The case of Durrant v Chief Constable of Avon & Somerset Constabulary [2017] EWCA Civ 1808, which arose out of the arrest of Ms Durrant on 13 June 2009, seems finally to have come to a conclusion, after three visits to the Court of Appeal. It is worth reading for its discussion on the award of damages for injury to "loss of feelings" where the police have racially discriminated against a person whom they have arrested and when aggravated and/or exemplary damages will be awarded.

You may remember this matter as being one of the first (and perhaps one of the harsher) decisions of the Appellate Courts in the post-Mitchell clampdown on missed deadlines (Durrant v Chief Constable of Avon and Somerset [2013] EWCA Civ 1624; [2014] 1 WLR 4313), which resulted in the Defendant's being unable to rely on any evidence in defence of the claim, other than two witness statements that it had managed to serve in time. 

The case then went to trial. Despite the Defendant's being unable to advance its full case, the judge nevertheless dismissed many parts of the Claimant’s claim. However, two incidents of racially discriminatory conduct were proved. First, that following a fracas involving taxi marshals and the Claimant and two associates of hers, the police initially focused on arresting the Claimant (who is of mixed race), before eventually also arresting her associates (who were white). Significantly, on this issue the judge did find that the police had proper grounds for arresting the Claimant. Secondly, the Judge found the handcuffing of the Claimant before she was placed in the police van was an act of race discrimination, her white friend not having been handcuffed.

Despite these two findings, at first instance the Judge did not make a finding of race discrimination in relation to a third allegation, that on arrival at the police station the Claimant was refused access to the loo. The Claimant eventually urinated in the corner of a holding cell in front of police officers. The Judge found that she had made four requests to use the loo, some of which were made to the same officers who had earlier subjected her to detrimental treatment on grounds of her race, due to ‘unconscious bias’. The Judge was critical of the ‘lamentable’ delay, but nevertheless concluded, “…I cannot discern any evidence that it was motivated consciously (or, I would add, unconsciously) by the fact that [the appellant] was of mixed race.”

The Claimant appealed the decision, arguing that the Judge ought to have made three further findings of discrimination, see Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275. The Court of Appeal rejected two of these grounds of appeal. Of interest is that one of the allegations of discrimination did not succeed on appeal because it had not been pleaded. The Court referred to The Law Society v Bahl [2003] UKEAT 1056_01_3107; [2003] IRLR 640, confirming at paragraph 45 that, “… a tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment. It is not for the tribunal to extend the range of complaints of its own motion.”

However, the Court of Appeal did overturn the judge’s finding in relation to the failure to respond sufficiently quickly to the Claimant’s request to use the loo. Section 57ZA of the Race Relations Act 1976 contained a similar provision as to the reversal of the burden of proof now found in s.136 of the Equality Act 2010. The Court of Appeal concluded at paragraph 51 that as a result of the operation of this section, “it was incumbent on the police to prove that there was an innocent, non-racial ground for this treatment of the appellant. It is at this second stage of the analysis that the non-availability of any admissible witness statement from [the relevant officer] to explain why he behaved as he did is critical.” Thus, it was at this point in the appeal that the original Court of Appeal decision, that the Defendant could not rely on the evidence of a witness whose statement was served late, came back into play.

We then move to the final Court of Appeal hearing, in which the award of damages was revisited in light of the additional finding of discrimination. This is of significant interest to all those who both bring and defend civil claims against the police.

The Court of Appeal increased the Claimant’s damages for injury to feelings from £4,950 to £14,000. The Court took into account:

- The new Vento guidelines set out in the Presidential Guidance issued in September 2017, notwithstanding that the case was issued in 2010 and related to events which took place in June 2009. This was regarded as “the best way in the circumstances in which this court finds itself of making due allowance for the effect of interest and an appropriate element of uplift in relation to the long and hard road which the appellant had to take to receive vindication”; and

- The protracted grievance process, which was not discriminatory in itself but which had arisen in consequence of the discriminatory act (following British Telecomunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327).

The Court of Appeal was asked by the Appellant to make an award of aggravated damages. It considered the following guidance in Commissioner of Police of the Metropolis v Shaw [2011] UKEAT 0125_11_2911; [2012] ICR 464 at [16]:

(2) The features that may attract an award of aggravated damages can be classified under three heads – (a) the manner in which the defendant committed the tort; (b) the motive for it; (c) the defendant's conduct subsequent to the tort but in relation to it.

(3) The features enumerated at (2) above affect the award of compensation because they aggravate the distress caused by the actual wrongful act.

The Court did not consider that it was appropriate to award aggravated damages because factors (a) to (c) did not apply in this case. The figure for ‘basic’ Vento damages of £14,000 already included compensation for the humiliating circumstances of the appellant’s treatment and the distress, particularly in relation to the urination incident. In relation to the specific three matters identified in Shaw:

- There was nothing additional in the manner in which the wrongs were committed which aggravated matters: the unlawful conduct was not accompanied by goading, lewd comments or abuse.

- The police acted as a result of unconscious bias, rather than due to an ill-intentioned motive.

- There was no additional element of post-incident inappropriate conduct by the police which would justify a further increase in damages. The police’s own inquiries were “lawful and proper” [23] and there was nothing arising out of the three successful allegations that meant it was inappropriate for the police to have sought to defend the claims in the usual way.

The Claimant also asked that an award of exemplary damages be made. This too was refused. Noting that exemplary damages are: “awarded to punish particularly outrageous behaviour on the part of a defendant” [24], the Court decided that “the police investigations were appropriate, genuine, properly motivated and lawful” and far from showing oppressive or arbitrary conduct, the investigations “show the police were at pains to act in a way which was not oppressive or arbitrary” [27].

Conclusion

The tortuous passage of this case, from initial incident, through complaint investigation to trial, adjournments and multiple Court of Appeal hearings, lasting over eight years, resembles a fictitious piece of litigation from the pen of Charles Dickens. Nevertheless, there is perhaps some good that can come of the case if the lessons learned reduce the cost and disruption of this type of litigation in future - for lawyers and litigants in person alike:

1. Court timetables must be adhered to, and parties must be pro-active if they anticipate missing a deadline. Parties must keep in mind CPR 3.8(4), and where appropriate remind a litigant in person of the limited scope for extending deadlines without the court’s permission by up to only 28 days.

2. Discrimination claims must be properly particularised. A claimant will not normally be able to recover compensation for a specific act of discrimination unless it is identified in the statement of case.

3. Aggravated damages are unlikely to be awarded unless (1) there are specific aggravating features that take the case beyond a ‘typical’ act of discrimination / false imprisonment etc, and (2) the ‘basic’ award is insufficient to compensate the claimant for the full extent of the treatment they received.

4. Exemplary damages are only very rarely awarded. While there is no formal rule, they will generally require behaviour that is widespread, deliberate, systemic, repeated, or involving those of higher ranks etc such that it is appropriate to punish the constabulary as a whole (through the chief constable) for its conduct.

5. It should be anticipated that the basic Vento will be large enough to include the stress and ongoing reminders that accompany the complaint / civil action process. However, aggravated or exemplary damages reflecting the conduct of civil proceedings (which must inevitably have been defended unsuccessfully) will be very unlikely unless there has been unreasonable behaviour in the conduct of the defence going beyond a consistent denial of the claimant’s account.