Damages for malicious prosecution

Executive summary

This was an appeal on damages. The original case was discussed in our legal update which gave very helpful guidelines on assessing quantum in malicious prosecution claims. This case saw appeals on these parts of that judgment:

• damages for loss of liberty
• interest
• exemplary damages.

Background

The full background of the facts is set out in our previous update and need not concern us here. Suffice to say that the claim arose from the claimant’s alleged involvement in a contract killing and interference with a witness by a senior officer. This led to a finding of malicious prosecution and misfeasance in a public office and the award of damages. The claimant challenged the award of damages for loss of liberty and interest and the Commissioner challenged the award of exemplary damages.

The decision

Loss of liberty

It was argued that the judge at first instance had set the damages too low by not taking unlawful immigration detention cases into account as a comparator. The Court of Appeal disagreed — the judge had considered them but did not consider them an ideal comparator. The court agreed because the facts of such cases were very different and they were assessed in a different way. The claimant relied particularly on the case of AXD which would see the award of higher damages if used as a comparator. The Court of Appeal ruled that the final award in the present case was a global one, the facts were different, it was dangerous to use one case as a comparator and the rate of damages always operated on a sliding scale — the longer the detention the lower the rate. The judge had not made an error of law or principle.

Interest 

The judge had awarded interest from the date of judgment. The claimant argued that it should have been awarded from the date no evidence was offered in the Crown Court or the date of issue of the claim form. The Court of Appeal once again disagreed saying that case law was against the claimant. The judge had also plainly taken inflation into account in assessing the damages so it was not unreasonable not to award interest from an earlier date. Damages assess the situation at the date of judgment and interest should be awarded from that date.

Exemplary damages

The Court of Appeal ruled that the award and size of exemplary damages were correct. This was a notorious case with a serious allegation of wrongdoing by a senior officer. The judge had once again considered the global settlement in considering whether an award should be made. The Commissioner’s main challenge was on their size: £150,000 split equally between three defendants. It was argued that in Thompson and Hsu an upper limit of £50,000 (to be adjusted to £91,500 for inflation) had been set. The court ruled that the upper limit was not to be read in a mechanistic way and simply meant there should be an upper limit for individual claimants.

Comment

This is a useful decision although the reader is referred back to the judgment at first instance for the fully stated matters of principle in assessing quantum for malicious prosecution. The decision assists in not allowing the use of arbitrary comparators that would increase damages for loss of liberty. It is also helpful in limiting interest to the date of judgment. Exemplary damages are always going to be paid in serious cases and each claimant can enjoy the upper limit. The decision was also helpful in repeating familiar points of principle — Thompson and Hsu is the starting point, the global settlement is the final touchstone and sliding scales operate on loss of detention.