. This lack of unanimity was a reflection not only of tensions inherent in an area of the law where the needs of justice have to be mediated by the needs of public policy but also the political imperatives arising from the nature of events at Hillsborough.

[1999] 2 A.C. 455 at 494-495. See also Lord Hoffmann at 505: 'Essentially, … the plaintiffs draw two distinctions between their position and that of spectators or bystanders. The first is that they had a relationship analogous to employment with the Chief Constable. … The plaintiffs say that they were therefore owed a special duty which required the Chief Constable and those for whom he was vicariously liable to take reasonable care not to expose them to unnecessary risk of injury, whether physical or psychiatric. Secondly, the plaintiffs (and in this respect there is no difference between the police and many others in the crowd that day) did more than stand by and look. They actively rendered assistance and should be equated to "rescuers," who, it was said, always qualify as primary victims.

¶But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.' 53. [1999] 2 A.C. 455 at 465.

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¶2.7.77 The disclosed material reveals that, despite initial consternation within SYP about the prospect of claims from their officers, the strategy adopted by the Chief Constable and SYP's solicitors, Hammond Suddards, to limit those claims was eventually vindicated. In effect, it restricted the claims which succeeded to those on behalf of a relatively small number of SYP officers.

¶The 'contribution hearings' 2.7.78 In the wake of his decision, announced on 30 November 1989, to settle certain claims on behalf of the bereaved and the injured,54 the SYP Chief Constable Peter Wright invited SWFC, Eastwood & Partners and SCC to join with SYP in the settlement negotiations. All three parties declined the invitation.

¶2.7.79 Subsequently, in the context of the lead actions of Chapman and Rimmer v Chief Constable of South Yorkshire, the Chief Constable issued 'contribution' or 'third party' proceedings against the Club and Eastwood & Partners (the 'defendants' to the third party proceedings).

¶2.7.80 The purpose was to determine the level of contribution required from each party towards the sums to be paid on damages claims arising from the disaster. SCC was not a party to the action, but was pursued for contribution subsequently and separately.

¶2.7.81 Both SWFC and Eastwoods had indicated that they would cooperate in bringing the third party proceedings to trial as soon as possible. The SYP Chief Constable, however, was in an awkward position regarding the preparation of his case while SYP officers were under investigation and faced the possibility of criminal prosecution.

¶2.7.82 An initial attempt by the Chief Constable to stay, or postpone, the litigation was dismissed by the High Court on 26 October 1989, and the two actions on behalf of Chapman and Rimmer were scheduled to come to trial on 11 June 1990.

¶2.7.83 On 15 December 1989, at a pre-trial review in the High Court, it was submitted on behalf of the Chief Constable that there should be 'no fixed date' for a trial of the contribution proceedings and that matters might be delayed as far as 1993 or, indeed, beyond.55 That submission was rejected by the Court, which directed that the trial of the contribution proceedings should be fixed for hearing in October 1990.

¶2.7.84 Consequently, on 15 January 1990 the Chief Constable issued an application to the High Court seeking permission to discontinue the contribution proceedings, on the basis that it was for him to determine when and how he chose to litigate the issue of contributions. SWFC and Eastwoods responded with counter-applications regarding the basis of any grant of permission to discontinue the contribution proceedings.

¶2.7.85 The Chief Constable's application and the counter-applications went before the High Court on 6 March 1990 when the arguments on behalf of the Chief Constable were rejected.56 Mr Justice Steyn held that the pending contribution proceedings could be set aside only on the Chief Constable's undertaking not to bring further proceedings against SWFC and Eastwoods, and that 'on the information presently available, there is no reason why a fair hearing of the issues could not take place in October or November of this year'.

'PRESS STATEMENT OF THE CHIEF CONSTABLE', 30 November 1989, SYP000160110001, p7. 55. Court transcript from 15 December 1989, SYC000001430001, p155. 56. Court transcript from 6 March 1990, SWF000000920001.

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¶2.7.86 Meanwhile, the Director of Public Prosecutions' (DPP's) decision not to bring criminal charges against any individual prompted the Coroner to announce that the adjourned inquests would resume in November 1990. This drew adverse comment from the solicitors for all parties to the contribution proceedings.

¶2.7.87 They considered it would be 'highly unfortunate' if the contribution proceedings overlapped with the inquests, not least because the inquests might otherwise benefit from access to the transcripts of the contribution proceedings.57

¶Developing the case 2.7.88 As discussed in Chapter 6, on 31 May 1990 an 'action team' of SYP officers headed by Chief Superintendent Terry Wain was placed at the disposal of Peter Metcalf of SYP solicitors Hammond Suddards.58 This was, in effect, the re-activation of the team that had conducted the internal SYP investigation in the immediate aftermath of the disaster, and had been disbanded at the conclusion of the Taylor Inquiry.

¶2.7.89 In the context of the contribution proceedings, its first task was to prepare a report for Superintendents Bernard Murray, Roger Greenwood and Roger Marshall and all other officers of inspector rank and above who had had responsibilities on the day of the disaster at the Leppings Lane end of the ground, the concourse, the turnstiles and the outer perimeter area.

¶2.7.90 The report was intended to raise officers' awareness of the forthcoming trial of the contribution proceedings and to explain that its purpose was to determine the extent and proportion of liability between the parties involved. It was also intended to forewarn police witnesses that they might be called to support the police case or that of the other parties.59

¶2.7.91 Mr Metcalf was hopeful 'that the trial is largely concerned with expert evidence and legal argument, with the factual background being either agreed or put in by reference to statements or transcripts of evidence given to the Inquiry'.60 At a directions hearing on 24 May 1990, the Court ruled on the admissibility of LJ Taylor's Interim Report as evidence in the proceedings and the mechanism by which the parties should respond to the issues addressed by LJ Taylor: 'each party is to mark up copies of the interim and final Taylor reports by underlining those aspects of the report which they do not admit for the purposes of trial'.

¶2.7.92 After consulting with Counsel, Mr Metcalf observed that 'there is a good deal of the interim [report] with which we disagree'. Consequently, the action team was asked to consider specific issues and whether the investigation could be taken further:61

Whether we should accept the HSE estimate of about two thousand people entering the ground through Gate C at the second opening
Davies Arnold Cooper, SWFC solicitors, to Dr Popper, 19 September 1990, SWF000001430001, p155. 58. Memorandum from Chief Superintendent Wain to Chief Superintendent Mole, 1 June 1990, SYP000118480001, p47. 59. File note written by DCC Peter Hayes, 30 May 1990, SYP000098230001, pp1-4. 60. Letter from Peter Metcalf, Hammond Suddards to DCC Peter Hayes, 25 May 1990, SYP000098240001, pp2-4. 61. Letter from Peter Metcalf, Hammond Suddards to DCC Peter Hayes, 31 May 1990, SYP000098250001, pp2-4.

¶Extensive documentation relating to the investigations carried out by the South Yorkshire Police team for the hearings including witness statements, correspondence, memos and notes for Counsel is available on the Panel's website. See the South Yorkshire Police series entitled 'Contribution Hearings'.

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Whether we can get to the bottom of the evidence relating to the closing of the tunnel in 1988 ... 62
Whether there might be available copies of press cuttings and statements issued by Bert McGee on his retirement.
Whether it might be possible for you to prepare a comprehensive plan of the location of fatalities working from the individual plans produced at the Inquest hearings63
Whether anyone can remember what was the reason for the Police suggesting that there ought to be a second gate in at least one of the radial fences when alterations were being made to the ground in the summer of 1985.

¶2.7.93 Additional to the issues identified by Mr Metcalf and SYP Counsel Bill Woodward QC, a further review of the report by C/Supt Wain, Chief Superintendent Brian Mole and recently promoted Superintendent Norman Bettison highlighted a number of other statements that were 'not agreed'. These concerned sales of alcohol, access through the turnstiles, the role of stewards and the provision of pre-match entertainment.64

¶2.7.94 These issues underpinned the investigation conducted by the action team. SYP officers identified from their recollections as having made reference to the issues under investigation were re-interviewed by the team and invited to supplement their original statement with information now considered relevant in support of the South Yorkshire Police case.

¶2.7.95 However, progress reports on the actions taken and their outcome suggest that there was little new information to be found to challenge the conclusions of LJ Taylor's Interim Report. For example, regarding the 1988 closure of the tunnel, Detective Inspector John Cleverley reported:

¶Nothing has been found to alter the basic conclusions of [the] enquiry, namely that officers had acted on their own initiative to close off the tunnel at a critical time when the pens were becoming full …

¶We have interviewed again the officers who closed the gates. The instructions to do so came from police sources, not the club so far as they knew. No stewards were involved. The operation seems to have been simple and low key, with not much more than three officers involved, and not lasted longer than the full surge of incoming spectators before the start of the match …

¶No evidence has been found of club involvement.65 62. There was some suggestion from witness statements that Sheffield Wednesday's stewards may have been involved on previous occasions when the tunnel had been closed at FA Cup matches in order to avoid over-filling of pens 3 and

This was viewed as particularly significant because the Taylor Report had been critical of the police failure to pick up the blocking of the tunnel in the debriefings which followed those earlier matches. If stewards were involved or if instructions came from the Club's officials then 'the Club's responsibility is correspondingly increased'. 63. The preparation of a plan showing the position of fatalities was an essential part of the case that the collapse of the barrier in pen 3 was more significant than had been recognised and 'turned an already serious incident into a major disaster'. It was thought it would be much more difficult for opponents to attack a plan prepared directly from the inquest material than a case dependent principally on oral evidence. 64. Memorandum from C/Supt Wain to DCC Hayes, SYP000098290001, pp5-9. For example, in response to the statement 'PARA 55 – Evidence did not suggest a great amount of alcoholic drink was bought (at the off licences)' it was noted 'The enquiry team remember that evidence was available of at least one off-licence (believed to be

¶Gateway) selling out of alcoholic drink. No statement can be found to this effect. If this evidence is thought to be significant then it will be found – by speaking to Gateway staff if absolutely necessary'. 65. Report from DI Cleverley to C/Supt Wain, 3 July 1990, SYP000098390001, pp4-5.

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¶2.7.96 The line of enquiry concerning the statement made by Bert McGee, SWFC Chairman (reported by the Sheffield Star, 16 March 1990) that hundreds of ticketless Liverpool fans had travelled to Hillsborough with the intention of creating mayhem yielded little: it 'appeared not to affect the question of liability'.66

¶2.7.97 Similarly, checks made by the team found 'nothing of value' relating to any police suggestion that there ought to be additional gates in the radial fences.67 Regarding HSE evidence it was reported that '[t]he figure cannot be challenged by better evidence.'68

¶2.7.98 A 'body plan' showing the location of fatalities and the seriously injured was produced from the 'individual body plans and Coroner's evidence' in accordance with Mr Metcalf's specification. It was not straightforward:

¶In discussion of the plan it was clear that the first impression did not immediately convey what Mr Metcalf was looking for ...

¶[Name redacted] decided to try another plan on a smaller scale ... the overall effect was much better than on the large plan, in that the dots became more prominent, and showed the crowding towards the front of the pen much better. The marker dots are now representing an area of .4 metre, roughly the breadth of a man's shoulders and there can be no suggestion of exaggeration on our part.69

¶2.7.99 Police officers' evidence regarding the closure of the tunnel and monitoring capacity in the pens was inconsistent and highlighted ambiguity in police custom and practice. Yet there was uncertainty about the potential of mounting a realistic challenge to the findings of the Taylor Inquiry.

¶2.7.100 However, on the understanding of provisional indications that expert evidence would demonstrate that the fatal consequences of opening the gates were the result of serious flaws in the design of the ground rather than police failures, Mr Metcalf decided that SYP would 'not now concede … that the failure to block the entrance to the tunnel on the opening of Gate C itself amounted to negligence'.70

¶Commissioned reports 2.7.101 As discussed in Chapter 6, David Phillips, Deputy Chief Constable of Devon and Cornwall, was instructed on behalf of SYP to provide expert evidence regarding the policing of the event and John Stalker, former Deputy Chief Constable of Greater Manchester Police, was instructed on behalf of SWFC. Eastwoods appear to have decided against obtaining or relying on expert evidence.71

Action taken by the South Yorkshire Police, 13 June 1990, SYP000110320001, p4. 67. Action taken by the South Yorkshire Police, 25 June 1990, SYP000110340001, p30. From the document: 'NATURE

¶OF ACTION: CHECK TRANSCRIPTS & SUBMISSIONS BY SWFC RE FENCE. CHECK TRANSCRIPTS AND FINAL

¶SUBMISSIONS BY SHEFFIELD WEDNESDAY FOOTBALL CLUB RE ADDITIONAL GATE IN THE RADIAL FENCE IN

¶LEPPINGS LANE TERRACES ... RESULT OF ACTION: Checked. Nothing of value'. 68. Memorandum from DI Cleverley to C/Supt Wain, 16 June 1990, SYP000098370001, p4. 69. Memorandum from DI Cleverley to C/Supt Wain, 13 July 1990, SYP000098410001, pp2-6. 70. Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 19 July 1990, SYP000118290001, p4. 71. Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 30 August 1990, SYP000116060001, pp1-2.

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¶2.7.102 In his report DCC Phillips concluded:

¶The South Yorkshire Police on the basis of the evidence available to me planned the policing of this fixture in accordance with prevailing standards in 1989. Events at

¶Leppings Lane precipitated a situation they could not have foreseen and in the event they deployed as well as circumstances allowed. The decision to open the gates became inevitable and was a consequence of the culpable crowd misbehaviour and not of any failure in policing.

¶The overcrowding in pens 3 and 4 occurred because of fundamental design flaws resulting from ground alterations in 1981 and 1985. Responsibility in this rested primarily with the Club and its engineers. Whilst the police were members of the

¶Officer Working Party their role was marginal as to engineering matters and restricted to commenting on how physical structures affected their strategies in containing disorderly crowds.72

¶2.7.103 In contrast, Mr Stalker commented:

¶[I]n my opinion the South Yorkshire Police approached the policing of the 1989 semi-final with a certain lack of vision: this comment is not made in the knowledge that things went badly wrong. My professional impression is that they thought a combination of very substantial manpower and strict segregation of fans, written into a repeat of the 1988 Operational Order, was sufficient to see the day through.

¶In the main their plans worked well especially in relation to the movement of traffic, the prevention of disorder outside the ground and the reception of the

¶Nottingham supporters. In failing to consider the possible, indeed probably, late arrivals of Liverpool fans at the confined Leppings Lane entrances the police made an operational mistake. This in turn led to confused, chaotic and eventually unmanageable policing problems in Leppings Lane for which contingency plans should have been made. The result was the best efforts of Superintendent Marshall and of the mounted police officers were not enough. The bulk of spare policemen were behind the crowd rather than between it and the turnstiles. Once that had happened the need to open the gates became almost inevitable. The problem was foreseeable and avoidable by better management of the crowd route along

¶Leppings Lane.

¶Despite the relative operational successes in previous years Leppings Lane should have been closed to traffic from 2.00pm. Similar closures occur at many other grounds and the reasons are simple: to provide room, a line of sight, operational options and to remove confusion and danger to large crowds milling around moving vehicles. The fact that such closure was not considered, even as a set option for

¶Superintendent Marshall until the situation forced itself on him, was a major cause of his subsequent difficulties.

¶That, and the lack of police deployment across the mouth of the terrace tunnel, were in my view, the two serious flaws in the South Yorkshire Police operation.73

¶2.7.104 Mr Metcalf invited comments on the Stalker Report from the action team. He was satisfied, however, that the Phillips Report dealt reasonably well with Mr Stalker's criticism of the police handling of the crowd outside the turnstiles in Leppings Lane. 72. Report of JD Phillips, Deputy Chief Constable, Devon and Cornwall Constabulary, August 1990, SYP000116060001, p174. 73. Report of John Stalker, 20 August 1990, SYP000116060001, p278.

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¶2.7.105 It was also assumed that the importance attached to the events outside the turnstiles was reduced significantly by the HSE evidence indicating that the number of spectators who had entered the terraces, including those who entered through the opened Gate C, did not exceed the number allowed for under the safety certificate.

¶2.7.106 Of Mr Stalker's comments on events inside the stadium, he wrote that Mr Stalker 'blandly states that the tunnel ought to have been closed by the Commanding Officers, but does not give any reasons for suggesting this. His only other pertinent criticism appears to be that binoculars should have been available inside the Control Box'.74

¶2.7.107 C/Supt Brian Mole was also asked to provide further comments for the hearings on several issues in response to Mr Stalker's report. C/Supt Mole stated that the placement of barriers and cordons outside the stadium would not have prevented the build-up in Leppings Lane and, in fact, could have led to 'public order difficulties and breach of segregation'.

¶2.7.108 He referred to an assumption underpinning police planning, shared by SWFC and Dr Eastwood, that if the small gates at the head of the radial fences were locked open, the West Terrace could be treated as one entity.

¶2.7.109 He challenged the assumption that monitoring capacity in individual pens could be successfully achieved, noting 'categorically that if the Safety Certificate had been amended to include specific capacities for the individual pens then I would have insisted on sitting down with the responsible official at the club to determine how those limits ought to have been enforced'.75

¶2.7.110 C/Supt Mole referred to the 'great deal of misunderstanding of the reasons for … monitoring'. This was a policy followed only for league matches where a capacity crowd was not expected and the small gates at the rear of the radial fences were locked shut. On those occasions it was necessary for police to make a visual assessment of the number of fans allowed into the pens.

¶2.7.111 This policy was not followed at cup semi-finals or where a capacity crowd was expected. On such occasions 'all the gates between the pens would be locked open and no visual assessment of numbers would take place'. C/Supt Mole did not seek to defend the policy but challenged the representation that such a mistake was solely the responsibility of the police:

¶The belief common to club and police was that the terracing was safe up to its certified capacity as a whole on the basis that fans could move between individual pens. In hindsight this can be clearly seen to be a mistake but I reiterate that it was a mistake made by all those concerned. I specifically do not accept that the club would have been expecting the police to be monitoring numbers in individual pens on the day of the semi-final.

¶2.7.112 At the conclusion of the action team's investigations it was recognised that the findings, particularly concerning monitoring the capacity in the pens, suggested a negative outcome for SYP in the contribution hearings, as in the Taylor Inquiry.

¶2.7.113 It was suggested by the SYP solicitors that a more fruitful line could be offered by the evidence relating to the collapsed barrier: 'our prospects of substantially improving on

Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 30 August 1990, SYP000116060001, pp1-2. 75. Statement of C/Supt Mole, submitted to contribution hearings (undated), SYP000116400001, pp1-3.

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¶the outcome of the inquiry rest on convincing the court that the collapse of barrier 124A occurred as result of culpable failure on the part of the Club's Consulting Engineers'.76

¶The trial and terms of settlement 2.7.114 Following the announcement of the DPP's decision that no prosecutions would be brought,77 it was clear that the contribution proceedings would proceed to trial at the beginning of October as scheduled. At the pre-trial review, however, the judge assigned to hear the trial, Mr Justice Jowitt, indicated his view that SYP was clearly negligent and was surprised an out-of-court settlement had not been reached.

¶2.7.115 Mr Metcalf observed that there had been 'no balancing comment that he [Jowitt] saw the other parties extensively liable although clearly he does expect them to make a contribution'.78 Consequently, the Chief Constable was advised that the police case had to be realistic – there was no point in trying to defend the 'absolute indefensible'.

¶2.7.116 Regarding the seven officers identified as likely to face disciplinary proceedings, referred to as the 'at risk seven', a decision was taken not to call them to give evidence for SYP. Each had been asked to give additional statements expanding on their originals and all, with the exception of Supt Murray, had declined. It was thought to be 'folly' to call them without the benefit of such statements.

¶2.7.117 The possibility of applying to the judge for an adjournment until after the inquests was considered and rejected. The outcome of the inquests was considered difficult to predict and it was feared the officers might prove to be extremely negative witnesses if the inquest verdict had gone against them.

¶2.7.118 In the wake of the pre-trial hearing, it was anticipated that the officers would have to be called, at least to identify the transcripts of their evidence to the Taylor Inquiry. It was also considered that the judge might instruct them to answer all questions put to them.79

¶2.7.119 The trial commenced on 2 October 1990. Following four days of evidence, Counsel for SYP, Richard Payne, requested an adjournment following receipt of a message from Mr Metcalf and from Counsel for the Defendants. When the Court reconvened on Monday 8 October, an out-of-court settlement had been agreed between the parties.80

¶2.7.120 The terms of the settlement were not made public and the details are not recorded in the court papers. However, when questions about the overall payout and individual settlement of claims were subsequently raised by relatives of the deceased and injured, Mr Metcalf clarified the background and settlement terms:

¶[S]hortly before the hearing began, the Engineers made a cash offer of £1.5 million to cover the whole of their potential liability and shortly after the hearing began, the

¶Club indicated their willingness to match the sum. We were not immediately inclined to accept those proposals but, after the first few days of the hearing, it was clear that the Judge was not kindly disposed towards our case and it was decided to accept the sums offered, rather than risk the possibility of losing outright. 76. Letter from Hammond Suddards to 'Chief Superintendent', 16 August 1990, SYP000098520001, pp2-3. 77. Letter from Mr C Cleugh, Head of Police Complaints Division, CPS, to the Chief Constable, South Yorkshire Police,

¶30 August 1990, CPS000004930001, p1. 78. File note written by DCC Peter Hayes, 21 September 1990, SYP000118480001, pp20-22. 79. File note written by DCC Peter Hayes, 12 September 1990, SYP000118480001, pp38-39. 80. Full transcripts of the five days of the proceedings can be read on the Panel's website at: SYP000098630001;

¶SYP000098640001; SYP000098650001; SYP000098660001; SYP000098670001.

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¶Consequently, sums of £1.5 million were accepted from the Club and from the Club's

¶Consulting Engineers, Messrs. Eastwood and Partners. Subsequently, it was agreed that a further sum of £1 million (I believe that this is the correct figure) would be paid towards settlement by insurers on behalf of Sheffield City Council in consideration of the possible claim against them.

¶Thus the total sum of £4 million was contributed by other parties to a total liability now estimated at £12 million. If the estimate is correct then the South Yorkshire Police have taken two thirds of the liability with the other parties taking one third – 12.5% each for the Club and the Engineers and 8.3% for the City Council.81

¶2.7.121 Mr Metcalf indicated that it had been in SYP's interests to ensure that the terms of the settlement remained confidential because, at the time of the contribution hearings, figures of £20 million and £30 million had been quoted in the press.

¶2.7.122 It was a concern that in the context of this publicity the sums accepted from SWFC and Eastwoods would be seen as derisory and that the public would conclude that SYP had accepted full responsibility. SYP wanted the details to be treated as confidential and the other parties readily agreed.

¶2.7.123 In information provided to the Stuart-Smith Scrutiny, SYP attempted to make the case that the police had actually intended to take less than 50 per cent of the liability. It was argued that in December 1990, the total estimated liability arising from the disaster had been between £7 and £8 million and the three parties between them had thus contributed over 50 per cent of the expected cost.82 The disclosed documents do not reveal evidence to support this contention.

¶2.7.124 In the absence of such evidence, it appears clear that the contribution of £4 million made by the other parties amounted to approximately one fifth of the total of £19.8 million known to have been paid out by SYP in damages to the bereaved and injured.83

¶Compensation claims and settlements 2.7.125 Compensation payments to SYP officers were covered by SYP's employer's liability insurance policy. They totalled £1.5 million. The funds from which compensation payments to the injured and bereaved were made came from six sources: South Yorkshire Police Authority's public liability insurance cover (£8.5 million); South Yorkshire Police Authority's financial reserves (£4.5 million); special payments from the Home Office (£2.8 million); and as a result of the contribution hearings (£1.5 million from SWFC, £1.5 million from Eastwood & Partners and £1 million from SCC).

¶2.7.126 South Yorkshire Police Authority's Finance and General Purposes Committee met on 8 December 1989 to consider the implications of the decision to settle some compensation claims from the bereaved and injured. Press reports that estimated the final cost of claims as £50 million were noted, but regarded as speculation fuelled mainly by solicitors acting for the claimants. The Police Authority's public liability insurance cover with MMI was limited to £8.5 million.

Letter from Peter Metcalf, Hammond Suddards, to DCC Peter Hayes, 19 February 1992, SYP000160160001, pp1-3. 82. Letter from Superintendent AM Hepworth to C Bone, Hillsborough Scrutiny, 23 December 1997, SYP000160110001, pp8-9. 83. See below for details and source in relation to this figure.

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¶2.7.127 Minutes of the meeting recorded that the Police Authority's solicitor considered 'the estimate of £50m' was 'a wild exaggeration'. Further, the possibility that the Police Authority would 'ultimately have to bear any part of the cost' depended on 'the final bill and the extent of the police's liability'. However, the Police Authority's solicitor was 'reasonably confident at this juncture that the insurance cover will prove to be sufficient'.84

¶2.7.128 The announcement in the press that SYP proposed to pay compensation, possibly as high as £50 million, caused surprise and concern within the Home Office. Aware of the £8.5 million insurance limit, questions were raised about where that amount would be found.85 Other Home Office officials had greater awareness of the situation, having responded to a request from the Police Authority in October 1989 for guidance on whether the Home Office might help to meet the cost of claims from central funds.

¶2.7.129 At the time, South Yorkshire Police Authority's Clerk and Financial Officer, RC Johnson, wrote:

¶Unfortunately although half a year and more has elapsed since the date of the disaster, the size of this liability remains a matter of conjecture …

¶The Authority had instructed me to write to you to enquire under what circumstances and to what extent the Home Office will consider giving further special assistance to the Authority in meeting what could conceivably be a very substantial burden.86

¶2.7.130 The Home Office response gave no firm commitment to the Police Authority but it did not rule out a special payment. It noted that since the level of grant paid direct from the Home Office had been raised to 51 per cent of total police expenditure the only special payment made to any Force was also to South Yorkshire (in relation to the Hillsborough investigation led by WMP). It set out the circumstances in which a further payment might be considered:

¶(a) whether the size of the expenditure is such that to meet it would involve the police authority in such huge costs that the viability of the police force would be put at risk and (b) whether the commitment could have been foreseen (and so budgeted for ).

¶The problem with compensation liability following Hillsborough … although the size and timing of the commitment are uncertain, the likelihood of the commitment arising is foreseeable.87

¶2.7.131 It was clear from the Home Office response that the Police Authority should demonstrate full commitment to meeting its responsibilities before seeking further government funds: 'While … I do not wish to close the door in advance on any future application from your authority, I have to say that our expectation would be that it would have taken steps to cover this contingency from its own resources (including the grant it receives from the Government)'.

'SOUTH YORKSHIRE POLICE AUTHORITY, FINANCE AND GENERAL PURPOSES COMMITTEE', 8 December 1989,

¶SPA000000760001. 85. Internal Home Office memorandum, 1 December 1989, HOM000006080001. 86. Letter from RC Johnson, South Yorkshire Police Authority, to M Addison, Home Office, 27 October 1989,

¶HOM000013850001. 87. Letter from M Addison, Home Office to RC Johnson, South Yorkshire Police Authority, 6 November 1989,

¶SPA000000250001.

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¶2.7.132 There followed a different approach from the Police Authority. Having agreed to pay compensation to those claimants meeting certain criteria, there was concern that the statutory figure for bereavement under the Fatal Accidents Act 1976 was only £3,500.

¶2.7.133 The Police Authority considered making higher payments in some cases, as had been done following previous tragedies including the King's Cross fire. The Police Authority was keen to explore whether such additional payments would qualify for a police specific grant. The indications were positive. The Lord Chancellor was to review the statutory provision for compensation in the light of recent cases where payments had been made above the statutory amount.

¶2.7.134 While noting that it was for the parties involved to negotiate the level of settlement in each case, the Police Authority was advised as follows: 'As far as the grant position is concerned, if on legal advice, your Authority proposes to settle at a higher level than the statutory figure the Home Office would be prepared to pay grant on that element of compensation not covered by your Authority's insurance, provided the total compensation figure paid did not exceed £10,000 per person'.88

¶2.7.135 It is clear from the published updates from the Hillsborough Steering Committee of solicitors representing bereaved families that discussion of this issue was not confined to the Police Authority and the Home Office.

¶2.7.136 Elizabeth Steel, on behalf of the Steering Committee, wrote that it was 'common ground that the current level of damages for bereavement £3,500 is far too low and although Parliament has never pretended it should be a compensatory figure it has remained static since 1982 and should be increased'.89 The Hillsborough Steering Committee negotiated with the Police Authority and their insurers.

¶2.7.137 Despite those negotiations, and the assurance given by the Home Office, it appears that a higher figure in respect of bereavement was never formally agreed or paid, with bereaved families on record as having received only the statutory figure of £3,500.

¶2.7.138 Claims for compensation were received over a long period and the Police Authority's Finance and General Purposes Committee was given regular updates on anticipated costs. On 6 January 1995, the Police Authority's Clerk and Financial Officer reported that the then current estimate was that the £8.5 million insurance limit would be exceeded by £1.35 million. At that time 1,566 claims were reported as having been settled, with a further 80 outstanding.90

¶2.7.139 By 15 March 1996, the estimate of the uninsured costs had increased to a possible £2 million, £0.5 million more than the amount provided for in the Police Authority's allocation. This did not appear to create anxiety. The Police Authority was running a projected underspend of £1.442 million that year and its revenue reserves were understood to be £7.9 million.91

Letter from P Ransford, Home Office, to S Walker, South Yorkshire Police Authority, 20 February 1990,

¶HOM000036010001, p5. 89. Letter from Elizabeth Steel, Hillsborough Steering Committee to a firm of Solicitors: Hillsborough Group Bulletin 12,

¶29 December 1989, FAM000000190001, p10. 90. 'SOUTH YORKSHIRE POLICE FINANCE AND GENERAL PURPOSES COMMITTEE', 6 January 1995,

¶SPA000000830001. 91. 'SOUTH YORKSHIRE POLICE AUTHORITY, REPORT OF THE CLERK AND TREASURER', 15 March 1996,

¶SPA000000850001.

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¶2.7.140 Estimates of the likely final costs continued to increase and by September 1999 the situation was less manageable. The Police Authority's decision to fund the defence costs of its former officers (Chief Superintendent David Duckenfield and Supt Murray) in the private criminal prosecution threatened to impact directly on policing budgets already being 'squeezed' by Hillsborough.92

¶2.7.141 Writing to the Home Secretary to seek a meeting to discuss a further application for financial support, the Chair of South Yorkshire Police Authority, Clarence Swindell, suggested that the rising compensation costs 'could add around 13 per cent to Council Tax'.

¶2.7.142 Mike Hedges, who had recently succeeded Richard Wells as SYP Chief Constable, also wrote to the Home Secretary in support of an application for additional central funds.93 He considered that the 'exceptional nature of the impact of the Hillsborough Stadium Disaster of 15 April 1989 continues to affect the Force's finances in ways that could not have been foreseen'. This imposed 'a financial burden which reduces my ability to provide the people of South Yorkshire with the policing service that I would like and that they deserve'.

¶2.7.143 A briefing paper prepared by the South Yorkshire Police Authority for the meeting with the Home Office set out in detail the costs of settling the compensation claims. It explained that the £8.5 million insurance limit together with the £4 million contributions made by other parties that accepted a share of liability had been exceeded in June 1997.94

¶2.7.144 Since that time, payments made by the Police Authority from its funds in the settlement of claims totalled £2.227 million while reserves placed on outstanding claims stood at £5.078 million. The resulting overall total of £19.8 million represented a substantial increase on initial estimates. The uniqueness of Hillsborough was highlighted thus: 'Hillsborough has re-written the rules and will have caused all police authorities to review the limits of their public liability policies. South Yorkshire Police Authority now have an indemnity limit under their policy of £21m and this is currently under review'.

¶2.7.145 Ultimately, the Police Authority's case was persuasive and the Home Office agreed to provide £1 million in March 2000 in support of outstanding compensation payments (although it declined to provide financial assistance in support of former officers' defence costs). Following further discussion, an additional £1 million was provided in the next financial year, followed by £800,000 in 2002/03.95

¶Conclusion: what is added to public understanding • The decision by SYP to settle certain categories of compensation claims from the injured and bereaved in November 1989 was sudden and taken for legal and tactical reasons. It was made deliberately without any admission of liability so as not to prejudice the position of any police officers subsequently under criminal investigation. • Following legal action by SYP, other organisations agreed to contribute to the payment of compensation to the injured and bereaved as follows:

Letter from Clarence Swindell, Chair of South Yorkshire Police Authority, to Jack Straw MP, Home Secretary,

¶10 September 1999, HOM000010060001, pp4-5. 93. Letter from Chief Constable Mike Hedges to Jack Straw MP, 29 September 1999, HOM000010130001, pp3-5. 94. Letter and enclosure from South Yorkshire Police Authority to Chris Michael, office of Charles Clarke MP, 21 October

¶1999, HOM000010120001, p8. 95. Confirmed to the Panel by the Home Office.

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¶– Sheffield Wednesday Football Club – £1.5 million

¶– the Club's engineers Eastwood & Partners – £1.5 million

¶– Sheffield City Council – £1 million.

It was estimated that total compensation to the injured and bereaved might reach £12 million, suggesting that SYP would have accepted two-thirds of the liability and the other organisations one-third. Ultimately the cost of compensation rose to £19.8 million. SYP's public liability insurance cover was limited to £8.5 million. The remainder of the total was paid from the Police Authority's financial reserves and through special payments from the Home Office.
Compensation claims from SYP officers caused considerable tension within the Force. Senior officers viewed the claims with 'great concern' and junior officers felt 'immense pressure' from the Force to withdraw them. SYP accepted internally that they had 'no defence' in relation to a category of claims in late 1992, but did not agree to make payments until mid-1995. This was a strategic decision to deter 'copy-cat' claims. Those claims not settled were successfully defended in court. £1.5 million was ultimately paid out by SYP to 16 officers. The costs were met from the Force's employers' insurance cover.

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