Rees and Others v Commissioner of Police of the Metropolis [2019] EWHC 2120 (Admin) QBD (Admin) (Cheema-Grubb J)

Executive summary

This case assessed quantum in a malicious prosecution claim. It revisited the guidelines given by the Court of Appeal in Thompson and Hsu v Commissioner of Police for the Metropolis [1998] QB 498 and gave practical guidance upon their application.

Background

In April 2008 the three claimants were charged with murder following an alleged contract killing in a London pub car park in March 1987. In February 2011 Maddison J held that the evidence of a key prosecution witness, Gary Eaton, should be excluded. It was found that the Senior Investigating Officer, Detective Chief Superintendent David Cook had compromised the integrity of the evidence Eaton proposed to give by allowing extensive contact with the witness in contravention of express agreements and accepted procedures. Eaton’s evidence, at first innocuous, expanded to included his presence at the scene of the murder and his knowledge of the claimants being in the vicinity. In March 2011 the prosecution was discontinued. The claimants succeeded in their claim of malicious prosecution and misfeasance in a public office. There would have been insufficient evidence without the evidence of Eaton. DCS Cook had knowingly suborned the evidence of Eaton and falsely presented him at the murder scene. The court was then required to assess quantum.

The decision

The claimants claimed damages for distress, loss of liberty, aggravated damages and exemplary damages. The Court noted that the starting point was the guidance in Thompson and Hsu. The total figure for damages should not exceed what the court considers to be fair compensation for the injury suffered. Aggravating features leading to an award of aggravated damages could include humiliating circumstances at the time of arrest and the conduct of those responsible for the arrest and prosecution. Exemplary damages are exceptional and should only be awarded where basic and aggravated damages are insufficient .

Starting with distress, the Judge considered that the pleading claiming ‘injury, loss and damage’ was wide enough to include an element of reputational loss. Reputational damage was plainly less for those with criminal antecedents. The claimants had criminal records but not for murder and the grave allegation of murder carried notoriety and stigma for them and the risk of a mandatory life sentence. The Judge therefore reduced the amount of damages but only modestly (by 10%) because of the gravity of the charge. The Judge also rejected the Defendant’s claim that damages should be reduced because there had been no trial. There had been a lengthy voir dire (a preliminary investigation into the truth or admissibility of witness evidence) where the evidence of Eaton was excluded. The judge also considered that the gravity of the charge was far more serious than the offending alleged in Thompson and Hsu. She therefore proposed a 50% increase on the top end of the basic damages in that case. Taking all of this into account the Judge awarded a basic element of £27,000 for distress caused to each claimant.

Moving to loss of liberty the Court recognised that a separate award should be made. It was noted that the first two claimants were detained post charge and because of the malicious prosecution for 682 days. The third claimant was already in custody and only nine days at the end of his detention were caused by the malicious prosecution. The Court preferred a global figure to a multiple based upon a daily rate or tariff. They also recognised that there was a tapering effect, so the longer the loss of liberty the less incremental harm is recognised. The degree of loss of liberty impacted on damages, so the fact that the first two claimants were held as Category A prisoners for five months increased damages. Loss of liberty claims are enhanced by the initial shock of detention, something missing in all these cases since all three claimants were initially lawfully arrested pre charge.

It was also noted that this was not the first period in detention for the claimants. The Judge also said that a cross check with comparable personal injury cases was necessary. The most helpful were the JSB guidelines for moderately severe PTSD which were £20,000 to £50,000. Retuning once again to Thompson the Judge noted that the period between charge and release was 3 years, a 50% increase on Thompson. Taking all of this into account the Judge awarded the first two claimants £60,000 for loss of liberty. The third claimant (who was already in custody) was awarded £9,000.

The court also considered that an award of aggravated damages should be made. The claimants’ characters should be taken into account. The Judge reduced the awards accordingly by 10% and would have reduced them more if the claimants had convictions for serious offences of violence. Conduct of those responsible was a relevant factor but the Court held that damages should not be increased because the civil action had been defended. That was not the same as justifying DCS Cook’s corruption. All three claimants were awarded aggravated damages of £18,000.

Exemplary damages were also awarded. The Court recognised the fact that this was a matter of public importance and a gross breach of public trust. Exemplary damages are payable as a separate award where there is a need for public condemnation. The award in this case was to highlight the egregious and shameful behaviour of a senior police officer, DCS Cook, and to record the public condemnation of such behaviour. Exemplary damages of £50,000 were awarded to each claimant.

In summary the first and second claimants were awarded a total of £155,000 and the third claimant a total of £104,000.

Comment

This is a helpful decision because it gives practical guidance on how to assess quantum in malicious prosecution claims. It can also act as a point of reference when discussing those claims. As ever the starting point is Thompson but this case introduced some other helpful guidance. These cases will all turn upon their facts, but the Court introduced some reasoning that will always be relevant. The character and antecedents of the claimant are crucial and in this case were taken to reduce damages for distress, loss of liberty and aggravated damages.

Further, contrary to the perception of some claimant solicitors, defending a civil claim is not a ground for awarding aggravated damages. The behaviour of the Defendant was also relevant and the behaviour of DCS Cook led to an award of exemplary damages. It should also be noted that no separate award was made for misfeasance in a public office despite a finding of liability.