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Case update – Jonathan Rees v Commissioner of Police of The Metropolis (2021)

12 February 2021
This case deals with a variety of issues relating to quantum arising out the use of comparator cases for an award of damages relating to false imprisonment, the court's discretion and appropriate tests the court must consider when awarding interest pursuant to s35A of the Senior Courts Act 1981 and the maximum award for exemplary damages.

This case stems back to 1987 where Jonathan Rees (' the Claimant') was arrested on various occasions and eventually charged with murder relating to a contract killing outside a London pub. These arrests were made shortly after the date of the murder, the  Claimant was then re-arrested but released without charge. He was finally arrested on suspicion of murder on the 21 April 2008 and was detained until charged on the 23 April 2008. He was remanded until the 3 March 2010 where he was then released with  bail conditions. However, after subsequent witness evidence was tampered with by a high ranking police officer, the case was later discontinued by the Crown Prosecution Service and no evidence was offered. The Claimant obtained a not guilty verdict.

The Claimant brought a claim for damages  for  malicious prosecution and misfeasance in public office along with other claimants. After appeal, the Claimant was successful in obtaining significant damages, including  a basic award of £87,000  which was broken down as  an award of  £27,000 for distress and £60,000 for loss of liberty. Aggravated damages were awarded in the sum of £18,000 and a global award for exemplary damages to be divided between the three claimants of £150,000 was made.

The amount was appealed on two grounds by the Claimant:
  1. The award for loss of liberty was significantly too low;
  2. The judge's decision not to award interest on the damages pursuant to S.35A of the Senior Courts Act 1981 was wrong.

When awarding damages for false imprisonment and prosecution, the leading case to be considered is Thompson and Hsu v Commissioner of Police of the Metropolis [1998] QBD 498. 

Ground 1

Dealing with Ground 1, the Claimant argued that not enough weight was given to  comparator cases involving unlawful immigration detention. However, this was rejected on the basis that such cases should be treated with some caution.

The Claimant relied as their key comparator case on AXD v The Home Office  ("AXD")[2016] EWHC 1617 (QB) which involved the wrongful detention of an individual in an immigration detention centre for 13 months. However, the award in AXD was a global one whereas in the instant case damages were split and the facts in AXD were specific to the case. In AXD the claimant  believed he faced torture and persecution if he was deported and he had been mistreated while detained.

Further,  the authorities make it clear that a progressively reducing scale is to be used as the period of detention increases. Davis LJ agreed with the respondent police force that it is not wise to rely entirely on one case as a comparator. Any appellant should ensure they provide a breadth of comparator cases should they dispute the amount awarded. 

In this case, given that there was no error of law or principle in the way the judge had approached the assessment of the basic award, ground 1 failed. 

Ground 2

Dealing with Ground 2, the appellant challenged the judge's decision not to award interest on the damages awarded. The Judge did not provide reasons for her conclusion.

Whilst accepting that S35A does confer a discretion on the court as to whether interest should be awarded in this type of case, the Claimant argued that he should be awarded interest either from the point no evidence was offered to the Crown Court or at least from when the claim form was issued. 

The Court considered the case of Saunders v Edwards [1987] 1 WR 1117 where it was held that it is always better to award a global sum under the head of damages without the addition of any interest which accounts for the past and future. The case of Holtham v The Commissioner of Police for the Metropolis (The Times, 28 November 1987) applying Saunders, Lord Donaldson MR stated that "a jury would take account of how long it has taken plaintiffs to establish the arrest and imprisonment was unlawful." 

Further, in the case of Pickett v British Rail Engineering Ltd [1980] AC 136 it had been observed that an "increase of damages to take account of inflation was designed to preserve the real value of money; whereas interest was designed to compensate for being kept out of that real value."

In Rees, Davis LJ accepted that loss of liberty has an end-point and is not forward looking in the way distress and reputational damage can be which would come about as a result of the arrest and charge. However, it was accepted that the rule in Saunders should apply, meaning a fixed award of damages should be awarded which reflects the intervening inflation (having regard to the Thompson criteria) and that the award is being assessed up to the date of the Judgment.  In Rees, the Court stated that if this is done there will then be no call for an award of interest under s.35A, but if a Judge does proceed on that basis then it would be good practice for him or her expressly to state that that is indeed the position being adopted.

In Rees, it was found that there was no proper basis for interfering with the Judge's discretion not to award interest under s35A and the appeal failed under Ground 2.

Cross-Appeal

The respondent police force cross-appealed against the original award for exemplary damages stating that the sum was too high. The respondent cited Thomspon that the "absolute maximum" should be £50,000, adjusted to inflation. 

The cross-appeal however was dismissed as the "absolute maximum" referred to in Thompson should be read in a limited way. Particularly, it was mentioned that Thompson was a single claimant, whereas the award here was a global figure, split between the three claimants in total.

Consideration by defendants should be given in relation to the potential size of exemplary damages where a multitude of claimants bring such a claim. In future litigation, defendants should ensure they consider the potential size of exemplary damages that could be awarded, where more than one claimant brings a joint claim. The sum could be substantially larger and still satisfy the figures proposed in Thompson.

It was also noted  that this was a murder case and further that the prosecution case had collapsed in circumstances of notoriety.

It was held that the Judge  had directed herself correctly as to the underlying principles relating to awards of exemplary damages. She had also considered matters in the round and there was no basis for the appellate court interfering.


Further Reading