Thompson v Comr of Police of the Metropolis (Hsu v Comr of Police of the Metropolis)

In civil claims against the police, juries should receive structured but non-binding guidance on basic, aggravated and exemplary damages. Basic and aggravated damages are compensatory and must not together exceed fair compensation for the injury suffered.

Exemplary damages are exceptional. They may be awarded only where compensatory damages provide inadequate punishment for oppressive or arbitrary conduct. The award must be sufficient, but no greater than necessary, to mark the jury’s disapproval. Judges should give suitable monetary brackets while emphasising the jury’s responsibility for the final assessment.

An appellate court may intervene where a jury’s award is wholly erroneous or disproportionate, or where a material misdirection has caused injustice. It may substitute the sum it considers proper.

These conjoined test appeals concerned jury awards against the Commissioner of Police for serious police misconduct. In Hsu v Commissioner of Police of the Metropolis, the jury awarded £20,000 compensatory and aggravated damages and £200,000 exemplary damages for wrongful arrest, false imprisonment and assault. In Thompson v Commissioner of Police of the Metropolis, the jury awarded £1,500 compensatory and aggravated damages and £50,000 exemplary damages following an assault, detention and malicious prosecution.

The Commissioner appealed both awards from the Central London County Court. Miss Thompson cross-appealed against the compensatory award. The trial judge’s directions complied with the existing practice, so the Commissioner could succeed only if the awards were wholly erroneous or disproportionate.

The central issues were when an appellate court may interfere with jury damages and what guidance juries should receive when assessing basic, aggravated and exemplary damages in civil actions against the police.

Lord Woolf MR delivered the judgment of the court, comprising himself, Auld LJ and Sir Brian Neill.

1. Disposition. The Commissioner’s appeal in Hsu v Commissioner of Police of the Metropolis was allowed. The exemplary award was reduced from £200,000 to £15,000, producing total damages of £35,000. The Commissioner’s appeal in Thompson v Commissioner of Police of the Metropolis was dismissed and the total award remained £51,500. The cross-appeal produced no variation.

2. An appellate court may ordinarily interfere with a jury’s damages where the award is wholly erroneous or totally disproportionate, or where a material misdirection has caused injustice. Section 8 of the Court and Legal Services Act 1990, together with rule 11(4) of Order 59 of the R.S.C., permits the court to substitute a proper sum. The statutory interpretation adopted in Rantzen v Mirror Group Newspapers [1994] QB 670 applies across different causes of action.

3. Trial judges should give juries suitable monetary brackets, after hearing submissions from counsel in the jury’s absence. The figures are guidelines rather than binding rules and must not be applied mechanically. The jury retains responsibility for assessing the gravity and circumstances of the case.

4. Basic damages compensate for the injury, loss of liberty or wrongful prosecution. Aggravated damages remain compensatory and require pleaded aggravating features, such as humiliating, high-handed, insulting, malicious or oppressive conduct. Separate awards should ordinarily be returned. Their combined amount must not exceed fair compensation, and aggravated damages will not normally reach twice the basic award.

5. Exemplary damages are exceptional. They should be awarded only where basic and aggravated damages provide inadequate punishment for oppressive or arbitrary police conduct. The sum should be sufficient, but no greater than necessary, to mark disapproval. An award below £5,000 will rarely be justified; £25,000 requires conduct particularly deserving of condemnation; and £50,000 is the absolute maximum, involving officers of at least superintendent rank.

6. Improper conduct by a claimant may reduce or eliminate aggravated or exemplary damages only where it caused or contributed to the offending behaviour. Failure to cooperate with a complaints procedure cannot reduce compensation. Disciplinary proceedings are relevant only upon clear evidence that they are intended and have a strong prospect of success. Persistence in a false defence may increase aggravated or exemplary damages.

7. Mr Hsu’s £20,000 compensatory and aggravated award was permissible, but £200,000 exemplary damages was manifestly excessive. In Miss Thompson’s case the court would have allocated £10,000 basic, £10,000 aggravated and £25,000 exemplary damages. The jury’s overall award nevertheless remained within its margin of appreciation.

1. Court of Appeal: By its judgment reported at [1998] QB 498, the court allowed the Commissioner’s appeal in the Hsu action and reduced total damages from £220,000 to £35,000. It dismissed the Commissioner’s appeal in the Thompson action and made no variation upon the cross-appeal, leaving total damages of £51,500.
2. Central London County Court: Juries directed by His Honour Judge Quentin Edwards QC awarded Mr Hsu £20,000 compensatory and aggravated damages and £200,000 exemplary damages. Miss Thompson received £1,500 compensatory and aggravated damages and £50,000 exemplary damages.