England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE LLEWELLYN QC
HQ11X04427

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/11/2017

Lord Justice Sales:

1. This is the decision on the issues of quantum of compensation to be awarded in favour of the appellant. This court gave its decision in relation to the appellant's appeal in respect of issues of liability in relation to her complaints of race discrimination against the respondent Chief Constable on 17 August 2017 (neutral citation [2017] EWCA Civ 1275) and gave directions for written submissions to be filed in relation to issues of quantum. This judgment should be read in conjunction with our previous decision on issues of liability.
2. At the hearing in this court on issues of liability the parties agreed that outstanding issues in relation to the appeal on quantum should be determined by the court on the basis of written representations without a further hearing. They also agreed that the appeal on quantum could be determined by two of the three original members of the constitution of the court which heard the appeal on liability. Since that hearing, Black LJ has been promoted to the Supreme Court. The appeal on quantum is therefore now determined by Moylan LJ and myself.
3. The factual background appears from this court's previous decision and from the decision of the judge on liability at first instance. To recap briefly, the judge dismissed many parts of the appellant's claim against the police but did find that two incidents of racially discriminatory conduct were made out: (i) in relation to the incident in Bristol city centre in the early hours of 13 June 2009 concerning the fracas between the appellant, Ms Putterill and Mr Allen and the taxi marshals, the police initially focused on arresting the appellant (who is of mixed race), before eventually arresting Ms Putterill and Mr Allen (who are both white) as well for involvement in the incident; and (ii) in relation to the handcuffing of the appellant's hands behind her back before she was placed in the police van. In relation to (i), the judge found that the police had proper grounds for arresting the appellant. This court allowed her appeal on liability in part, so as to add (iii) an additional finding of unlawful racially discriminatory conduct in relation to the significant delay in allowing the appellant to go to the toilet at the police station, with the result that she was obliged to urinate on the floor of the holding cell in front of a group of male officers.
4. Findings were made in relation to each of (i) to (iii) to the effect that the unlawful conduct occurred as a result of unconscious bias on the part of the two relevant police officers, PC Brett and PS Thorpe, and not as a result of conscious and deliberate racially motivated conduct on their part.
5. There is power to award damages for injury to feelings: section 57(4) of the Race Relations Act 1976. In his judgment on quantum handed down on 5 January 2015 the judge awarded compensation in the sum of £4,950 in respect of injury to the appellant's feelings in relation to items (i) and (ii) taken together (this has not yet been paid). In his liability judgment he had found that the appellant suffered no significant physical injury from the application of the handcuffs under item (ii).
6. However, the question of compensation has to be looked at again by this court because the overall picture of relevant discriminatory conduct on the night in question has been significantly changed by the addition of finding (iii). In my view, it is appropriate to make one award of compensation to cover items (i) to (iii) together (this has not yet been paid). They all occurred within a few hours in one night and all related to what is best regarded as a single process of the arrest and initial detention of the appellant in relation to the original fracas. They concern the treatment the appellant received from PC Brett and PS Thorpe as part of that process. I do not think it is appropriate to consider item (iii) apart from items (i) and (ii) and to award distinct compensation in relation to item (iii) as a separately assessed element of compensation in addition to the compensation award made by the judge. In my judgment this court should assess the compensation payable in relation to (i) to (iii) in the round to arrive at a single overall figure for quantum of loss.
7. This court gave guidance as to the level of compensation in discrimination cases in Vento v Chief Constable of West Yorkshire Police (No. 2) [2002] EWCA Civ 1871; [2003] ICR 318, by reference to three bands determined by the seriousness of the case. The lower band of £500 to £5000 applied in less serious cases; the middle band of £5,000 to £15,000 applied in serious cases that did not merit and award in the upper band; the upper band of £15,000 to £25,000 applied in the most serious cases (with the most exceptional cases capable of exceeding £25,000). In Da'Bell v NSPCC [2010] IRLR 19 the Employment Appeal Tribunal uprated the bands for inflation to £600 to £6,000 (lower band), £6,000 to £18,000 (middle band) and £18,000 to £30,000 (upper band). In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879 this court held that for claims falling for consideration after 1 April 2013 these amounts should be subject to an uplift of 10% to reflect the general approach to increases in similar kinds of damages awarded in personal injury cases laid down in Simmons v Castle [2012] EWCA Civ 1039 and 1288; [2013] 1 WLR 1239. This court in De Souza also invited the President of Employment Tribunals in England & Wales to issue fresh guidance to adjust the Vento figures further for inflation and to incorporate the Simmons v Castle uplift.
8. A consultation was carried out. On 4 September 2017 the President of the Employment Tribunals in England & Wales and the President of Employment Tribunals in Scotland issued a document entitled "Presidential Guidance" and headed "Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879." The Presidential Guidance states that for claims presented on or after 11 September 2017 the Vento bands are to be increased to £800 to £8,400, £8,400 to £25,200 and £25,200 to £42,000. For claims presented before that date, the Presidential Guidance sets out at para. 11 a formula by reference to the RPI All Items Index for the month and year closest to the date of presentation of the claim to uprate for the effects of inflation since 2010, with the Simmons v Castle uplift of 10% then to be applied.
9. Mr Adkin in his submissions for the appellant urges us to use the revised Vento band figures for claims presented after 11 September 2017, even though the appellant's claim was presented well before this, as a way of taking account of the delay in the appellant receiving full compensation for the wrong done to her. We have not been provided with information about the RPI Index for the month and year of presentation of the appellant's claim, so we are not able to apply the formula in para. 11 of the Presidential Guidance. As an alternative submission, Mr Adkin says that we should make an award based on the figures which could have been used by the judge in his judgment on quantum in January 2015 and then award interest at the court rate of 8% p.a. (a rate well above the actual rates of interest applicable from 2015).
10. In accordance with British Telecommunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327, in particular at [21], [32] and [34], the quantum of damages should be that appropriate to compensate the appellant for matters arising out of and consequential upon the acts of discrimination in her case. In Reid there was a protracted grievance process which was not discriminatory in itself but which was found to have arisen as a result of the discriminatory act in that case and which therefore had a bearing on the amount of compensation to be awarded.
11. Mr Adkin submits that the level of compensation should be increased to take account of a number of features of this case which he says arose from and were consequent upon the acts of discrimination at items (i) to (iii):

(a) Being thrown around in the back of the police van due to being rear handcuffed, and being laughed at by police officers (judge's liability judgment at [36], and see [18]-[19] and [44] of the liability judgment of this court);

(b) The investigation carried out by Inspector Andrew Jackson following the appellant's complaint to the Professional Standards Department of the respondent, which upheld her complaint in respect of the urination incident but dismissed her allegation of race discrimination (judge's liability judgment at [50]-[60]). The judge recorded that the appellant's evidence was that Inspector Jackson dismissed her other complaints, describing some of them orally to her as "pathetic" (judge's liability judgment at [55]);

(c) An appeal to the Independent Police Complaints Commission ("IPCC") made on 3 November 2009 which resulted in a conclusion that the denial of toilet facilities was inadvertent (judge's liability judgment, [59]);

(d) An offer made on 6 October 2009 of £200 compensation arising from the urination incident, which Mr Adkin describes as derisory and which the judge said seemed to him "barely to reflect the degree of distress and humiliation which a woman will have suffered in these circumstances" (judge's liability judgment, [94]);

(e) A subsequent re-investigation by Chief Inspector Norman Pascal in September 2010;

(f) The protracted nature of the litigation, which Mr Adkin says was caused in part by the respondent's failure to comply with two court orders to file evidence and also requiring the appellant to appeal to the High Court against an order of Master Cook of 23 March 2012, which had removed the claim of race discrimination, to have that pleaded case restored by order of Lang J on 19 November 2012.

12. Mr Adkin also submits that this is a case in which aggravated damages should be awarded, relying in particular on Commissioner of Police of the Metropolis v Shaw [2012] ICR 464, EAT per Underhill P at [24] and [38]. Mr Adkin further submits that this is a case in which exemplary damages should be awarded, because the conduct of the police was oppressive and arbitrary.
13. There is a substantial gulf between the parties as to the level at which compensation should be set.
14. In my judgment, this is not a case of race discrimination of the most serious kind, so as to fall within the upper Vento band. The relevant acts of discrimination arose as a result of unconscious racial bias and were not accompanied by goading or offensive or inappropriate comments made to the appellant herself.
15. Within the spectrum of the Vento bands, I consider that the case is a serious one which falls into the middle band. Overall, I would place it towards the lower end of the middle band in terms of seriousness. The upset and humiliation caused by the urination incident in item (iii) were particularly significant. Also, the appellant had to follow a long and hard road of complaints and then full-blown litigation over a very extended period of time in order to gain vindication for her complaint in that regard, which was upsetting and stressful in itself. Items (i) and (ii) were by no means insignificant, but I think that the judge was right to treat them (if taken without item (iii)) as falling within the lowest Vento band.
16. In making this assessment of the relevant Vento band and the amount of compensation to be awarded I have taken into account the points made by Mr Adkin as set out at para. [11] above. I consider that taken together they do have some bearing so as to increase the upset and distress which the appellant has suffered which has resulted from the acts of discrimination at items (i) to (iii), meriting some increase in the compensation to be awarded. But in my view they do not have the force which Mr Adkin seeks to give them. The assessment of the compensation payable in a case like this is not a refined mathematical exercise, but a relatively broad-brush exercise which seeks to do overall justice between the parties. Accordingly it is appropriate simply to make some brief comments on Mr Adkin's list of points as follows:

(a) Being thrown around in the back of the police van was not something which the police driver of the van deliberately sought to achieve and the appellant suffered no significant physical injury (see this court's liability judgment, [18]). She was not aware at the time of the incident that police officers had been laughing in the van and that did not form part of her complaint to the court (see this court's liability judgment, [44]);

(b) The appellant made a wide range of complaints against the police in relation to her treatment, including in relation to the decision to arrest her, the tightness with which the handcuffs were applied to her wrists, her interview and treatment on 15 July 2009, the decision to commence criminal proceedings against her, the investigation into her complaints by Inspector Jackson, the decision not to prosecute the taxi marshals and the further investigation into her complaints by Chief Inspector Pascal. Many of her complaints had nothing to do with items (i) to (iii) and were not consequent upon them. Her arrest and the initiation of criminal proceedings against her were not wrongful acts and did not flow from items (i) to (iii). There is little doubt that the appellant would have pursued the whole range of all her other complaints, including many which were found not to be justified by the judge, even if the acts of discrimination in items (i) to (iii) had not occurred. The investigations into her various complaints were found to have been appropriate and lawful in themselves. At para. [55] of the judge's liability judgment he described the appellant's evidence about what Inspector Jackson said to her, but he did not say that he accepted that evidence. Reading that paragraph and the judgment as a whole, I do not think he did accept her evidence on that point. The judge had no difficulty in criticising the police in robust terms when he thought it justified, but he made no criticism of Inspector Jackson in relation to this. On the contrary, in para. [55], immediately after setting out the appellant's evidence about what she said Inspector Jackson had said to her, the judge stated "However, he did in fact uphold the [appellant's] complaint in respect of the episode of urination", and he went on to emphasise that "It was a careful and genuine investigation".

(c) Sub-paragraph (b) above is repeated. The complaint to the IPCC covered a range of matters, including aspects of items (i) to (iii) but going well beyond those items, and would in all probability have been pursued by the appellant even if the acts of discrimination in items (i) to (iii) had not occurred.

(d) Although the judge was critical of the amount offered in compensation for the urination incident at para. [94] of his liability judgment and plainly thought things could have been handled better by the respondent, he also referred in that paragraph to the full apology given by the police for her treatment and he did not characterise the sum offered as being so low as to be derisory.

(e) Similar comments to those in sub-paragraphs (b) and (c) apply here as well;

(f) Part of the protracted nature of the litigation resulted from the wide range of claims which the appellant brought against the police, most of which were unsuccessful. As mentioned above, I have allowed some uplift to the amount of compensation to be awarded to reflect the time and effort required for the appellant to achieve vindication in respect of items (i) to (iii) in her race discrimination claim, to the limited extent I consider is appropriate.

17. I did not find the analogies with other cases proposed by the respondent very helpful. Every case turns on its own specific facts. This one is unlike others and has its own particular features in various respects.
18. In my opinion the amount of compensation which is just and equitable in all the circumstances of this case is £14,000. I arrive at that figure using the latest figures for the Vento bands as set out in the Presidential Guidance, even though the appellant's claim was made well before September 2017, as the best way in the circumstances in which this court finds itself of making due allowance for the effect of interest and an appropriate element of uplift in relation to the long and hard road which the appellant had to take to achieve vindication for her claim in respect of items (i) to (iii) - even though a substantial part of the time, effort and stress in pursuing her complaints with the police and then in embarking on litigation related to other complaints and claims which were found not to be meritorious. That sum should be paid by the respondent to the appellant within 7 days of the handing down of this judgment.
19. For anyone reading this judgment, I caution against an attempt to engage in "reverse engineering" to separate out the element of compensation in relation to item (iii) from the overall award in relation to items (i) to (iii) taken together. As I have emphasised above, I have assessed the amount of compensation starting afresh and taking all of items (i) to (iii) together. That is the best way to meet the justice of the case.
20. In my judgment, this is not a case in which it is appropriate to award aggravated damages. As set out in the guidance referred to in Commissioner of Police of the Metropolis v Shaw at [16], derived from Rookes v Barnard [1964] AC 1129:

"…

(2) The features that may attract an award of aggravated damages can be classified under three heads – (a) the manner in which the defendant committed the tort; (b) the motive for it; (c) the defendant's conduct subsequent to the tort but in relation to it.

(3) The features enumerated at (2) above affect the award of compensation because they aggravate the distress caused by the actual wrongful act."

21. In the present case, I do not consider that any of factors (a) to (c) apply so as to justify an award of aggravated damages. As regards (a), the compensation figure set out above already takes account of the humiliating circumstances of the appellant's treatment and the distress suffered as a result, particularly in relation to item (iii) (the urination incident). There was nothing additional about the manner in which the wrongs in items (i) to (iii) were committed, beyond the basic facts, which serves to aggravate matters and which should further increase the compensation due. The unlawful conduct was not accompanied by goading, lewd comments or abuse, such as might have made an award of aggravated damages appropriate.
22. As to (b), there was no ill-intentioned motive for the conduct. It was the consequence in each case of unconscious racial bias. The distress suffered by the appellant as a result of experiencing the conduct has already been taken into account in the compensation figure above.
23. I have already commented about the respondent's conduct subsequent to the wrong constituted by items (i) to (iii) and in relation to it. Given the wide range of complaints made by the appellant, most of which were ultimately not upheld, it was practically inevitable that she would be involved in arguments with the police over a long period, whether or not she ever succeeded in relation to items (i) to (iii). The judge found the police's own inquiries to have been lawful and proper. I do not consider that there was anything so obvious about the merits of the appellant's claims in relation to items (i) to (iii) which meant that it was inappropriate for the respondent to seek to defend them in the usual way through the litigation process. To the extent that a degree of uplift is already justified in relation to what happened subsequent to the conduct in items (i) to (iii) as part of the ordinary compensation amount to reflect the guidance in British Telecommunications Plc v Reid, the compensation award above already allows for that. There is no additional element of inappropriate conduct by the police which would justify a further increase in the sum to be awarded, by way of an award of aggravated damages.
24. Finally, for similar reasons, I also reject the appellant's claim for exemplary damages. Exemplary damages are penal in nature. They are awarded to punish particularly outrageous behaviour on the part of a defendant. As summarised in McGregor on Damages (19^th ed.) at para. [13-001], exemplary damages may be awarded:

"whenever the defendant's conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like, or as where, should the defendant be a government servant, it is oppressive, arbitrary or unconstitutional."

25. Mr Adkin submits that the conduct of PS Thorpe and of the police more generally, including in relation to the investigations by Inspector Jackson and Chief Inspector Pascal, should be viewed as oppressive and arbitrary, so as to merit an award of exemplary damages. I do not agree.
26. On the relevant findings, the conduct of PS Thorpe was not motivated by deliberate racial prejudice. It was the product of unconscious bias. It was a legal wrong, but not one with aggravating features and not one which could be described as oppressive or arbitrary in the requisite sense for the purposes of the law on exemplary damages. It is not conduct which merits a penal award of damages, over and above what is appropriate to compensate the appellant for the wrong done to her.
27. The police investigations were appropriate, genuine, properly motivated and lawful. Although they arrived at a conclusion which did not go as far as the appellant wished and in relation to which she has achieved more by this litigation, it cannot be said that they constituted oppressive or arbitrary conduct. On the contrary, they seem to me to show that the police were at pains to act in a way which was not oppressive or arbitrary.

Lord Justice Moylan:

28. I agree.