DSD and NVB v Metropolitan Police
The court considered the relevant factors to be taken into account when determining the appropriate amounts to award by way of "just satisfaction".
High Court (Mr Justice Green)  EWHC 2493
23 July 2014
The court considered the relevant factors to be taken into account when determining the appropriate amounts to award by way of "just satisfaction", based on its earlier liability findings (see our update from February 2014).
Following the judge’s earlier liability determination that systemic and operational failings on the part of the Metropolitan Police (MPS) had infringed the claimants’ Article 3 entitlement to an effective investigation into the rapes and other sexual assaults carried out by John Worboys between 2002 and 2008, the issue of quantum came before the court. The judge handed down a compendious judgement, including lengthy sections covering comparable Strasbourg cases.
The claimants were two of a number of litigants who had sued Worboys, together with his motor insurers. The claim against Worboys had been compromised at an undervalue to reflect his lack of means. The claim against the motor insurers had failed, resulting in an adverse costs’ order which had the effect of reducing the claimants’ net compensation. As a consequence, they had each received £10,000 as against a more likely recovery of £20,000 had they not sued the motor insurers and lost. In addition, each claimant had recovered awards from the Criminal Injuries Compensation Authority (CICA). DSD had been paid £13,500 and NBV £2,000.
The judge observed that a monetary award by way of "just satisfaction" in a human rights’ claim was not based on any application of the "but for" test for compensation in domestic tort-based claims. Awards in human rights’ claims were justified by broad references to "equity". In that regard, parallel awards and remedies had to be taken into account but did not necessarily nullify the need for a further monetary award by way of just satisfaction.
The judge concluded that monetary awards were required in these cases. In NBV’s case, had Worboys been dealt with properly by MPS he would have been apprehended long before he was at large to attack her in July 2007. As a result, the assault itself, as well as post-assault psychological harm, fell into consideration. In DSD’s case, the MPS failings had not been responsible for the attack on her, and it was her post-assault mental suffering for which recompense was sought.
The Commissioner’s contention that no monetary compensation should be awarded because of the compromise reached in the litigation against Worboys was rejected. Not only was a different defendant involved, but the claim had patently been compromised at an undervalue recognising Worboys’ lack of means. However, the diminution of net compensation as a result of the failed litigation against Worboy’s motor insurers would be taken into account. As far as the CICA awards were concerned, they were paid to reflect Worboys’ criminal conduct and, although they were to be taken into account in the same way as the civil compensation, they were separate to any compensation in the present proceedings, which would reflect the MPS’s culpability rather than that of Worboys.
Applying his findings to the two claims in question, the judge awarded DSD £22,250.00. £20,000 was for no pecuniary harm with £2,250 for future therapeutic treatment. The harm caused by MPS failures was "quite discrete" to that by Worboys, including low self-worth as she felt disbelieved by the MPS. Her harm was prolonged and caused periodic clinically recognised depression still requiring treatment. Although DSD claimed that all of the ongoing harm was caused by the MPS the judge accepted MPS’s proposed 50/50 split as "pragmatic and fair" and made his award accordingly.
In the case of NBV, the award was £19,000: £17,000 for the rape (of which MPS failings were causative) and post-rape psychological harm and £2,000 for future treatment costs. In part, NBV had already been compensated by her claim against Worboys and her CICA payment. They were taken into account but did not extinguish the Article 3 claim, although the greater amount of overlap accounted for the slightly lower award in her case.
In relation to each award, the judge effectively went through a checklist of material considerations including:
- the nature of the failing (operational and/or systemic);
- the overall context of the MPS failings;
- any question of bad faith;
- the range of comparable awards based on Strasbourg cases;
- the receipt of other payments;
- the concepts of ‘totality’ and ‘modesty’
Totality involved standing back from the assessment of individual factors to see whether the overall award looked reasonable. As far as modesty was concerned, the judge observed:
"The exhortation to modesty is, in truth, more a reflection of the principle that the Strasbourg Court has long endorsed which is that the paramount object of the law is to bring violations to an end and compensation is a secondary factor. It is manifestly not the intention of the law to create a "get rich quick" litigation culture."
This detailed judgment is essential reading for practitioners operating in this area. Of particular interest is the judge’s identification of the range of awards for relevant Article 3 violations, based on consideration of comparable Strasbourg cases. The range can be summarised as follows:
1. Nominal or low award – Euros £1,000 to £8,000.
2. Routine Article 3 violation with no serious long term mental issues or unusual aggravating factors – Euros £8,000 to £20,000
3. Article 3 violation with aggravating factors such as medical evidence, recognised medical condition/s, direct causation by the state, long term or endemic state failings and morally reprehensible conduct – Euros £20,000 to £100,000+.
Set against the context of those ranges, the claimants’ just satisfaction awards in these cases can be seen to sit roughly at the point where routine violations become more serious.
Finally, it is understood that an appeal against the judge’s findings on liability is still under consideration. Permission was granted. However, MPS have confirmed that no appeal against these quantum awards will be included, nor will any attempt be made not to pay compensation to the claimants even if any liability appeal succeeds. Effectively the claimants’ litigation is at an end.
For further information about Weightmans or to discuss any of the issues in this update, please contact Nick Peel, Partner on 0151 242 9453 or email email@example.com.