Independent Assessor v O'Brien & Ors [2004] EWCA Civ 1035

“In reaching his assessment, the assessor will apply principles analogous to those governing the assessment of damages for civil wrongs.”

“2.5 … I accept that I should include in this Assessment sums analogous to the compensatory element of an award of aggravated damages, if a court would have included such an award in similar circumstances. Whether the amount of this element should be spelt out specifically in this Assessment raises a more difficult issue. There are arguments either way. On the one hand, an Assessment is intended to reflect appropriate overall compensation for the miscarriage of justice which has occurred: it is all part of one exercise. Sub-division, particularly in the areas of wrongful arrest, false imprisonment and malicious prosecution, tends to be artificial and to give rise to the very real risk of overlap and double-counting. On the other hand, it is said that, in the ever-increasing quest for transparency, an applicant is entitled to a breakdown of his Assessment. It seems to me that the balance of judicial authority is increasingly moving towards the latter view; see, for example, the observations of the Court of Appeal in … Gerald; and, accordingly, I accept that I should now follow the suggested practice. … … 2.7. …Whilst it is correct that I am concerned with ‘compensation’ rather than with ‘damages’, I accept that I should nevertheless concern myself with ‘damages’ and with the various heads of damages. Similarly, I should consider whether aggravated damages would have been awarded (in addition to basic damages) had the claim been a claim in court for damages. ”2.8 …The decision of Lord Woolf MR in Thompson, with regard to proportionality, now appears to be more restricted than I had at first supposed. Although arguably wider, it is, I think, reasonably plain that Lord Woolf’s relevant observations concerning ‘proportionality’ were made with regard to the loss of liberty simpliciter – i.e. to the very fact of imprisonment – and not with respect to any other matter of ‘basic’ damage, still less of aggravated damage. … 2.12 … I agree that an assessment of non-pecuniary losses must take into account all appropriate heads of damage; but the risk of overlap, duplication and double-counting does present an ever-real concern. At the end of the day, the proposed Assessment must be considered in the round, to see whether, taken as a whole, the Assessment appears to provide fair compensation for the miscarriage of justice which has occurred.”

“4. Assessment of compensation for non-pecuniary loss in cases such as this is complex. Relevant factors may include the deprivation of liberty, damage to reputation, the circumstances of imprisonment and their effect, and any psychiatric illness. Misconduct in the investigation and prosecution may be a relevant factor. The factors I have listed are not exhaustive. The conditions of imprisonment and the exclusion from family life caused by a long period of custody may well be significant in a particular case. Any or all of these factors may play their part. However, I do not consider that there should be an assessment approach based on listing them each in turn, making an award for each in turn and aggregating the total. That is to convert the process of fair compensation into a mathematical analysis which is highly unlikely to be realistic or reasonable. There is inevitable merging or overlap in factors which should be taken into account so as to produce a fair overall total. …. It is for the Assessor to act on principles analogous to the quantification of damages at common law. Those principles are to be taken into account but not regarded each in turn as determinative of that component in the amount of the award. … 16. … there are two areas of the law in England which provide some comparison, but the help to be derived is in my opinion limited. The most obvious comparative is an award by the High Court in cases of false imprisonment, which are often accompanied by wrongful arrest and malicious prosecution. The facts of each case differ widely. The Court of Appeal review in Thompson [[1998] QB 498] illustrates the range of award which the courts think appropriate in this area. 17. The second area of analogy is compensation for personal injury. … 18. I do not think libel cases are particularly helpful, following the recent Court of Appeal approach restricting the amount of award towards more conservative levels than had occurred in years past. 19. The approach to assessing compensation in Mr O’Brien’s case must essentially be based upon its circumstances and its consequences for him. It is not possible to calculate the matter purely on a time basis, nor to extrapolate awards for short terms of false imprisonment as producing some annual multiplicand.”

“… the meaning of paragraph 5 is not and is not intended to operate only at the level of abstraction for which Mr Tam contends. It is axiomatic that the words of the statute override the common law where they are inconsistent with it and that any specific prescription in the Note is to be given effect to, whether or not it is consistent with the common law. However, beyond those limitations, it seems to me that the purpose of paragraph 5 is to enjoin the assessor to apply relevant common law principles wherever they are clear and analogous.”

“In its ordinary and natural meaning ‘analogous’ means ‘similar or corresponding in some respect’. I can find nothing in the way that the applicant’s compensation has been assessed which is similar to or corresponds with how it would have been estimated if he had been a plaintiff in a civil claim. His compensation has been linked to a scale of damages which is no longer applicable; he has had his compensation reduced to keep it in line with an earlier award to his co-accused and he has been penalised for the delay in submitting voucher details to support his claim. None of these effects would have accrued if he had been pursuing a civil action. I cannot accept, therefore, that the assessment of compensation has been similar to or has corresponded in any respect with the way damages have been assessed.”

“… Such matters particular to this conviction provide material upon which to conclude that an aggravating feature of this case was the oppressive manner in which this investigation may well have been conducted. In Thompson, the concept of aggravated damages embraced not only oppressive behaviour, but behaviour which was the product of ‘malicious motives, spite or arrogance’ and ‘high handed, insulting, malicious’ conduct. It is essential to note that a further award at common law for aggravated damages for such matters is only to be made if not to make it ‘would result in the plaintiff not receiving sufficient compensation for the injuries suffered if the award were restricted to a basic award’”

“8. Taking into account loss of liberty, the conditions of imprisonment, and his supposed association with a notorious murder whilst a prisoner, I must also have regard to his psychiatric illness, and past heroin addiction, which I accept was a consequence of his wrongful detention.”

“I have not made an award for aggravating factors in Vincent Hickey’s case. His treatment by the Court of Appeal puts him in a wholly different position to Michael Hickey and James Robinson – se page 374 of the judgments, and their assessment of his personality pages 354/5. He succeeded on appeal only on the alibi ground. I find no grounds for making an award of aggravating factors in his case.” “I have not made an award for aggravating factors in Vincent Hickey’s case. His treatment by the Court of Appeal puts him in a wholly different position to Michael Hickey and James Robinson – se page 374 of the judgments, and their assessment of his personality pages 354/5. He succeeded on appeal only on the alibi ground. I find no grounds for making an award of aggravating factors in his case.”

“8. I do not regard these factors properly to be described as ‘heads of loss’, as if each represented a separate ‘head of damage’ or was capable of being given a discrete and reliable separate valuation. These factors merge and overlap. They all represent the suffering of punishment. Ascribing a reliable valuation to each component is impractical and unnecessary. The key question is whether the overall assessment represents fair compensation.”

“16. I do not accept that this compensation scheme should operate on the basis that misconduct in relation to police investigation or prosecutions creates an entitlement to ‘aggravated damages’ to be awarded at common law. This scheme does not involve litigation nor a requirement that any defendant should compensate the applicant. In taking into account the conduct of the investigation and prosecution in any particular case and determining whether the same gives rise to any aggravating factor, I do not consider it necessary or appropriate to treat the concept of ‘aggravated damages’ or the guidance in Thompson as binding or rigidly applicable to the assessment of that factor in this compensation scheme. I consider the correct approach to be that where aggravating factors are established in any particular case, then the compensation should take that into account. It is to be taken into account as to its effect on the applicant and its part in the miscarriage of justice of which he was a victim. Each case must be considered on its own facts. This factor may justify compensation, but nevertheless compensation which proportionate to the rest of the award.”

“… an analogous principle which the independent assessor is obliged to apply … is that derived from Thompson. I do not accept that it is relevant only to the award of damages by juries. It is a principle which is applied by the Court of Appeal itself when quantifying damages: see, for example Gerald and Goswell v. Commissioner of Police for the Metropolis (unreported, 7 April 1998). …. These developments reflect the current jurisprudence in relation to the giving of reasons by judges generally and its rationale: see English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Mr Tam [counsel for the Assessor] suggests that this does not apply to the independent assessor because he is not sitting as a judge. However, he is assessing compensation, often of considerable magnitude, and he is doing so by reference to analogous principles. Moreover, if one wants further evidence of legal development in this or a not dissimilar context, one need look no further than the approach to damages for injury to feeling and aggravated damages in discrimination cases and the recent decision of the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [EWCA] Civ 1871. In the face of these developments – and I emphasise Thompson – there is an analogous principle and it was a legal error for Lord Brennan not to recognise it or to claim the freedom to depart from it.”

“To require the assessor to apply the principle has all the benefits that flow from enhanced reasoning – transparency, assurance that everything has been dealt with, a basis upon which an informed decisions can be take as to whether or not to challenge the award and so on. Moreover, in the present context there is another matter which seems to me to be of some importance. The scheme under section 133 expressly contemplates the possibility that the applicant may have recourse to concurrent or subsequent civil proceedings arising out of the same events. If he does so (and at least one of the present Claimants is doing so), it will be very difficult if not impossible for the trial judge to know what has already been awarded in respect of a contentious item unless the Thompson principle is applied. There is therefore a separate policy reason to support the principle.”

“30 ….(1) unless and until it is further itemised, it cannot be said that whatever part of £125,000 represents the long-term loss of liberty is irrational; (2) the failure to provide at least some breakdown of the £125,000 is legally flawed for the reason I gave in relation to Ground 2; (3) the figure for loss of liberty should reflect its duration on a proportionate but not arithmetically extrapolated basis; (4) either there should be an element in relation to aggravating features or the absence of one should explained on a more forthcoming basis than this not being an appropriate case; and (5) in my judgment, there is an analogous principle derived from Thompson to the effect that an aggravated element arises when, because of aggravating features, a basic award alone would not provide fair compensation and it is legally erroneous to refuse to apply that principle. Accordingly, O’Brien succeeds on this ground of challenge.”

“… that seems to me no more than a ceiling in relation to the previously stated principle that it is ‘not possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case’. Looked at within the four corners of Lord Brennan’s assessment, I do not consider that £35,000 is irrationally low. In my judgment it is a permissible figure. I suspect that what my irk Michael Hickey is the fact that James Robinson received an aggravated award of £172,000 from Sir David Calcutt. For the reasons which I shall explain when I come to consider Ground 6, the deduction for ‘criminality’, I do not consider that Michael Hickey can invoke the Robinson award so as to require Lord Brennan to make an award which he permissibly considered to be wholly excessive. Accordingly, I do not consider that Michael Hickey can sustain this ground of challenge.”

“It is my interpretation of the award that the £140,000 represents loss of liberty and nothing else. If I am right about that, there is no need for a further breakdown. If I am wrong, then there is.”

“… any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty, it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.”

“I do not for my part doubt that that is a correct principle of law. …. [counsel for the claimant] is, in my judgment, entitled to submit that any form of imprisonment gives rise to a stigma and that stigma is not removed until the reputation of the imprisoned party is vindicated in an appropriate manner.”

“Common law principles require that there should be no double compensation. Past and future loss of earnings compensation embraces living expenses that will be paid for out of such earnings. In fact, because he was imprisoned, the applicant did not incur such living expenses. That provides a financial benefit for which credit must be given. The principle accords with the common law approach. See for example Hodgson v Trapp [1989] AC 807 in which, before the later statutory change, the court felt that past and future benefits must be deducted so as to avoid double compensation”

“I do not regard Prison Service Instruction 9/1999 as to the point. An applicant under this compensation scheme is not in the same position as a convicted person in relation to prison earnings whilst in prison. There is no question here of requiring the applicant to pay for his board and lodging in prison, nor any question of treating …[the applicant] in a way that puts him at a disadvantage compared to such a convicted prisoner. The true analysis is that by reason of a miscarriage of justice, he has suffered a loss of earnings. Had he not been the victim of a miscarriage of justice, part of those earnings would have been spent on his own living expenses. 25%, as deducted here, probably represents a modest sum for such living expenses. Having dealt with the question of what he has lost by reason of his imprisonment, there is a requirement to consider any set-off against that loss for any expense which has not been occasioned by reason of his being in prison. It is in that context that the deduction from loss of earnings arises in relation to saved living expenses. The counter argument appears to be based upon the injustice to a victim of a miscarriage of justice, having to accept such a deduction. …. It is said that such an approach is not applicable to convicted prisoners under the Prison Service Instruction. That is not to compare like with like. As I understand the Prison Scheme, that part of the earnings referring to board and accommodation had been deducted by the Prison Service directly from the prisoner’s earnings. It was therefore an actual contribution to such costs, as against here a deduction from loss of earnings, that would otherwise have been made but for imprisonment.”

“In the end the issue in these cases is not so much one of statutory construction as of public policy. If we have regard to the realities, awards of damages for personal injuries are met from the insurance premiums payable by motorists, employers, occupiers of property, professional men and others. Statutory benefits payable to those in need by reason of impecuniosity or disability are met by the taxpayer. In this context to ask whether the taxpayer, as the ‘benevolent donor,’ intends to benefit ‘the wrongdoer’ as represented by the insurer who meets the claim at the expense of the appropriate class of policy holders, seems to me entirely artificial. There could hardly be a clearer case than that of the attendance allowance payable under the Act of 1975 where the statutory benefit and the special damages claimed for cost of care are designed to meet the identical expenses. To allow double recovery in such a case at the expense of both taxpayers and insurers seems to me incapable of justification on a rational ground. It could only add to the enormous disparity, to which the advocates of a ‘no-fault’ system of compensation constantly draw attention, between the position of those who are able to establish a third party’s fault as the cause of their injury and the position of those who are not.”

“[20] Compensation under S.133 is for the suffering of punishment. Section 133(4A) refers to ‘suffering, harm to reputation or similar damage’. In my view this is a reference to non-pecuniary loss, as against financial loss generally referred to in this scheme as pecuniary loss e.g. loss of earnings. The word ‘suffering’ in S. 133(4A) must embrace loss of liberty and consequences of imprisonment. It would be an unwarranted restriction, and artificial, to seek to restrict the word in this sub-set, or sub-sets, of ‘suffering’. Any reduction because of previous convictions and imprisonment, if it has been served, must apply to all the non-pecuniary loss award save for one exemption. Sir David treated that part of an award for personal injury (physical or mental) as not subject to any reduction. I agree. It is fair to treat this as arising independently of any previous offending.”

“…I have no doubt that subsection (4A) permits deduction from the whole of the non-pecuniary award. I can see no logical basis for Parliament having intended to make the distinction which Mr Engelman seeks to draw. I agree with Mr Tam when he suggests that ‘suffering, harm to reputation or similar damage’ is simply Parliamentary shorthand for non-pecuniary loss.”

“17. …. To apply Thomson to scheme awards produces figures e.g. £172,000 for Robinson and £100,000 for Patrick Hill, which are wholly disproportionate and, in my view, far into the realms of exemplary or punitive damages which the scheme excludes. Further such figures must include a penal element which is outwith the purposes of this scheme. He then said, in the passage that I have also set out in paragraph 57, the need for a proportionate application to the scheme of the principle of compensation for aggravating factors, and continued: “For these reasons I do not agree with the approach set out by Sir David in … the Robinson assessment. I do not agree that a multiple of 1.5 … is appropriate – producing the £172,000 in Robinson by applying 1.5 to the £115,000 basic award. Sir David’s assessment in Robinson appears to be inconsistent with his approach in Patrick Hill where he awarded £100,000 for aggravating factors on a ‘basic’ award of £400,000.” … He referred to the issue of question of inconsistency with the Robinson award again in the context of the discrete issue raised on it in relation to deduction for “criminality”

“The applicants rely on Sir David’s reduction of only 10% in Robinson’s case … Each case must be considered on its own merits, as at the time of assessment. Uniformity with previous decisions as to co-applicants or others, is not required (whether it be upward or downward) – cf R v Secretary of State for Northern Ireland ex parte Hegan (unreported 7 September 2000). I do not agree that the 10% reduction in Robinson cannot be exceeded because of a supposed need for, or expectation of, consistency. Consistency as a legal virtue is not synonymous with mathematical consistency as to the amount of any reduction under S. 133(4A). Consistency between mine and Sir David’s assessment is an elusive concept if it is interpreted to be necessary from where Sir David’s conclusion was favourable to an applicant, but when it was unfavourable, I should be free to adopt a different approach.”

“Two things seem to me to be incontrovertible. First, if the same assessor had determined all three cases, he would not have made such different deductions as between Robinson and the Hickeys. Secondly, when considered individually and by reference to each other but without reference to Robinson, the two Hickey deductions cannot be said to be irrational or otherwise susceptible to challenge. It follows that any successful challenge to them must depend on establishing that, one way or another, deductions which are in all other respects lawful offend public law criteria when considered alongside the deduction in Robinson’s case. … 46. Mr Engelman submits that by choosing to depart from Sir David Calcutt’s approach in Robinson, Lord Brennan acted irrationally and in contravention of the principle of consistency which applies unless there is good reason to the contrary. The starting point (which I accept) is that such factual differences as exist between the Hickeys and Robinson were substantially in the Hickeys’ favour …. 47. If an applicant seeks to raise inconsistency as between his award and that of another applicant in a wholly unrelated case he will generally face an insuperable task. Here, however, it is necessary to have in mind that the applications of Robinson and the Hickeys arose out of the same miscarriage of justice in relation to convictions for the same offence. Ideally, the assessments should have been carried out by the same assessor, just as co-accused should, wherever possible, be tried and sentenced by the same judge. Sometimes, rightly or wrongly that is not achieved. If they receive different sentences from different judges on indistinguishable facts, criminal records and personal circumstances and the one receiving the harsher sentence appeals on the basis of disparity, the Court of Appeal, Criminal Division only allows his appeal if he has ‘a justified sense of grievance at what has happened’ (see R v. Butcher (1989) Cr App R(S) 104). Where the harsher sentence was in all other respects unobjectionable, it is usually difficult to establish that any sense of grievance is justified. 48. It seems to me that Lord Brennan’s approach in the present case was akin to that of later sentencing judge who considers that the earlier sentencing judge was too lenient in relation to the indistinguishable co-accused. He simply disagreed with 10% reduction which Sir David Calcutt had made in Robinson. Was he to make what he believed (and, in my judgment, permissibly believed) to be the correct deduction or was he bound to allow himself to be influenced by an award with which he disagreed? In my judgment, it was neither irrational nor otherwise unlawful for Lord Brennan to apply deductions of 20—25% which were in all other respects unobjectionable. He was not bound by any principle of consistency because there was good reason his own permissible judgment – to depart from Sir David’s approach. If, by so doing, he had occasioned a justified sense of grievance on the part of the Hickeys – and I find the approach of the Court of Appeal, Criminal Division to be a helpful comparison in this context – then I would readily conclude that his decision was Wednesbury unreasonable. However, any sense of grievance is unjustified if it simply rest on the fact that deductions which permissible in all other respect compare unfavourably with a more generous approach by a different assessor to a co-applicant. It follows that this ground of challenge fails.”

“… similar situations not to be treated differently and different situations not to be treated in the same way, unless such treatment is objectively justified.”

“… A duty owed by one decision-maker – A – to take account of the views or decision of another decision–maker – B – upon the same or an overlapping issue means nothing whatever unless A has to engage with what B has said: to explain, however shortly, why he differs from it he does.”