Rees & Ors v Commissioner of Police of the Metropolis

Damages for malicious prosecution must be assessed by reference to the harm actually suffered and in a manner that avoids double counting. The charge, distress, reputational stigma and loss of liberty are distinct elements, although previous custody and criminal convictions may reduce the appropriate award. The absence of a criminal trial does not substantially diminish damages where the claimant remained at jeopardy and a substantial evidential hearing occurred. Aggravated damages remain compensatory and require features not adequately addressed by the basic award. Exemplary damages are exceptional. They may be awarded where compensatory damages are insufficient to punish and publicly condemn especially egregious misconduct, including misconduct by a public officer, while recognising the effect on public funds and avoiding double punishment.

The claimants sought damages after the Court of Appeal found the defendant liable for malicious prosecution and misfeasance in public office. The liability decision reversed the first-instance judgment, which had dismissed the claims.

The claims arose from murder charges brought after a senior police officer manipulated the evidence of a key witness. The prosecution was discontinued after the witness’s evidence was excluded. The quantum hearing concerned compensation for distress, reputational harm and loss of liberty, together with aggravated and exemplary damages. The central issues were how those elements should be valued, whether the absence of a trial reduced the awards, and whether exemplary damages were justified.

1. Damages for malicious prosecution. The assessment had to be bespoke and based on the actual harm suffered. The gravity of the murder charge, its publicity, the risk of a life sentence and the prolonged period of jeopardy justified a substantial distress award. Previous convictions could reduce compensation for reputation and distress, but did not eliminate the added stigma and anxiety caused by a murder allegation.
2. Loss of liberty. Loss of liberty was a separately identifiable head of damage, subject to avoiding double counting. A global assessment was appropriate, with a tapering effect over longer periods. Time in category A custody and restrictive bail conditions justified an uplift. The absence of the initial shock of detention, prior experience of custody and the fact that one claimant was already serving a sentence reduced the award.
3. No reduction for absence of trial. The fact that no jury trial occurred did not justify a substantial deduction. The claimants had remained at jeopardy while a lengthy voir dire determined the admissibility of the key evidence.
4. Aggravated damages. Aggravated damages were compensatory and required features not already compensated by the basic award. The senior officer’s prolonged and cynical manipulation of evidence warranted an award. The defendant’s decision to defend the claim and the absence of an apology did not, without more, aggravate the damage.
5. Exemplary damages. Exemplary damages were required because compensatory damages did not adequately punish or publicly condemn the exceptionally serious misconduct. The award served a distinct public condemnation function. The court considered the defendant’s vicarious liability, the use of public funds, the need to avoid double counting and the fact that three claimants were before the court. Exemplary damages of £150,000 in total were awarded and divided equally.
6. The first and second claimants each received £155,000. The third claimant received £104,000. Interest ran from judgment, with costs and interest to be agreed.

• Court of Appeal: In [2018] EWCA Civ 1587, the claimants succeeded on liability for malicious prosecution and misfeasance in public office, reversing the first-instance decision.
• High Court (Queen’s Bench Division): The present judgment assessed damages following the Court of Appeal’s liability findings.