The Court of Appeal has reiterated, in Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49, that since non-pecuniary damages in civil claims against the police. e.g. for loss of liberty, or distress and inconvenience, are generally assessed by reference to all matters leading up to the judgment, there will usually be no need for an additional award of interest. A substantial award of exemplary damages – £150,000, split between three claimants, was upheld on the basis that the case had involved an egregious prosecution set in motion by an officer of very senior rank (a Detective Chief Superintendent).
Judgment
Jonathan Rees was one of three men prosecuted in respect of an alleged contract killing in a pub car park in 1987. At the criminal trial, it was ruled that the evidence of a key witness, Gary Eaton, should be excluded because a police officer, Detective Chief Superintendent David Cook, had compromised the integrity of Mr Eaton’s evidence by allowing extensive contact with Eaton in contravention of accepted procedures. During this period Mr Eaton’s evidence had expanded to include presence at the scene of the killing shortly after its commission and knowledge of the three men in the vicinity. The prosecution was eventually discontinued and not guilty verdicts returned.
The three men brought civil claims in the High Court, which were initially dismissed by Mitting J ([2017] EWHC 273 (QB)) but allowed by the Court of Appeal ([2018] EWCA Civ 1587). It held that D/ChSup Cook had been the “de facto” prosecutor and had pursued the case when he could not have believed that, tainted with the evidence of Mr Eaton, it was fit to go to the jury and where, on the balance of probabilities, a prosecution would not otherwise have been brought.
The period of detention post-charge had been lengthy, at 682 days, although Mr Rees had previously been in custody following a sentence of seven years for conspiring to pervert the course of justice.
The High Court judge (Mrs Justice Cheema-Grubb), applying Thompson and Hsu v Commissioner of Police of the Metropolis [1997] EWCA Civ 3083; [1998] QB 498, awarded Mr Rees a total of £155,000, broken down as follows:
- £87,000 as a basic award, comprising £27,000 for the distress etc. arising from the charge and £60,000 for loss of liberty;
- £18,000 in aggravated damages;
- £50,000 in exemplary damages, to “mark the court’s denunciation of DCS Cook’s unconstitutional behaviour”. She awarded £150,000 in total, split between the original three claimants (the other two did not seek to appeal).
- Interest on each award from the date of the judgment.
Dismissing the claimant’s appeal that the award of damages – particularly as regards loss of liberty – had been too low, the Court of Appeal accepted that the judge had, properly, “cross-checked” the basic award against awards in personal injury cases (per Thompson at p.512A-D); and had regard to awards for unlawful immigration detention (in particular AXD v Home Office [2016] EWHC 1617 (QB)) but concluded that such cases were not “ideal comparators” [26]-[27]. The award for loss of liberty had not been too low bearing in mind: the “progressively reducing scale” as the period of detention went on (per Thompson at p. 515E-F); the split between awards for distress, loss of liberty and aggravated damages (c.f. AXD where there had been a single basic award); and the facts of AXD, where the claimant faced being returned to a country where he believed he would be tortured and persecuted [31].
Likewise, the Court of Appeal was not persuaded that the judge had been wrong to award interest from the date of her judgment as opposed to the date when no evidence was offered in the Crown Court, or the date of issue.
It was accepted that section 35A of the Senior Courts Act 1981 conferred a discretion to award interest (c.f. in personal injury cases). Moreover, there was a principled basis for withholding interest, namely that in making the awards for damages, the judge had already taken into account all matters – e.g. distress, disappointment, and other damage – leading up to the judgment: Saunders v Edwards [1987] 1 WLR 1116, per Kerr LJ at p. 1129G regarding damages for disappointment and inconvenience, who held “…without purporting to lay down any rigid rules, it is generally better to award a global sum under this head of damages, without the addition of any interest”, and Holtham v Commissioner of Police for the Metropolis (The Times, 28 November 1987), the latter concerning damages for wrongful arrest and false imprisonment, applied [39], [42], [45].
The judge had therefore been entitled not to award interest “on any element of the award for non-pecuniary loss” [43]-[44]. This did not mean that general damages should not be increased to take account of inflation (per Thompson at p. 517E) as the judge had done [41], [45]. Accordingly, the Court of Appeal held at [47]:
“…the better course for judges in cases of this kind will usually be to fix an award of damages both to reflect intervening inflation (having regard to the Thompson criteria) and then also to reflect the fact that the award of damages is being calculated by assessing the situation up to and as at the date of judgment. If that is done there will then be no call for an award of interest under s.35A of the 1981 Act. On the footing that a judge does proceed on that basis then I consider, all the same, that it would be good practice for him or her expressly to state, albeit briefly, that that is indeed the position being adopted.”
The Court of Appeal was satisfied that the judge had taken this course, even though she had not spelt it out [48].
The respondent Commissioner’s cross-appeal against the award of exemplary damages was also dismissed. The prosecution had collapsed in circumstances of notoriety, and the officer who authorised it on a tainted basis had been of a senior rank capable of attracting a maximum award of damages (per Thompson at p. 517C-D) [51]. The judge had considered and rejected the arguments that aggravated damages would suffice, and that there had already been sufficient public scrutiny of the police misconduct. Although it was relevant that the Commissioner had only been vicariously as opposed to personally liable (per Thompson at p. 512H) this was not determinative and would be the case in almost all cases of this kind [51]. The award of £50,000, per claimant, was significantly less than the £50,000 (£91,500 adjusted for inflation) said to be the “absolute maximum” for an award of exemplary damages in Thompson (at p. 517C-D and p. 520A) [52], [54], [55].
Conclusion
The Court of Appeal has clarified that interest will generally not be awarded on general damages in police civil actions, and that judges should explain the approach they have adopted. In upholding a significant level of exemplary damages on the facts of Rees, the Court endorsed the guidance in Thompson (at p.516A-B) that circumstances “can vary dramatically from case to case”, and that the figures outlined in that case were not intended to be applied in a “mechanistic manner” [53].