Court of Appeal in Northern Ireland Decisions

1. These appeals, which were heard together, were brought by the appellants against a decision of Gillen J given on 3 February 1999, whereby he dismissed appeals against orders made by Master Wilson on 1 December 1998 remitting the actions to the County Court for the Division of Belfast. They raise issues relating to the nature and measure of damages to be awarded in such actions which have been debated on a number of occasions in this court.

2. Angela Clinton commenced proceedings against the Chief Constable, by writ of summons issued on 24 March 1998, claiming damages for personal injuries, loss and damage for her arrest and detention by police officers and for acts alleged to constitute assault. Her claim was set out in paragraphs 3 to 10 of her statement of claim served on 22 July 1998:

3. Along with her statement of claim her solicitors served a medical report from Dr SJ McHugh, in which the following medical history was set out:

4. It was deposed on behalf of the respondent and not in dispute that this appellant was arrested on 19 July 1993 at 1314 hours and released from custody on 20 July 1993 at 1309 hours, a period of almost exactly 24 hours. She swore an affidavit on 21 January 1999, which the learned judge received and considered along with the evidence which had been placed before the Master. Paragraphs 2 to 8 of that affidavit read as follows:

5. Samuel Donnelly was arrested by police officers at 7.05 pm on 28 January 1992 and detained for a period of one hour. In his statement of claim he alleges that during the course of the arrest and detention he was assaulted and beaten. The particulars pleaded were the following:

6. Mr Donnelly swore an affidavit on 21 January 1999, after the hearing before the master, which was received by the judge. In it he enlarged upon the allegations of ill-treatment, as follows:

7. He exhibited to that affidavit a medical report given by Dr AK Maini following an examination at Antrim Road RUC Station on the evening of the arrest, in which he records the complaints made by Mr Donnelly and describes a number of fresh injuries found on examination.

8. In neither action has a defence been served, and we were not informed what case may be made on behalf of the respondent. We are not, however, concerned with the strength or weakness of the appellants' claims: for the purposes of these appeals we shall assume that the claims are made out and that the appellants will succeed in establishing liability in full against the respondent. In determining them we take the same approach as that which this court approved in Harper v Associated British Foods Ltd [1991] NI 244 at 246-49. We bear in mind accordingly that these are appeals against the exercise of a discretion conferred upon the judge, with the consequence that our function as an appellate court is initially one of review only and that we should not interfere with the decision unless the case comes within the parameters set out in Evans v Bartlam [1937] AC 473 and Hadmor Productions Ltd v Hamilton [1983] AC 191. We have regard to the principles approved in Harper v Associated British Foods Ltd in the following terms:

9. The appropriate level of damages for wrongful arrest, leaving out of account any element of aggravated damages or exemplary damages, was reviewed in detail in the recent decision of this court in Dodds v Chief Constable of the RUC [1998] NI 393, and it is not necessary to explore the earlier authorities cited to us on this point. At page 403 MacDermott LJ, giving the judgment of the court, laid down guidance for courts and practitioners in the assessment of damages:

10. Applying this yardstick, the damages for wrongful arrest and detention in Miss Clinton's case would be of the order of £4000 to £5000, and in Mr Donnelly's case of the order of £600. We do not see any sufficient reasons to depart from these levels in either case for the purposes of these appeals in assessing the basic awards for wrongful arrest and detention.

11. In Miss Clinton's case the distress which she suffered could increase this level of damages, by way of compensation for the effect which the experience had upon her as an individual. Whether or not this amounted to a recognised psychiatric condition, as to which we do not need to express a view, the suffering of distress and anxiety is a well recognised head of compensation. We do not find it necessary to attempt to quantify it too closely in this appeal, for much may depend on the trial judge's assessment of the appellant and her account of the incident and its aftermath and upon the medical evidence which may be called on either side. It is sufficient for us to say that if we accept in full for present purposes the appellant's averments and Dr McHugh's report, in our judgment this element of increase of compensatory damages could not, when added to the basic compensatory award for wrongful arrest and false imprisonment, take the level of damages over the county court limit.

12. Mr C M Lavery QC for Miss Clinton argued that she would be entitled to a further sum by way of aggravated damages. The concept of aggravated damages first appeared as a defined element in an award of damages in Lord Devlin's speech in Rookes v Barnard [1964] AC 1129, where he adopted the phrase to define an element of increase in previous cases which should not be regarded as exemplary damages in the proper sense. After espousing the idea in its Consultation Paper Aggravated, Exemplary and Restitutionary Damages (1993) that aggravated damages contain some punitive element, the Law Commission has now accepted in its Report on this topic (Law Com No 247, 1997) that they should not do so. This corresponds with the view which we expressed in this court in a fair employment case McConnell v Police Authority [1997] NI 244 at 255 that aggravated damages are purely compensatory and do not contain any punitive element.

13. The Law Commission at paragraph 2.4 laid down two basic preconditions for an award of aggravated damages:

14. We consider that this formulation is an accurate statement of the law. It finds support in the judgment of Lord Woolf MR in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 514, where he stated that aggravated damages can only be awarded where "there are aggravating features about the defendant's conduct which justify the award of aggravated damages." By way of example of such aggravating features in a case of wrongful arrest he specified –

15. When we apply this test we do not find anything in Miss Clinton's statement of claim or in the affidavit sworn by her which would give any grounds for an award of aggravated damages. We do not accept the suggestion made by Mr Lavery that the onus is on the defendant in a case of wrongful arrest to establish that there were no such aggravating circumstances. There is an onus on the defendant in any such case to justify the arrest and detention by proving that they were lawful; but it does not in our opinion follow that he must dispel any suggestion of aggravating circumstances where the plaintiff has not proved any facts which tend to prove their existence.

16. It was then argued that the appellants could both properly be awarded exemplary damages, and that the total damages would in each case exceed the county court limit. Mr Lavery also maintained that in every case of assault by police officers on a citizen exemplary damages could and should be awarded. The limits within which exemplary damages can be awarded were laid down by Lord Devlin in his speech in the House of Lords in Rookes v Barnard [1964] AC 1129, and although these have been the subject of much judicial and academic discussion since then they remain fixed and have to be applied in this court.

17. Before the decision in Rookes v Barnard exemplary damages had been fairly freely awarded, as they still are in some other common law jurisdictions. It is clear from his speech that Lord Devlin regarded punitive damages as anomalous, in that they confuse the criminal and civil functions of the law. He would have been ready to abolish them, if he had not felt constrained by long-standing precedents to allow their continued existence, albeit in a substantially more restricted form. He reclassified some apparently punitive past awards as compensatory, terming them aggravated damages. He was left with three categories of case in which it is still possible for a court to make an award of exemplary damages:

18. The second and third categories are not in point in the present appeals and if exemplary damages can properly be awarded in either case it must be under the first head.

19. Lord Diplock cast doubt in Cassell & Co Ltd v Broome [1972] AC 1027 at 1130 on the necessity for retaining the first category in modern law, pointing out that in view of the development of common law weapons to curb excesses of executive power it is a blunt instrument to use for this purpose today. He also observed that it was Lord Devlin's intention in Rookes v Barnard to remove from the categories of exemplary damages cases of outrageous or arrogant behaviour, which can adequately be dealt with by resort to the concept of aggravated damages. He recognised, however, as we must, that the first category remains part of the established law. That is not to say that modern courts should be too ready to award exemplary damages for torts which can be classified as falling into this category, for it lies within their discretion to decide in which cases they think it right to do so, and it is, as Lord Devlin said in Rookes v Barnard at page 1228, a weapon to be used with restraint. The purpose of retaining the first category of exemplary damages is to vindicate the strength of the law and to compel servants of the government (who for present purposes include the police) to be mindful of their obligation to use their power properly in the service of the public whose servants they also are ( ibid at page 1226). The exemplary principle can, as Lord Devlin said ( ibid at page 1223) serve a valuable purpose in restraining the arbitrary and outrageous use of executive power. The passages which we have quoted give a tolerably clear indication of the type of case in which a court might think it right to award exemplary damages. We agree with the opinion expressed in McGregor on Damages , 16 ^th ed, para 447, that notwithstanding the statement in Holden v Chief Constable of Lancashire [1987] QB 380 at 388 that unconstitutional action alone may suffice to ground an award of exemplary damages, that should not suffice without the presence of aggravating features. As the learned author says –

20. We do not propose to attempt to define more closely the types of case in which exemplary damages might properly be awarded for assaults by police officers, for situations may vary infinitely. It is sufficient to say for the purposes of this appeal that if the facts deposed to in Mr Donnelly's affidavit and retailed in Dr Maini's report are established in evidence and the court accepts it as an unprovoked attack upon a young suspect, it could be a proper case for an award of exemplary damages. By contrast, we can see nothing in the facts available to us in Miss Clinton's case to give a proper foundation for an award of exemplary damages.

21. The issue was debated before us of the level of award which might properly be made if the court makes an award of exemplary damages. Mr Weatherup QC for the respondent cited to us a number of examples of awards in our courts which were of relatively modest size. Mr Macdonald for the appellants pressed upon us the decision of the English Court of Appeal in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, in which a higher starting point was accepted. Lord Woolf MR stated at page 517 that where exemplary damages are appropriate they are unlikely to be less than £5000. Mr Weatherup did not seek to argue that a lower level should be fixed in our courts, notwithstanding the fact that levels of damages in the two jurisdictions have diverged to some extent. We think it right that the levels in Northern Ireland should be comparable with those awarded in England, but we also agree with Mr Weatherup's proposition that the size of such awards underlines the fact that they should only made in exceptional cases.

22. The learned judge took the view that in Donnelly's case the award for personal injuries could be in the range of £3000 to £4000, in addition to the £600 for unlawful detention. He accepted that there could be a basis for aggravated damages and exemplary damages, but concluded:

23. Mr Macdonald argued that the judge misdirected himself in this passage, placing the onus on the plaintiff to bring the case within the High Court jurisdiction. He stated quite clearly, however, at page 7 of his full and careful judgment that the onus rests upon the defendant to establish that the full amount of the plaintiff's claim was likely to be within the monetary limit of the jurisdiction of the county court, a point which he repeated at page 15 when discussing Angela Clinton's case. We are satisfied accordingly that the judge properly appreciated where the onus lay and applied the correct principle in that respect in determining these appeals.

24. We consider that the judge correctly approached the issues in these appeals in all respects and that he took into account the proper considerations on all the issues which he had to decide. We are further of the opinion that his decision about the types of damages which could appropriately be awarded in each case was right, and that he took an entirely sustainable view of the probable levels of damages in each. We accordingly consider that there is no ground on which we should interfere with the exercise of his discretion. We affirm his decision in each case and dismiss the appeals.