Rees v Commissioner of Police of the Metropolis

Damages for malicious prosecution and misfeasance in public office are assessed globally and without a tariff. Compensation for wrongful detention follows a progressively reducing scale. Immigration detention awards may assist by comparison, but differences in context require caution.

For non-pecuniary loss, the court may reflect inflation and assess all suffering up to the date of judgment instead of awarding pre-judgment interest under section 35A of the Senior Courts Act 1981.

Exemplary damages require conduct particularly deserving of condemnation. Guidance fixing a maximum for the paradigm single-claimant case does not impose an aggregate ceiling where several claimants were harmed by the same misconduct.

The claimant had been detained for 682 days while facing a murder charge. The prosecution resulted from a senior police officer's dishonest manipulation of witness evidence. In earlier liability proceedings, the Court of Appeal held that the Commissioner was liable for malicious prosecution and misfeasance in public office.

Cheema-Grubb J subsequently awarded the claimant £155,000: £87,000 basic damages, £18,000 aggravated damages and £50,000 as his share of a £150,000 global exemplary award. Her decision is reported at [2019] EWHC 2339 (QB).

The claimant appealed, contending that the loss-of-liberty award was too low and that pre-judgment interest should have been awarded. The Commissioner cross-appealed against the existence or amount of exemplary damages.

1. Appeal and cross-appeal dismissed. The assessment of damages was evaluative. An appellate court could intervene where a material factor had been omitted, an immaterial factor included, an error of law or principle made, or the award fell outside the range reasonably open to the judge. None of those grounds was established.

2. The basic award was permissible. Damages for wrongful detention were not governed by a tariff and were assessed globally on a progressively reducing scale. The judge could use personal injury awards as a cross-check. Awards for unlawful immigration detention were relevant but not ideal comparators because their factual context and composition could differ substantially. Reliance on a single comparator was unwise.

3. Section 35A of the Senior Courts Act 1981 conferred a discretion concerning interest. In claims of this kind, the preferable course would usually be to adjust damages for intervening inflation and assess the claimant's non-pecuniary loss up to the date of judgment. If that course was followed, pre-judgment interest was unnecessary. The trial judge was to be taken as having calibrated her award in that way, although judges should state expressly when adopting this approach.

4. The misconduct justified exemplary damages. It involved a particularly gross breach of trust and egregious behaviour by a very senior police officer. Vicarious liability was relevant but was not decisive. The judge had considered whether the basic and aggravated awards provided sufficient punishment, guarded against double counting and assessed the award in the round.

5. The exemplary-damages maximum described in Thompson and Hsu was guidance for the paradigm case of one claimant, not an aggregate ceiling where several claimants had been harmed. The number of persons subjected to malicious prosecution or misfeasance could affect the global award. The £150,000 global award, divided equally among three claimants, was within the judge's permissible evaluative range.

Davis LJ gave the judgment. Flaux LJ and Elisabeth Laing LJ agreed.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 49, dismissed both the claimant's appeal against quantum and the Commissioner's cross-appeal concerning exemplary damages, affirming the £155,000 award.
2. High Court, Queen's Bench Division: By [2019] EWHC 2339 (QB), Cheema-Grubb J assessed the claimant's damages at £155,000 and awarded interest only from judgment.
3. Court of Appeal (liability stage): By [2018] EWCA Civ 1587, allowed the claimants' appeal and established liability for malicious prosecution and misfeasance in public office.
4. High Court (liability stage): By [2017] EWHC 273 (QB), Mitting J dismissed the claims.