Terrence Calix v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

In malicious prosecution, reputational damage is assessed objectively. Eccentricity, unconventional living conditions, low social status, or a stoical response do not of themselves reduce compensation for damage to good character. The seriousness of the charge and the claimant’s prior good character are material.

A failure to obtain bail can reduce loss-of-liberty damages only as mitigation of loss. The defendant must plead and prove the point through evidence. Bail is not a judicial act which breaks causation in malicious prosecution. An appellate court may intervene where damages were assessed on a wrong principle or are inordinately low or high.

The appellant brought proceedings for malicious prosecution after being acquitted of robbery and rape. The trial judge found reasonable and probable cause for the arrest and charges, but held that continuation of the rape prosecution was malicious and awarded $38,000.

The Court of Appeal dismissed the appeal. It held that the grant of bail disentitled the appellant to damages for continued detention and upheld the assessment of reputational damage. The central issues before the Board were the assessment of reputational loss, the effect of unclaimed bail on loss-of-liberty damages, and whether the award was so low that appellate intervention was justified.

1. Disposition. The Board quashed the award of $38,000 and remitted the matter to the Court of Appeal for further consideration and determination.
2. Reputation. Damage to reputation had to be assessed objectively. The appellant’s eccentricity, low social status, unconventional living conditions, and failure to obtain early legal representation could not reduce compensation merely because of those circumstances. Such matters could be relevant only to dissemination of the prosecution or to how reputation was regarded by those who learned of it. The appellant’s good character and the seriousness of the rape charge were material. His acquittal on the robbery charge vindicated his innocence and did not reduce compensation for the later malicious prosecution.
3. The objective value of reputational damage was distinct from mental anguish. The appellant’s understated evidence permitted the trial judge to find that he had not suffered significant anxiety, but the possibility that inarticulacy explained the limited evidence of distress had to be kept in mind.
4. Loss of liberty and mitigation. Both lower courts had adopted erroneous approaches. If the respondent relied on a failure to mitigate by obtaining bail, that contention had to be pleaded or clearly notified in advance, supported by admissible evidence, and proved by the respondent. The appellant had to have a fair opportunity to explain why bail was not obtained. The issue could not be addressed speculatively or as a general background circumstance. The Board applied the approach stated in Geest plc v Lansiquot (St Lucia) [2002] UKPC 48.
5. The appellant’s failure to take up bail was not a judicial act. Although a judicial act could preclude liability in false imprisonment, it did not relieve a prosecutor of liability in malicious prosecution for damage caused by setting the prosecution in motion: Lock v Ashton (1848) 12 QB 871. It could not be assumed that the appellant would have secured bail on terms he could fulfil, given the evidential uncertainties and his personal circumstances.
6. Appellate review. The Board applied the established rule that an appellate court should not substitute its own figure merely because it would have awarded differently. Intervention was justified where the lower court applied a wrong legal principle or the award was inordinately low or high: Flint v Lovell [1935] 1 KB 354 and Nance v British Columbia Electric Railway Co Ltd [1951] AC 601. Both errors of principle and the disparity with comparable awards justified intervention. The issue of aggravated damages was left to the local Court of Appeal, which was better placed to assess local conditions and domestic jurisprudence.

• Privy Council. On 23 May 2013, the Board allowed the appeal, quashed the award, and remitted the matter to the Court of Appeal for further consideration and determination.
• Court of Appeal of the Republic of Trinidad and Tobago. On 24 November 2010, the court unanimously dismissed the appeal and upheld the trial judge’s assessment, including its conclusion that the grant of bail excluded damages for continued detention.
• Trial court. Acting Judge Aboud J found the continuation of the rape prosecution malicious and awarded the appellant $38,000.