|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thompson v Commissioner of Police of the Metropolis  EWCA Civ 3083 (19 February 1997)
Cite as:  QB 498,  2 AER 762,  EWCA Civ 3083,  3 WLR 403,  2 All ER 762, (1998) 10 Admin LR 363
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report:  QB 498] [Buy ICLR report:  3 WLR 403] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE QUENTIN EDWARDS QC)
Wednesday 19 February 1997
B e f o r e :
LORD JUSTICE AULD
SIR BRIAN NEILL
| CLAUDETTE PAMELA THOMPSON
|- v -
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
|THE COMMISSIONER OF POLICE OF THE METROPOLIS
MR B EMERSON (Instructed by B M Birnberg & Co. London, NW1 7HJ) appeared on behalf of the Respondent, Thompson.
MR D PANNICK QC and MR N AINLEY (Instructed by D S Hamilton, New Scotland Yard, London SW1H 0BG and Bircham & Co, London SW) appeared on behalf of the Appellant.
MR E FITZGERALD QC and MR B EMERSON (Instructed by Christian Fisher, London, WC1A 1LY) appeared on behalf of the Respondent, Hsu.
Crown Copyright ©
LORD WOOLF, MR: This is the judgment of the court.
In a number of recent cases members of the public have been awarded very large sums of exemplary damages by juries against the Commissioner of Police for the Metropolis for unlawful conduct towards them by the police. As a result these two appeals have been brought by the Commissioner. The intention is to clarify the directions which a judge should include in a summing up to assist the jury as to the amount of damages, particularly exemplary damages, which it is appropriate for them to award a plaintiff who is successful in this type of action. As similar appeals are pending any guidance given by us on this subject should influence the outcome of those appeals in addition to providing guidance for the future.
Both appeals are in relation to awards made by juries at trials over which His Honour Judge Quentin Edwards Q. C. presided at the Central London County Court. The directions as to damages which he gave to the jury in both cases were similar. In each case he heard submissions from counsel for both parties as to the nature of the directions which he should give prior to summing up. It is accepted by the Commissioner that the directions given to the jury adequately reflected the submissions made by counsel on his behalf.
On the existing state of the authorities the directions to the juries on the issues as to damages were adequate. The criticisms which Mr Pannick Q.C., who appeared in these appeals on behalf of the Commissioner, makes of the summing up only have substance if , for the reasons to be explained later in this judgement, it is now open to judges to give juries in this class of action more detailed guidance as to damages than has been the practice hitherto.
As the directions which the juries were given were satisfactorily judged by the standards set by the existing practice, the approach we propose to adopt is that the Commissioner is only entitled to succeed on either appeal if he can establish that the damages which the juries awarded were wholly erroneous or disproportionate to the damage which the respective plaintiff. is entitled to recover. The damages which were awarded to Mr Hsu were £220,000, of which £20,000 were compensatory, including aggravated damages, and £20O,000 exemplary damages. The damages were for wrongful arrest, false imprisonment and assault. In the case of Miss Thompson the jury awarded £1,500 as compensatory, including, aggravated, damages and £50,000 exemplary damages. Miss Thompson cross appeals as to the award of compensatory damages.
Mr Pannick accepts that in determining these appeals, the facts must be approached on the assumption that both juries rejected his client's witnesses' version of events and accepted that of the Plaintiffs and their witnesses when they were in conflict. Adopting that approach we examined the facts in some detail and are very conscious having done so that in both cases, on the juries' verdicts, the conduct of the police officers involved can only be described as outrageous and totally inconsistent with their responsibilities.
Outline of the facts in the case of Mr Hsu
The incident which triggered the events about which Mr Hsu complains arose because a woman who was previously a lodger occupying a room at his home complained to the police that Mr Hsu was wrongfully preventing her from collecting her belongings from his home. Two officers therefore attended at the house on the evening of the 29th July 1992. They demanded entry but this was refused by Mr Hsu because they were not able to produce any document which gave them authority to do so. Subsequently three officers tried to force their way into the house. When Mr Hsu attempted to prevent this he was arrested forcefully. His arms were twisted behind his back, he was placed in a head lock, he was punched in the face, struck across the face with a set of keys and kicked in the back (he later passed blood in his urine). He was also racially abused. Part of this conduct was observed by his neighbours and the former lodger and her father. He had a most uncomfortable journey to the police station where he was placed in a cell for about one and a quarter hours. He was refused police transport home, although he had nothing on his feet. He was taken home by a friend only to find that in his absence his house had been entered and in addition to the belongings of the lodger being removed some of his own property was missing.
The police's justification for the arrest, which was rejected by the jury, was that Mr. Hsu had pushed a police officer in the chest. This allegation must on the jury's verdict have been deliberately falsely recorded in the notebooks of the officers so that the entries would be used to support their evidence in the court below.
Mr Hsu sustained cuts and bruises and a stiff neck. He had a predisposition to depression and was socially and culturally isolated and three years after the incident he was still suffering some symptoms of a post traumatic distress disorder which would be alleviated by the disposal of this litigation.
Outline of the facts in the case of Miss Thompson
The events relating to the appeal by Miss Thompson start when she was lawfully arrested on the 28th September 1991 at about 5 a.m. in connection with a drink and driving offence to which she pleaded guilty on 23 April 1992. She would have been released in the normal way on bail at about 7am but instead she was granted bail by the magistrates court at 9. 18 a.m.
Matters went wrong in the case of Miss Thompson when it was decided to place her in a cell. Considerable and unnecessary force was used in doing this some 4 or 5 officers were involved , 2 of whom were women officers. In the course of this part of her hair was pulled out and, in Miss Thompson's own words, "it was like I was being abused physically and sexually by all of them". As a result of this assault, in addition to the loss of hair, Miss Thompson was bruised and had pain in the back and hands.
The police' s case, which was rejected by the jury, was that the force was only used after Miss Thompson had refused to be searched, that during the struggle she bit one of the officers fingers causing it to bleed and assaulted other officers. As a result she was charged with assault occasioning actual bodily harm. On the 23rd April 1992 (7 months after the arrest) she was acquitted of the lesser offence which had been substituted of assaulting the officer in the execution of his duty. In his powerful submissions on Miss Thompson's behalf Mr Emmerson stresses that this malicious prosecution involved the fabricating of a deliberately false case of the injury to the officer's finger and two officers of the rank of inspector together with other officers giving false evidence. Miss Thompson was subjected to the ordeal of having to listen to this false evidence being used against her. A consequence of the false case was that on the day of her arrest Miss Thompson was taken to the magistrates' court in handcuffs. She was also deprived of her liberty during the criminal trial.
The Circumstances In Which The Court of Appeal Can Interfere With The Jury's Assessment of Damages
The Court of Appeal plays a significant role in regulating the amount of damages awarded by first instance courts by issuing guidelines. This is particularly true in the case of damages for personal injuries. In Wright v British Railway Board  2 AC 773 at p 784/5 Lord Diplock referred to this role, saying:
"it is an important function of the Court of Appeal to lay down guidelines
.....The purpose of such guidelines is that they should be simple and easy to apply though broad enough to permit allowances to be made for special features of individual cases....... Guidelines laid down by an appellate court are addressed directly to judges who try personal injury actions; but confidence that judges will apply them means that all those who are engaged in settling out of court the many thousands of claims that never reach the stage of litigation at all, or if they do, do not proceed as far as trial, will know very broadly speaking what the claim is likely to be worth....."
"The Court of Appeal, with its considerable case-load of appeals in personal injury actions and the relatively recent experience of many of its members in trying such cases themselves, is, generally speaking, the tribunal best qualified to set the guidelines for judges currently trying such actions, particularly as respects non-economic loss; and this House should hesitate before deciding to depart from them, particularly if the departure will make the guideline less general in its applicability or less simple to apply.
A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or makes trials more lengthy or expensive or settlements more difficult to reach. But though guidelines should be altered if circumstances relevant to the particular guideline change, too frequent alteration deprives them of their usefulness in providing a reasonable degree of predictability in the litigious process and so facilitating settlement of claims without going to trial.
As regards assessment of damages for non-economic loss in personal injury cases, the Court of Appeal creates the guidelines as to the appropriate conventional figure by increasing or reducing awards of damages made by judges in individual cases for various common kinds of injuries. Thus so called "brackets" are established, broad enough to make allowance for circumstances which make the deprivation suffered by an individual plaintiff in consequence of the particular kind of injury greater or less than in the general run of cases, yet clear enough to reduce the unpredictability of what is likely to be the most important factor in arriving at settlement of claims."
Lord Diplock was referring to the position when the trial was by judge alone. Turning to trials before a judge and jury, there are only two situations in which the Court of Appeal can normally interfere with an award of damages by a jury. The first is where the jury's award is totally disproportionate to the subject matter of the award or is otherwise wholly erroneous. Different expressions appear in the authorities to describe what constitutes a wholly erroneous award, but they are all intended to indicate that the award must be clearly wrong and that there is a heavy onus on an appellant who alleges that an award should be set aside on this ground. The second situation is where the summing up is defective in a way which constitutes a misdirection unless the misdirection does not result in any miscarriage of justice. In general litigants are entitled to have an adequate direction given to the jury as to the issues which the jury have to decide, the principles of law which are relevant to those issues, an indication of the respective cases of the parties on those issues and, when appropriate, the effect in law of evidence which has been given. This general approach applies equally to issues as to damages as it does to issues as to liability.
The practice as to what directions judges are required or permitted to give juries, as to damages over the years has changed from time to time.
In the past the amount of guidance which could be given for this purpose was extremely limited. The reason for this appears clearly from a passage of the speech of Lord Hailsham in Broome v Cassel l  AC 1027 at 1065/6:
"The first, and paramount consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel damages including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large .... that no sensible jury properly directed could have reached the conclusion ... The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933 ... It may very well be that, on the whole, judges, and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matter than judges."
The approach to jury trials reflected by this passage from the speech of Lord Hailsham is to be contrasted with the approach which has developed where a judge alone has the task of assessing damages. At one time it was not the practice for counsel to give a judge any direct assistance as to what would be the correct bracket for damages unless specifically asked by the judge to do so even in the case of personal injuries. However by the time that Broome was decided this was happening regularly and since then it has continued to happen as a matter of routine. The present position is underlined by the publication of three editions since 1992 of the Judicial Studies Board's useful Guidelines for the Assessment of General Damages in Personal Injuries Cases and other publications which are used both by the parties' legal advisers and the judge to assist them to reach an accurate figure for damages. In the context of damages for defamation , the contrast as to what could be expected to be the position if they were to be tried by a judge alone as compared with what has happened in fact because they are usually tried by a jury was commented upon in the judgement of the court given by Sir Thomas Bingham in John v M. G. N. Ltd.  3WLR 593 at p. 608C/9A when he said:
"There could never be any precise, arithmetical formula to govern the assessment of general damages in defamation, but if such cases were routinely tried by judges sitting alone there would no doubt emerge a more or less coherent framework of awards which would, while recognising the particular features of particular cases, ensure that broadly comparable cases led to broadly comparable awards. This is what has happened in the field of personal injuries since these ceased to be the subject of trial by jury and became, in practice, the exclusive preserve of judges. There may be even greater factual diversity in defamation than in personal injury cases, but this is something of which the framework would take account.
The survival of jury trial in defamation actions has inhibited a similar development in this field. Respect for the constitutional role of the jury in such actions, and judicial reluctance to intrude into the area of decision-making reserved to the jury, have traditionally led judges presiding over defamation trials with juries to confine their jury directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages in the particular case. While some distinguished judges (e.g. Diplock LJ in McCarey v Associated Newspapers Ltd (No 2)  2 QB 86 at 109) have considered that juries should be informed in broad terms of the conventional level of awards for personal injuries, not by way of analogy but as a check on the reasonableness of an award which the jury are considering, this has not been an authoritative view (see Cassell & Co Ltd v Broome  AC 1027 at 1071). Even in the rare case when a personal injury claim was to be tried by a jury it was thought inappropriate that a jury should be informed of the conventional level of awards (Ward v James  1 QB 273, 302), a striking departure from the modern practice when judges are sitting alone. Whatever the theoretical attractions of this approach, its practical disadvantages have become ever more manifest. A series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism of the procedures leading to such awards. This has not been the fault of the juries. Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd. While the Court of Appeal reaffirmed the fundamental soundness of the traditional approach in Sutcliffe v Pressdram Ltd  1 QB 153, the court did in that case recommend trial judges to draw the attention of juries to the purchasing power of the award they were minded to make, and of the income it would produce: see 178-179, 185-186, 190). This was thereafter done, and juries were reminded of the cost of buying a motor car, or a holiday, or a house. But judges were still constrained by authority from steering the jury towards any particular level of award."
The reason why it was sensible for appellate courts not to interfere with the awards of damages by juries prior to 1990 was pointed out by Lord Reid in Broome in a passage at p.1087 where he makes clear his distaste as to juries awarding exemplary damages. He pointed out that at that time there was "no effective appeal against sentence. All that a reviewing court can do is to quash the jury's decision if it thinks the punishment awarded is more than any twelve reasonable men could award. The court cannot substitute its own award. The punishment must then be decided by another jury and if they too award heavy punishment the court is virtually powerless".
The position described by Lord Reid was fundamentally changed in 1990 by section 8 of the Court and Legal Services Act of that year and Order 59 r.11(4) of the R.S.C. which gave the Court of Appeal jurisdiction where it had "power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate........(to ) substitute for the sum awarded by the jury such sum as appears to the court to be proper...." The effect that this section had in relation to damages in actions for defamation was considered in Rantzen v Mirror Group Newspapers  Q.B. 670. In the judgment of the court Neill L. J. said at p.692;
"How then should the Court of Appeal interpret its power to order a new trial on the ground that the damages awarded by the jury were excessive? How is the word "excessive " in section 8(1) of the Act of 1990 to be interpreted ? After careful consideration we have come to the conclusion that we must interpret our power so as to give proper weight to the guidance given by the House of Lords and by the European Court of Human Rights."
This was a reference to decisions concerned with issues as to freedom of speech, one of which Neill L. J. then cites. Having done so he continues:
"We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?'"
Lord Justice Neill then turned to consider the question of the guidance which should be given to juries in defamation cases and made a number of points which are relevant to the issues being considered on this appeal (at p. 693). The first was that juries themselves are concerned as to the lack of guidance. The second was that what guidance is given is a matter to which the rules of precedent do not apply, although "of course good reasons must be found before departing from an established practice". He then referred to the different approach to the citation of authorities in personal injury cases and how it had changed, drawing attention to the fact that in Wright v British Railways Board  2A.C. 773 at p. 784/5 Lord Diplock had made the comments previously cited as to the responsibility of the Court of Appeal in cases tried by a judge. He then indicated that the court was not persuaded "that at the present time it would be right to allow references to be made to awards by juries in previous cases". However in relation to awards of the Court of Appeal he said:
"Awards made by the Court of Appeal in the exercise of its powers under section 8 of the Act of 1990 and Ord.59 r.11(4) stand on a different footing. It seems to us it must have been the intention of the framers of the Act of 1990 that over a period of time awards made by the Court of Appeal would provide a corpus to which reference could be made in subsequent cases. Any risk of over citation would have to be controlled by the trial judge......"(p.694 B)
The court returned to the same subject in John. The court said (p611):
"Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury. No other result can be accepted as just. But there is continuing evidence of libel awards in sums which appear so large as to bear no relation to the ordinary values of life. This is most obviously unjust to defendants. But it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries. We are persuaded by the arguments we have heard that the subject should be reconsidered. This is not a field in which we are bound by previous authority (Sutcliffe v Pressdram Ltd.  1 Q.B. 153, 178)."
The Court of Appeal then went on to say that juries could properly in defamation cases be given two further forms of guidance. First they could be informed of the amount of damages regarded as appropriate in personal injury cases for particular injuries. A reason for this being that, in the words of the Master of the Rolls it is "offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps, by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable". Secondly and more importantly counsel and the judge were in future to be able to indicate to the jury what they respectively considered was the correct figure to award for damages.
The cases which we have been examining are defamation cases and it does not follow that what was said in the context of an action for defamation can be directly applied to the different class of cases now being considered. This is especially true because of the reliance in Rantzen on the involvement of freedom of speech. The principles applicable to freedom of speech have no relevance in actions against the police and so, as Mr Fitzgerald QC on behalf of Mr. HSU submitted the Rantzen approach could be distinguished. However we do not consider that it would be correct to do this. Once section 8 of 1990 Act has been given an interpretation as to one category of cases that interpretation must apply across the board. It is difficult to see how the same words can have different meanings depending upon the type of action to which they are being applied.
Apart from the freedom of speech aspect of defamation, it can be said that there is in fact more reason to assist juries in actions for false imprisonment. Part of the claim can have, as in both of these appeals, a personal injury element which makes the experience in ordinary personal injury cases directly relevant. A difference in the awards for compensation for the same injury, ignoring any question of aggravation, cannot be justified because the award is by a jury in a small minority of cases (the false imprisonment cases) while in the majority of cases (the other personal injury cases) the award is by a judge. If this court would intervene in one situation it should do so in the other. There is no justification for two tariffs. Furthermore even where what is being calculated is the proper compensation for loss of liberty or the damaging effect of a malicious prosecution the analogy with personal injuries is closer than it is in the case of defamation. The compensation is for something which is akin to pain and suffering. There is also recognition today that the uncertainty produced by the lack of consistency as to the damages which will be awarded in cases of this sort results in increased costs.
It is when the jury have to consider whether there should be an award of aggravated damages as additional compensation that the award in this class of case is more analogous to that in defamation proceedings. As the Law Commission point out in their admirable consultative paper Aggravated, Exemplary and Restitutionary Damages (1993) (Consultation Paper No. 132) para.2.17 et sequ. there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated. This injury which is made worse for the Plaintiff because it is more difficult to excuse when the malicious motives, spite or arrogance on the part of the police.(Rookes v Barnard A.C.1129 , Lord Devlin 1221 et sequ).
It is when the jury make an award of exemplary damages that the similarity of this class of action with defamation is closest. However a factor justifying the award of exemplary damages which in defamation actions makes consistency in the proper amount to award less likely is that often the award is to prevent a newspaper profiting from the libel by increasing its circulation. This element of profiting from your tort is almost invariably absent from this class of action. In addition, as the defendant is usually a chief officer of police, the personality of the defendant will not usually be significant in determining what the appropriate level of punitive damages should be. While the conduct calling for the award of exemplary damages may differ it is to be hoped that it will be rare indeed for the most senior officers in the force to be in any way implicated.
The fact that the defendant is a Chief Officer of Police also means that here exemplary damages should have a lesser role to play. Even if the use of civil proceedings to punish a defendant can in some circumstances be justified it is more difficult to justify the award where the defendant and the person responsible for meeting any award is not the wrongdoer, but his "employer". While it is possible that a Chief Constable could bear a responsibility for what has happened, due to his failure to exercise proper control, the instances when this is alleged to have occurred should not be frequent. There is also a greater problem of awarding exemplary as well as aggravated damages in the class of action under consideration because the very circumstances which will justify the award of aggravated damages are probably the same as those which make it possible to award exemplary damages. This accentuates the risk of a double counting. At least in defamation proceedings there is the additional factor of the defendant profiting from the libel which provides the independent justification for the award of exemplary damages.
We have already referred to what was said in his judgement in John by the then Master of the Rolls as to the effect of excessive awards of damages in defamation cases on the public perception of civil justice. In this category of case the reaction could understandably be stronger since the excessive awards are being paid out of public money (though police forces other than the Metropolitan do take out insurance) and could well result in a reduction in the resources of the police available to be used for activities which would benefit the public. The Law Commission's Consultation Paper to which we have already made reference considers whether the power to award aggravated and exemplary damages should be abolished. The Law Commission's provisional views expressed in their consultation paper is that the power should be retained. However it is counterproductive to give juries an impossible task. It must at present be very difficult for a jury to understand the distinction between aggravated and exemplary damages when there is such a substantial overlap between the factors which provide the sole justification for both awards. The extent to which juries fluctuate in the awards which they make (which the present appeals demonstrate) indicates the difficulties which they have. On the other hand there are arguments which can be advanced to justify the retention of the use of juries in this area of litigation. Very difficult issues of credibility will often have to be resolved. It is desirable for these to be determined by the plaintiffs' fellow citizens rather than judges, who like the police are concerned in maintaining law and order. Similarly the jury because of their composition, are a body which is peculiarly suited to make the final assessment of damages, including deciding whether aggravated or exemplary damages are called for in this area of litigation and for the jury to have these important tasks is an important safeguard of the liberty of the individual citizen.
As the Court of Appeal has usually the responsibility for determining the level of damages when it allows an appeal its decisions should indicate what is the appropriate level for damages in these actions. A standard will be established with which jury awards can be compared. This will make it easier to determine whether or not the sum which the jury has awarded is excessive. To not provide juries with sufficient guidance to enable them to approach damages on similar lines to those which this Court will adopt will mean the number of occasions this Court will be called on to intervene will be undesirably frequent. This will be disadvantageous to the parties because it will result in increased costs and uncertainty. It will also have adverse consequences for the reputation of the jury system. It could be instrumental in bringing about its demise.
This being the situation it is not surprising that in a case against the police following John, Stuart Smith L.J.in Scotland v Commissioner of Police for the Metropolis (19 January 1996) (unreported) felt that it would be proper for the judge, after discussing with counsel in the absence of the jury what are the appropriate figures in the Judicial Studies Board 's guidance, to indicate these figures to the jury. Stuart Smith LJ considers, and we would certainly agree, that the judge should at the same time indicate to the jury that everything depended on their assessment of the gravity of the injuries and that they were not bound by the bracket which could in any event be a wide one.
In his submissions Mr Emmerson, who has considerable experience of this area of litigation, submitted, that the present practice does not inhibit settlement and referred to a number of cases in which settlements have taken place. We of course attach weight to this submission but feel it does not mean the present position is satisfactory. The problem is what is the basis of these settlements. Are they at a sum that discounts the wide range of uncertainty as to what figure will be selected by the jury? We have also been referred to a number of cases in which juries have made awards, both cases which are under appeal and cases which are not and the variations in the range of figures which are covered is striking. The variations disclose no logical pattern. There are also examples in the appendix to Clayton & Tomlinson, Civil Actions Against the Police, 1992, 2nd ed. of which the same is true (the figures have to be updated for inflation). These examples confirm our impression that a more structured approach to the guidance given to juries in these action is now overdue.
The Guidance that should be given
While there is no formula which is appropriate for all cases and the precise form of a summing-up is very much a matter within the discretion of the trial Judge, it is suggested that in many cases it will be convenient to include in a summing-up on the issue of damages additional directions on the following lines. As we mention later in this judgment we think it may often be wise to take the jury's verdict on liability before they receive directions as to quantum.
(1) It should be explained to the jury that if they find in the plaintiff's favour the only remedy which they have power to grant is an award of damages. Save in exceptional situations such damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.
(2) As the law stands at present compensatory damages are of two types. (a) Ordinary damages which we would suggest should be described as basic, and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant's conduct which justify the award of aggravated damages. [We would add that in the rare case where special damages are claimed in respect of some specific pecuniary loss this claim should be explained separately].
(3) The jury should be told that the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff. But they should be provided with an appropriate bracket to use as a starting point. The Judge will be responsible for determining the bracket, and we envisage that in the ordinary way the Judge will have heard submissions on the matter from counsel in the absence of the jury (as suggested by Stuart Smith LJ in Scotland). Though this is not what was proposed in the case of a defamation action in John, submissions by counsel in the absence of the jury are likely to have advantages because of the resemblance between the sum to be awarded in false imprisonment cases and ordinary personal injury cases, and because a greater number of precedents may be cited in this class of case than in a defamation action. We therefore think it would be better for the debate to take place in the absence of the jury.
(4) In a straightforward case of wrongful arrest and imprisonment or malicious prosecution the jury should be informed of the approximate figure to be taken as the correct starting point for basic damages for the actual loss of liberty or for the wrongful prosecution, and also given an approximate ceiling figure. It should be explained that these are no more than guideline figures based on the Judge's experience and on the awards in other cases and the actual figure is one on which they must decide.
(5) In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for twenty four hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale. [These figures are lower than those mentioned by the Court of Appeal of Northern Ireland in Oscar v Chief Constable of The Royal Ulster Constabulary (unreported 1993) where a figure of about £600 per hour was thought to be appropriate for the first 12 hours. That case, however only involved unlawful detention for two periods of 30 minutes in respect of which the Court of Appeal of Northern Ireland awarded £300 for the first period and £200 for the second period. On the other hand the approach is substantially more generous than that adopted by this court in the unusual case of Cumber v Hoddinott (unreported 23 January 1995) in which this court awarded £350 global damages where the jury had awarded no compensatory damages and £50 exemplary damages.]
(6) In the case of malicious prosecution the figure should start at about £2,000 and for prosecution continuing for as long as two years, the case being taken to the Crown Court, an award of about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this will justify a larger award to reflect the longer period during which the plaintiff has been in peril and has been caused distress.
(7) The figures which we have identified so far are provided to assist the Judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can very dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner.
(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution.. Aggravating features can also include the way the litigation and trial are conducted. [The aggravating features listed take account of the passages in the speech of Lord Reid in the case of Broome at 1085 and Pearson LJ in McCarey v Associated Newspapers Limited  1 QB 86 at 104.
(9) The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. [This is contrary to the present practice but in our view will result in greater transparency as to the make up of the award].
(10) We consider that where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000. We do not think it is possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case. In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.
(11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.
(12) Finally the jury should be told in a case where exemplary damages are claimed and the Judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. it should be explained to the jury:
(a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view;
(b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants.
(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers].
(d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose.
(13) Where exemplary damages are appropriate they are unlikely to be less than £5,000. Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified and the figure of £50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent.
(14) In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury consider that this conduct caused or contributed to the behaviour complained of.
The figures given will of course require adjusting in the future for inflation. We appreciate that the guideline figures depart from the figures frequently awarded by juries at the present time. However they are designed to establish some relationship between the figures awarded in this area and those awarded for personal injuries. In giving guidance for aggravated damages we have attached importance to the fact that they are intended to be compensatory and not punitive although the same circumstances may justify punishment.
In the case of exemplary damages we have taken into account the fact that the action is normally brought against the chief officer of police and the damages are paid out of police funds for what is usually a vicarious liability for the acts of his officers in relation to which he is a joint tortfeasor.(see now s88 Police Act 1996). In these circumstances it appears to us wholly inappropriate to take into account the means of the individual officers except where the action is brought against the individual tortfeasor. This would raise a complication in the event of the chief officer seeking an indemnity or contribution as to his liability from a member of his force. It is our view if this situation does arise it should be resolved by the court exercising its power under section 2(1) or (2)of the Civil Liability (Contribution) Act 1978 to order that the exemplary damages should not be reimbursed in full or at all if they are disproportionate to the officer's means.
In deciding upon what should be treated as the upper limits for exemplary damages we have selected a figure which is sufficiently substantial to make it clear that there has been conduct of a nature which warrants serious civil punishment and indicates the jury's vigorous disapproval of what has occurred but at the same time recognises that the plaintiff is the recipient of a windfall in relation to exemplary damages. As punishment is the primary objective in this class of case it is more difficult to tie the amount of exemplary damages to the award of compensatory damages, including aggravated. However in many cases it could prove a useful check subject to the upper limits we have identified if it is accepted that it will be unusual for the exemplary damages to produce a result of more than three times the basic damages being awarded (as the total of the basic aggravated and exemplary damages) except again where the basic damages are.
Mr Pannick submitted that the jury should be invited to take into account the disciplinary procedures which are available as against the officers when considering whether the case is one which warrants the award of exemplary damages. In our view this should only be done where there is clear evidence that such proceedings are intended to be taken in the event of liability being established and that there is at least a strong possibility of the proceedings succeeding.
We are also not in favour of plaintiffs' non co-operation with the complaints procedure reducing an award of damages. It is highly desirable that complainants should cooperate in disciplinary investigations but they are not legally obliged to do so If they are not sufficiently public spirited to do so, this cannot be held against them in law so as to reduce the amount payable when assessing the compensation to which they are entitled. Exemplary damages are awarded so as to punish the defendant. We have already referred to the circumstances in which the existence of disciplinary proceedings is relevant in determining whether to make any award of exemplary damages. If the jury decide an award is necessary then the amount is assessed on a consideration of the conduct for which the defendants are responsible which makes the award of exemplary damages appropriate. The plaintiff's conduct is here relevant only if it was a cause of the offending behaviour.
Where a false defence is persisted in this can justify an increase in the aggravated or exemplary damages (see Marks v Chief Constable of Greater Manchester unreported 27 November 1991) but as this will almost invariably be the consequence of an unsuccessful defence, the guidance as to figures we have given takes this into account. If a malicious prosecution results in a conviction which is only set aside on an appeal this would justify a larger award.
In many cases it will be convenient for the jury's verdict on liability to be taken before they receive directions as to quantum.
The Correctness of the awards in these cases.
In the case of Mr Hsu: The award of £ 20,000 as compensation including aggravated damages is not a figure with which the court would interfere. Beside the physical injuries he sustained, the consequences for Mr Hsu have been more serious than they would otherwise have been because of his underlying condition. It is in relation to the exemplary damages that the appeal obviously must succeed because of the approach already indicated. There was unprovoked violence in connection with an arrest which took place at Mr Hsu's home. There were a number of officers involved. However the whole incident was over in a matter of hours and there is already an award of aggravated damages which has to be taken into account. The figure we regard as appropriate is £15,000. So Mr Hsu recovers £35,000 in total. This should suffice to demonstrate publicly the strongest disapproval of what occurred and make it clear to the Commissioner and his force that conduct of this nature will not be tolerated by the courts.
In the case of Miss Thompson: Naturally, although cross appealing, Mr Emmerson is primarily concerned with the overall award. We however regard it as preferable for us to set out our assessment under each head. In doing so we do not find that the unreported cases relied on by Mr Emerson provide much assistance. Nonetheless we do consider the compensatory damages in this case of £1,500 totally out of line. We bear in mind this lady's initial arrest was lawful but we consider for the subsequent unlawful conduct continuing for seven months we would award £10,000 plus a like sum of aggravated damages and £25,000 exemplary damages. (Total £45,000) This is marginally less than the total award of the jury but when considering whether to allow the appeal we are concerned with the total award. We will not therefore allow the Commissioners appeal as the jury retain a margin of appreciation so this Court will not intervene unless the difference as to amount is greater than this.
As to the other appeals which are awaiting determination, we draw the parties attention to the arrangements which can now be made by this court for assistance by way of A.D.R. We would hope that the guidance we have provided should enable the appeals to be settled without difficulty by the parties themselves , but if they are not we would hope that the parties would seek the assistance of ADR from the Court before proceeding with the appeals. If they do not this may be an appropriate matter to be considered when determining the order for costs which should be made.
Finally we would like to record our gratitude for the way this case has been presented and argued by all parties.
We allow the appeal for the Commissioner in the case against Mr Hsu and reduce the total damages to £35,000, but dismiss the appeal in the case of Miss Thompson where the damages will remain at the total figure of £51,500.
The appeals were test cases brought because of the size of some awards being made by juries in cases against the police. The court has provided guidance as to directions which in future should be given by judges to juries which should produce greater consistency and certainty as to awards and, in particular, avoid the award of excessive sums to plaintiffs as exemplary damages which are awarded as a civil punishment.
In the future the judge will include in his summing up a bracket for basic damages, an indication that the award for aggravating circumstances should not normally exceed the amount of the basic damages (except where the basic damages are modest) and it would require the most exceptional circumstances for aggravated damages to be as much as twice the basic damages.
In the case of exemplary damages the conduct must be particularly deserving of punishment to justify an award of £25,000 and £50,000 should be regarded as the absolute maximum.
The facts of each case are summarised in the judgment of the court and cannot usefully be described any more briefly. However, the court regarded the conduct of the police as outrageous and totally inconsistent with their responsibilities. In Miss Thompson's case senior police officers were involved in the malicious prosecution.
Order: Appeal dismissed in the case of Thompson. Damages to remain at £51,500.
Appeal allowed in Hsu. Damages reduced to £35,000. Stay removed so that Plaintiff's solicitors will repay the Commissioner £15,000 plus interest, paid into court, within 14 days.
Costs of appeal in both cases to be paid by the Plaintiff. Legal Aid Taxation for both defendants.