Johnson v Chief Constable of South Yorkshire Police

On a renewed application for permission to appeal concerning a jury’s assessment of damages, the Court of Appeal held that appellate intervention was not arguable merely because an award fell at the lower end of a range or was ungenerous. Judicial Studies Board guidance expressed as an upper limit did not establish a required award. In a malicious prosecution claim, the jury assesses damages and does not conduct a sentencing exercise; it need not speculate about any possible sentence. A concise direction that aggravating features may include the conduct of litigation may be sufficient where counsel’s submissions have addressed the issue. Permission was refused.

Following a nine-day trial in the Sheffield County Court, Herald Johnson sought damages from the Chief Constable of South Yorkshire Police. Her Honour Judge Shipley directed the jury on damages for personal injury, malicious prosecution and aggravated damages on 23 May 2001. A renewed application for permission to appeal was made after Hale LJ refused permission on paper. The proposed appeal challenged the level of the personal injury award, the direction concerning possible sentencing in the malicious prosecution claim, and the guidance on aggravated damages. The central question was whether any of these matters provided an arguable basis for appellate intervention.

1. Application refused. Lord Justice Pill agreed with the conclusion reached by Hale LJ that the proposed appeal was not arguable.
2. On the personal injury claim, the judge had properly put the disputed medical issues before the jury, including the throat injury and the alleged psychiatric and psychological consequences. The jury was entitled to regard the psychiatric consequences as not serious and to accept the evidence concerning the throat injury. The Judicial Studies Board guidance for minor soft-tissue and whiplash injuries, stating a figure up to £3,500, did not assist the applicant as a determinative comparator. Although the lower figure in the judge’s bracket was not generous, it was not so low that the Court of Appeal could properly intervene.
3. On damages for malicious prosecution, the judge’s direction that the jury should avoid speculating about the sentence that might have followed the assault charge did not misdirect them. The jury was assessing damages, not conducting a sentencing exercise. It would have understood the seriousness of the charge and could assess the damages under that head in the circumstances of the case.
4. On aggravated damages, the judge’s direction that aggravating features could include the way in which the litigation had been conducted was sufficient. Counsel had already made full submissions on the issue, which the jury would have had in mind.

The order was application refused, with an order for assessment of Legal Services Commission funding.

• Court of Appeal (Civil Division): On 12 October 2001, Lord Justice Pill refused the renewed application for permission to appeal. [2001] EWCA Civ 1525
• Sheffield County Court: After a nine-day trial, Her Honour Judge Shipley gave directions to the jury on 23 May 2001 concerning the assessment of damages.
• Permission stage: Hale LJ had refused permission on paper on 31 July 2001.