O'Brien & Ors, R (on the application of) v Independent Assessor [2003] EWHC 855 (Admin)

Case No CO/34232003

Case No CO/3820/2002

Case No CO/3821/2002

[2003] EWHC 855 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 April 2003

Before

THE HONOURABLE MR JUSTICE MAURICE KAY

THE QUEEN

On the application of

Between

(1) MICHAEL O’BRIEN,Claimants

(2) VINCENT HICKEY ANDClaimant

(3) MICHAEL HICKEYClaimant

INDEPENDENT ASSESSORDefendant

Ms Heather Williams (instructed by Hickman Rose) for Claimant (1)

Mr Philip Engelman (instructed by Hodge, Jones and Allen) for Claimants (2) and (3)

Mr Robin Tam (instructed by Treasury Solicitor) for Defendant

Hearing Hearing dates : 11-13 March 2003

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

[1]At Stafford Crown Court on 9 November 1979 four men were convicted of the murder of Carl Bridgewater. They included Michael Hickey, who was then aged seventeen, and Vincent Hickey who was aged 25. Michael Hickey was sentenced to detention during Her Majesty’s pleasure, with a concurrent sentence of eight years’ detention for aggravated burglary. At the same time he was also sentenced to concurrent sentences of twelve years’ detention for two unconnected armed robberies. Vincent Hickey was sentenced to life imprisonment for the murder, with a recommendation that he serve a minimum of twenty five years, and to 10 years concurrent for the aggravated burglary. He was also sentenced, concurrently, to 12 months imprisonment for an unconnected offence of deception. Both men remained in custody until they were released on bail in February 1997. Earlier appeals, had been unsuccessful but on 30 July 1997 the Court of Appeal Criminal Division quashed the convictions for murder and aggravated burglary. The equivalent convictions of their co-accused, Patrick Molloy (who had died in prison) and James Robinson, were quashed on the same occasion.

[2]Michael O’Brien, together with two co-accused, was convicted at Cardiff Crown Court on 20 July 1988 of the robbery and murder of Philip Saunders. He was sentenced to life imprisonment and he remained in custody until he was released on bail on 23 December 1998. On 25 January 2000 his conviction, and those of his co-accused, were quashed by the Court of Appeal Criminal Division.

[3]Following the quashing of their convictions, Michael Hickey, Vincent Hickey and Michael O’Brien made applications to the Secretary of State for compensation. They claimed under section 133 of the Criminal Justice Act 1988 which is headed “Compensation for miscarriages of justice”. In its amended form, section 133 provides:

“(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted. (2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State. (3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State. (4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State. (4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to – (a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) any other convictions of the person and any punishment resulting from them.” (a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) any other convictions of the person and any punishment resulting from them.”

[4]In each of the cases of the Hickeys and O’Brien, the Secretary of State determined that the applicant had a right to compensation under section 133. It is the practice of the Secretary of State to appoint an independent assessor who is experienced in the assessment of damages. Until July 2001, the assessor was Sir David Calcutt QC. He was then succeeded by Lord Brennan QC. The assessments in relation to the Hickeys and O’Brien were carried out by Lord Brennan.

The assessments

[5]The assessment of the award to Michael Hickey resulted in the following:(1) non-pecuniary loss - for all factors other than psychiatric illness: £140,000 - uplift for aggravating features 35,000 - psychiatric illness 75,000 ______ £250,000 From this sum, a 20% deduction was made because of his criminal record. Lord Brennan thereby reduced the award to £220,000, but that appears to be an arithmetical miscalculation which he should be invited to correct.

(2) pecuniary loss - mother’s travelling expenses 15,000 - campaign costs 35,000 - counselling expenses 75 - past loss of earnings 301,095 - past care 18,618 - past Court of Protection costs 762.50 - future loss of earnings 209,357 - future loss of pension 13,993 - future care 138,719 - future psychiatric treatment 5,000 - future Court of Protection costs 26,391 With the addition of an award of interest in respect of past pecuniary loss, this produced a pecuniary loss total of £770,000 which, when aggregated with the pecuniary loss of £220,000, gave a grand total of £990,000, in respect of which interim payments of £170,000 had previously been made

[6]The assessment of the award to Vincent Hickey was as follows: (1) non-pecuniary loss 90,000 - of this figure, £50,000 represented past and present psychiatric injury - interest 3,248 193,248 From this sum, a 25% deduction was made because of his criminal record, thereby reducing it to £144,936 (2). Pecuniary loss - past pecuniary losses (net) 242,481 - future loss of earnings 99,691.20 - future loss of pension 14,112 - future medical costs 5,000 361,284.20 Thus, the total award was £506,220.20, in respect of which interim payments of £285,000 had previously been made.

[7]The assessment of the award to Michael O’Brien was as follows: (1) non- pecuniary loss 200,000 - of this figure, £125,000 represented “the consequences of imprisonment” and £20,000 was in respect of “the of conduct of the investigation”. The balance of £55,000 related to psychiatric illness - interest on the personal injury element: 2475 (2). pecuniary loss - past loss of earnings, including interest 186,809 - future loss of earnings 197,130 - SERPS loss 12,000 - past care 12,500 - other past and future losses 36,98610. 445,425

11. These figures therefore resulted in a grand total of £647,900, of which £200,000 had previously been paid on an interim basis. It is to be noted that in O’Brien’s case there was no deduction under section 133(4A)(c) because he had no other convictions.

The applications for judicial review

[8]The three Claimants each made applications for permission to apply for judicial review. In each case, Lord Brennan produced an Addendum to his original assessment after the commencement of proceedings. It is in the form of a response to representations made by solicitors and/or the matters set out in the claim forms. O’Brien was granted permission to apply on 7 October 2002. The Hickeys were initially refused permission but it was granted to them both at a renewal hearing on 22 November 2002. Arrangements were made for the three substantive applications to be heard together.

[9]The grounds of challenge overlap in relation to the three applications. Some relate to specific elements in the awards and take issue with the quantification or exclusion of particular items. In some cases the points are not common to all three cases. I propose to consider these more specific points later in this judgment. The first grounds of challenge which I shall address are of a more general nature and raise important matters of principle.

Ground 1: the legal parameters of an assessment

[10]This heading is my shorthand which is intended to embrace a number of submissions on matters of general principle which were advanced on behalf of all three Claimants. To an extent, they impact upon some of the later grounds of challenge.

[11]Quite clearly, section 133 provides for a statutory compensation scheme in which the Secretary of State decides whether an applicant has a right to compensation (section 133(3)). If that issue is resolved in favour of the applicant, the independent assessor determines the amount of such compensation (section 133(4)). The only provisions in section 133 which prescribe the approach of the assessor are the description of the compensation in section 133(1) as “compensation for the miscarriage of justice to the person who has suffered punishment” and the requirement in section 133(4A) that the assessor shall have regard to the three matters there listed.

[12]The Secretary of State has issued a document under the title Compensation for Miscarriages of Justice: Note for Successful Applicants, (“the Note”). It is dated June 1997. It is common ground than an applicant whose right to compensation has been established has a legitimate expectation that the assessment of his compensation will be in accordance with that document. The preamble to the document states:

“The payment is made in recognition of the hardship caused by a wrongful charge or conviction and notwithstanding that the circumstances may give no grounds for a claim of civil damages.”

Paragraph 2 describes the independent assessor as a person “experienced in the assessment of damages”. The crucial provision is the first sentence of paragraph 5 which states:

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

It then lists various manifestations of pecuniary and non-pecuniary loss as “factors which may be relevant according to the circumstances.”

[13]The first issue which divides the parties is as to the meaning of “principles analogous to those governing the assessment of damages for civil wrongs”. The case for the Claimants is that wherever there is an analogous principle governing the assessment of damages for civil wrongs, the assessor must apply it and that analogous principles will often exist in the law of damages for personal injury, malicious prosecution, false imprisonment and the like. However, on behalf of Lord Brennan, Mr. Tam makes a different submission. He contends that paragraph 5 does not say or mean that legal rules for the assessment of damages in respect of individual torts must be directly applied. Section 133 is not a surrogate for damages which may be recoverable in tort. It does not depend upon a tort having been committed. Moreover, an award of compensation under section 133 is not a bar to a civil action for damages arising out of the same events. In addition, damages in relation to torts are not always consistent as between different torts and there is also some specific inconsistency between the law of damages and the scheme under section 133. For example, the reduction by reference to a criminal record is made in the latter but not necessarily in the former; campaign costs are allowed in the latter by reference to the wording of the document (“expenses, legal or otherwise”), but may be too remote at common law. All this leads Mr. Tam to submit that there are only two general principles in respect of damages for civil wrongs:(1) that the aim of damages is to put the claimant into the position in which he would have been but for the civil wrong; and

(2) that money cannot in fact equate to a non-pecuniary loss – it is simply the best that a court can do.

[14]In my judgment, 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 enjoin the assessor to apply relevant common law principles wherever they are clear and analogous. I find support for this conclusion in the Northern Irish case of Hegan (unreported, 7 September 2000). Section 133 applies in Northern Ireland and assessments are made in accordance with the Note. Hegan served over eight years in prison for a murder which was later accepted to be a miscarriage of justice. When the assessor came to quantify his compensation he concluded that he should do so on the same basis that he had applied to Hagen’s co-accused, A, some years earlier, notwithstanding the fact there had been “further developments in the case law” in between. Those developments included the increases in quantum illustrated by Thompson v. Commissioner of Police for the Metropolis

[1998] QB 498

and Dodds v. Chief Constable of the RUC [1998] NI 393. However, the assessor took the view that it would be unfair to A, who had acted more promptly, if his co-accused Hegan were to receive a higher award because of a long delay in the particularisation of his claim. Hegan’s award was therefore pitched at a level which disregarded Thompson and Dodds and the levels of damages indicated in the later Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. On Hegan’s application for judicial review, Kerr J identified as a well-established principle that non-pecuniary loss should be assessed according to values current at the date of the assessment. He said (transcript, pp 10-11):

“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.”

That resulted in the quashing of the part of the award which related to non-pecuniary loss.

[15]I am satisfied that the approach adopted by Kerr J is correct and I propose to adopt the same approach in relation to paragraph 5 as I consider Mr. Tam’s submission on this point to be far too narrow. I shall return to the question of whether Lord Brennan erred in his approach to paragraph 5 when I address some of the other grounds of challenge.

Ground 2: failure to break down the award for non-pecuniary loss

[16]This ground of challenge is advanced on behalf of all three Claimants. In the case of O’Brien, his application sought compensation for non-pecuniary loss by reference to loss of liberty simpliciter, damage to reputation, injury to feelings, the consequences of imprisonment, psychiatric injury, misconduct by the police and aggravated damages. In his assessment, Lord Brennan awarded £200,000 for non-pecuniary loss. He itemised £55,000 to be in respect of psychiatric injury, separating it out because it alone attracted interest. Of the balance of £145,000 he said that £125,000 was for consequences of imprisonment and £20,000 for the conduct of the investigation. In the case of Michael Hickey he broke down the gross figure of £250,000 in order to separate out the figure for psychiatric injury (£75,000) for interest purposes and he also specified that £35,000 related to aggravating features of the case. As regards Vincent Hickey, he made clear that £50,000 of the gross £190,000 related to psychiatric injury, again for interest purposes, but did not itemise the balance. In all three cases he declined to accede to requests for a further breakdown.

[17]There is something of a history to this aspect of the case.

[18]During most of Sir David Calcutt’s period as independent assessor, he too adopted the approach which Lord Brennan took in the present cases. However, in the last major assessments made by him before retirement, a review of his earlier assessments in relation to “the Birmingham Six”, Sir David took a different view. It was clearly based on developments in the law of damages apparent from recent decisions of the Court of Appeal between 1997 and 2000 including Thompson v. Commissioner of Police for the Metropolis

[1998] QB 498

and Commissioner of Police for the Metropolis v. Gerald (unreported, 10 June 1998). Sir David stated that he “must accordingly take these (and other) authorities into account”. He referred to the “analogous principles” requirement of paragraph 5, observing that “the problem, in practice, is to determine what those principles are”. He then turned to aggravated damages and the question of breakdown. He said:

“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 Commissioner of Police for the Metropolis v. Gerald; and, accordingly, I accept that I should now follow the suggested practice.”

It seems to me that Gerald is simply an application of the approach previously set out in Thompson, where the Court of Appeal was concerned with the provision of guidelines in civil jury trials involving wrongful arrest, false imprisonment and assault. Giving the judgment of the Court, Lord Woolf MR said (at p516D):

“The jury should then be told that if they consider the case is one for the award of damages other than basic damages then they should usually make a separate award for each category. (This is contrary to the present practice but in our view will result in greater transparency as to the make-up of the award).”

[19]In his Assessment in O’Brien, Lord Brennan referred to various factors which may play a part in the assessment of statutory compensation for non-pecuniary loss but added:

“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.”

In the Hickey assessments, Lord Brennan did not explain his approach in the same way but it is clear that he proceeded as he had explained in O’Brien. However, in all three cases he returned to the subject in the addenda which followed further representations and the commencement of these proceedings. In the case of O’Brien he added:

“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.”

He considered Sir David’s later approach to be erroneous and expressly agreed with his earlier approach. Lord Brennan sought to distinguish Thompson and Gerald on the basis that they were concerned with directions to juries and did not amount to “a considered analysis of how non-pecuniary loss under the present scheme falls to be considered”. Moreover, Thompson itself did not require a breakdown as detailed as the one Sir David had provided in the Birmingham Six case. He was critical of Sir David’s approach whereby he had itemised seven factors, allocated figures to each of them, aggregated the seven figures and concluded that the total was reasonable “when considered in the round”. He considered that such an approach:

“would produce unnecessary complexity, and what I regret to describe as a spurious mathematical framework to an overall assessment. ”

In the addendum in the Hickey cases, he said the same. However, in both addenda, he referred to two qualifications “which may arise, depending on the circumstances of particular cases”. First, it may be appropriate to quantify a sum representing “the aggravating factor in relation to conduct under section 133”. Secondly, the personal injury element should be quantified because it attracts interest.

[20]Miss Williams, supported by Mr. Engleman, seeks to attack Lord Brennan’s approach in a number of ways. At the forefront of her impressive submissions lies the point which seems to me to have been the rationale of Sir David’s change of approach. It is the requirement to apply “principles analogous to those governing the assessment of damages for civil wrongs”. In Thompson, as illustrated in Gerald, the courts were concerned with the most cognate civil wrongs. They established an analogous principle based on greater transparency. Accordingly, Lord Brennan erred in law by refusing to apply it. In response, Mr. Tam relies on his narrow approach to “analogous principles” (which I have rejected) and, essentially, upon Lord Brennan’s reasoning.

[21]In my judgment, Miss Williams has correctly identified an analogous principle which the independent assessor is obliged to apply. The principle 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). Miss Williams has also provided a transcript of a first instance decision of a judge sitting alone on a civil action against the police and applying the Thompson approach: Washington v. Commissioner of Police for the Metropolis (Central London County Court, 31 January 2003, HHJ Michael Dean QC). 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 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 feelings and aggravated damages in discrimination cases and the recent decision of the Court of Appeal in Vento v. Chief Constable of West Yorkshire Police (No2)

[2002] 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.

[22]In his reasoning, Lord Brennan repeatedly refers to the inflationary effect of an itemised approach and the risk of double counting. However, the principle in Thompson addresses that effect and that risk with the warning that:

“the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered.”

Indeed, the need to avoid inflated awards and double counting is referred to in most of the post – Thompson cases. As Mummery LJ said in Vento (at para 68):

“Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damages. In particular, double recovery should be avoided between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.”

I reject the suggestion that this type of breakdown would present the Assessor with an impossible task. That is clearly not the case.

[23]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 decision can be taken 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.

[24]For all these reasons, this ground of challenge succeeds. It was also put on the alternative bases that the refusal to itemise breached

Article 6 of the ECHR

, that it amounted to discrimination by reference to Article 14 combined with Article 6 (because of the more favourable treatment of the Birmingham Six) and that it breached a public law requirement of consistency. I confess to less enthusiasm for these submissions but, in the event, it is unnecessary for me to rule upon them.

Ground 3: aggravated compensation

[25]I shall attempt to subsume under this heading a number of challenges on submissions which have as their common theme the approach of Lord Brennan to aggravating features. As I described earlier, in the case of Michael Hickey there was an itemised uplift by reference to aggravating features but in the cases of O’Brien and Vincent Hickey there was not.

[26]I turn first to the case of O’Brien. Plainly his application raised the issue of aggravating features. In his assessment, Lord Brennan referred to injury to feelings (including loss of dignity, humiliation and despair at the failure of the criminal justice system), damage to reputation and aggravating features, particularly the oppressive manner in which the investigation “may well have been conducted”. The £200,000 awarded in relation to non-pecuniary loss includes £55,000 for psychiatric illness and “a modest compensatory element in relation to the conduct of the investigation of £20,000”. The remainder - £125,000 – is allocated on a non-itemised basis to “the consequences of imprisonment”. This provoked the complaint that, one way or another, Lord Brennan had not grappled with the injury to feelings, damage to reputation and the type of matter which commonly results in an award of aggravated damages at common law on the basis explained in Thompson, namely “aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award” (p516B). Lord Brennan revisited this issue in his addendum:

“I do not accept that this compensation scheme should operate on the basis that misconduct in relation to police investigation or prosecution creates an entitlement to ‘aggravated damages’ to be awarded as 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 create 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 is proportionate to the rest of the award.”

He then expressly dissented from the view of Sir David Calcutt, which he identified as a straightforward application of aggravated damages to the statutory scheme, on the basis that neither “section 133 nor any concept of fair compensation requires this approach” because, by reference to paragraph 5, there is no “analogous principle”.

[27]I hope I do no injustice to Miss Williams’ submission on this issue if I paraphrase it thus: Lord Brennan has stuck too closely to a personal injury analysis, where aggravated damages rarely feature, and by so doing has depressed the award in relation to non-pecuniary loss in a way which ought not to have happened if he had had proper regard to Thompson and the approach of the courts in similar cases. This then gives rise to the further submission that, on the assumption that the £125,000 includes compensation for injury to feelings and damage to reputation, in addition to loss of liberty for over eleven years, the amount for loss of liberty is irrationally low. Alternatively, if it does not include compensation for injury to feelings, damage to reputation and all aggravating features apart from the conduct of the investigation, then it is flawed for that reason.

[28]The “irrationally low” submission is based on the length of the loss of liberty. In Thompson, the guideline was stated to be about £3000 for a person wrongly kept in custody for 24 hours, with a reducing scale for subsequent days. Of course no one is suggesting that it is appropriate to multiply a daily or weekly figure over a period of 11 years. Instead, Miss Williams seeks to draw a comparison with longer periods of unlawful custody such as the award in Lunt v. Liverpool City Justices (unreported, 5 March 1991, CA, where £25,000 was awarded in respect of 42 days’ imprisonment for non-payment of rates) and R v. Governor of Brockhill Prison, ex parte Evans (No2)

[1998] 4 All ER 993

(59 days unlawfully added to lawful sentence: £5000). Once again, no one is contending for a multiplier. Miss Williams’s submission is that, accepting the concept of a diminishing rate, awards in relation to long-term imprisonment should bear some relationship of proportionality and, if they do not, those who have suffered long-term imprisonment will be left with a legitimate sense of grievance by reference to an irrational disproportionality.

[29]There is no doubt that the award of £125,000 includes something in respect of injury to feelings and damage to reputation. Lord Brennan referred to such matters as an “entitlement” in the Assessment. However, they are not separately quantified. Whether, and if so to what extent, that figure includes anything for “aggravating features” over and above those “entitlements” is unclear to me. The addendum rather obfuscates the issue.

[30]All this drives me to the following conclusions:(1) unless and until it is further itemised, it cannot be said that whatever part of the £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 reasons 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 be 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.

[31]So far as Vincent Hickey is concerned, the challenge under this heading, as I understand it, is limited to the failure to itemise the gross £190,000 awarded for non-pecuniary loss, save by reference to the £50,000 which represents psychiatric injury. Lord Brennan has made it clear that he has not made an award for aggravating features in this case because most of his grounds of appeal to the Court of Appeal Criminal Division failed and he succeeded on a single ground related to his alibi. The Court of Appeal rejected his principal ground of appeal that his own confessions to the Police were inadmissible. Mr. Engelman does not suggest that Lord Brennan erred in this regard. 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.

[32]The position in relation to Michael Hickey is different because, in his case, the gross figure of £250,000 in respect of non-pecuniary loss was broken down into psychiatric illness (£75,000), “all factors other than psychiatric illness” (£140,000) and “a moderate uplift for aggravating features” (£35,000). Mr. Engelman submits that the figure of £35,000 is irrationally low. He relies on a passage in Thompson that “in the ordinary way, we could not expect the aggravated damages to be as much as twice the basic damages” (p516F). However, that seems to me to be 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 may 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.

Ground 4: the libel analogy

[33]When considering non-pecuniary loss in the O’Brien case, Lord Brennan had “some”, albeit “limited” help from the false imprisonment and personal injury cases but did not think that 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”. “The recent Court of Appeal approach” is a reference to John v. MGN Ltd

[1997] QB 586

. When Lord Brennan returned to the subject in the addendum, he said that “the actual range of awards in such cases is not of particular assistance in assessing compensation for miscarriages of justice.” Miss Williams criticises this, essentially on the basis that the written submissions to Lord Brennan had contended for a comparison with libel awards and that the rejection of those submissions is unreasoned and irrational.

[34]I do not find this to be a sustainable challenge. Whilst it is true that an award for compensation under section 133 will usually include something for harm to reputation, which is specifically referred to in subsection (4A), it is not its very essence, as it is in a libel case. In the case of O’Brien, Lord Brennan rightly, or at least permissibly, took the view that compensation for non-pecuniary loss should reflect “primarily….loss of liberty, together with compensation for the injury done to his mental health, injury to his feelings (including loss of dignity, humiliation, frustration, helplessness and despair) and harm done to his reputation or standing in the community”. These elements, save for injury to mental health, went to make up that part of the award described as “£125,000 for the consequences of imprisonment”. There is no doubt that Lord Brennan considered whether libel damages are truly analogous. In my judgment it was not irrational of him to conclude that they are not. It is implicit in that conclusion and in the assessment read as a whole that the rationale behind this part of his decision was that to compare compensation for a miscarriage of justice with damages for libel is not to compare like with like, at least partly because of the less central role played by the reputation element in the former. Ground 5:

“saved living expenses”

[35]This ground is relied upon by all three Claimants. Lord Brennan dealt with the point in the same terms in each of the assessments. He said:

“I consider that saved living expenses should be taken into account for the following reasons: …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.”

Lord Brennan then referred to two further “reasons”, those being the effect of Meah v. McCreamer

[1985] 1 All ER 367

and section 5 of the Administration of Justice Act 1982. I shall return to these later. For the moment, I go forward to his further reasoning in the addendum. The relevant passage reads:

“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%….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.”

[36]The first point made on behalf of the Claimants is that Lord Brennan erred when he said that he was applying a principle which “accords with the common law approach”. The case of Hodgson v. Trapp simply established that, in relation to damages for past and future care, attendance and mobility allowances should be deducted because they were to be regarded as available to meet the cost of care generally and thus as mitigating the damages recoverable in respect of the care. Miss Williams submits that the true analogy is to be found in Dews v. National Coal Board

[1988] AC1

, in which Lord Griffiths said (at p 14F):

“When a plaintiff is injured and as a result is paid no wages his immediate real loss is that part of his net earnings that were available for current expenditure. In respect of this part of his earnings the object of which is to provide income for current expenditure the tortfeasor is, subject to sums necessarily spent to earn the income, entitled to no credit for expenditure saved as a result of the injury; the principle that it is no concern of the tortfeasor how the plaintiff chooses to spend his income applies. ”

[37]Mr. Tam does not seek to take issue with that principle in the law of damages. He submits, no doubt correctly, that the development of the law in relation to what is and what is not deductible from an award of damages is often driven by policy rather than logic. He places some reliance on Hunt v. Severs

[1994] 2 AC 350

, although it seems to me that neither the policy nor the logic of that case is analogous to the present case. His central submission is that Lord Brennan’s logic is beyond dispute – to the extent that a prisoner would have spent part of his earnings on living expenses if he had been at liberty, that expenditure has been avoided during his incarceration. Accordingly, it is logical for compensation to take that into account. Moreover, Lord Brennan was entitled to derive support for that approach from Meah v. McCreamer. At the very least, it has not been shown that it was not open to him to decide as he did.

[38]The amount of reliance which can be placed on Meah v. McCreamer for present purposes, is very limited indeed. What it rests on is no more than a concession by counsel in that case. Woolf J said (atp383F):

“So I approach this case on the basis that there is no continuing financial loss as a result of his being in prison, that being the manner in which, as I understand it, the case was presented by counsel for the plaintiff.”

Lord Brennan took comfort from the eminence of counsel who put the case in that way. Counsel in the present case have diligently obtained the recollection of counsel for the plaintiff in Meah. I do not think that I should consider that to be of more than archaeological interest.

[39]In my judgment, it is inescapable that, when Lord Brennan decided to discount for saved living expenses, he believed that he was applying a common law principle. However, because Hodgson v. Trapp does not in fact support the principle and because Dews v. National Coal Board is authority for a contrary principle (and is House of Lords authority postdating Meah v. McCreamer), I have to conclude that he misdirected himself as to the common law. By the time he came to revisit the point in the addendum, he had been referred to Dews. However, what he said by way of further explanation does not suggest that he was abandoning his erroneous belief. I infer that it was probably continuing to influence his approach. For these reasons his decisions in all three cases relating to saved living expenses must be quashed.

Ground 6: deduction for “criminality”

[40]Section 133(4A) requires the assessor, when assessing the part of the compensation attributable to “suffering, harm to reputation or similar damage”, to have regard to“….(c) any other convictions of the person and any punishment resulting from them”. This does not arise in the case of O’Brien who had no convictions. However, it was an issue in relation to both Hickeys. On the occasion when he was convicted and sentenced in relation to the murder of Carl Bridgewater, Michael Hickey was also sentenced for two offences of robbery during which a firearm had been used. For those, he received a concurrent sentence of twelve years’ detention. Lord Brennan said:

“Michael Hickey was a month short of his eighteenth birthday at the time he was convicted. However, by that time he had already been convicted on five previous occasions of offences of dishonesty, burglary and driving offences, for which he had variously been fined and made the subject of supervision orders. I note from his mother’s statement that two of the offences of dishonesty were of a particularly nasty type, committed within his own family. I am ready to disregard the conviction for shoplifting that occurred after his release in 1997. However, most seriously, there are the two convictions for robbery committed with a firearm. Whilst he was very young at the time, there were two offences, as against only one for Vincent Hickey. The sentence I have accepted would have been passed of eight years is the absolute minimum that would be expected, even at this age, for such crimes. There is no responsible basis upon which such serious convictions can be ignored in the assessment of non-pecuniary loss. In the circumstances, I make a reduction of 20% in respect of such matters from the total award of non-pecuniary compensation. This is slightly less that Vincent Hickey because of age and different record.”

[41]In 1979, Vincent Hickey pleaded not guilty to the one armed robbery with which he was charged (that is, one of the two for which Michael Hickey was sentenced) and it was ordered to lie on the file. However, during the appeal hearing in 1997, he admitted through his counsel that he had been a participant in that offence. Lord Brennan concluded that if Vincent Hickey had been sentenced for that offence in 1979, absent the murder conviction, he would have received a sentence of eight years imprisonment. Lord Brennan referred to the gravity of that offence and added:

“Vincent Hickey had pleaded guilty to obtaining by deception at the 1979 trial….In addition, he has seven other convictions between the age of 15 and 25, when he was convicted of these matters. These convictions involve some 13 offences, including dishonesty and burglary, assaults and driving whilst disqualified. For these offences he was variously fined, sent to a Detention Centre, and given a suspended prison term. I regard his previous convictions as significant, occurring as they did during his adult life, as well as when a youth. Prior to the present convictions he had been most recently convicted at St Albans’s Crown Court on 24 November 1978, when he received a suspended sentence. The [robbery] was a very serious crime and its occurrence marked the culmination of significant criminal behaviour by this applicant. Having regard to the seriousness of these matters and in particular the robbery….I firmly conclude that the non-pecuniary loss award should be subject to a deduction of 25%. This I regard as the very least deduction than can reasonably be made, having regard to his criminal behaviour.”

[42]The first point advanced by Mr. Engelman is one of statutory interpretation. He submits that section 133(4A) does not permit a deduction from all categories of non-pecuniary loss simply because of the words “…or similar damage” and that deduction can only be applied to damage which is similar to “suffering” and “harm to reputation”. He accepts that, for example, personal injury and injury to feelings are so “similar” but contends that damage arising from misconduct by the authorities, the fact of loss of liberty and aggravated damages are not and that they cannot therefore attract the deduction. I am wholly unpersuaded by this and 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. No other construction is justified by the context.

[43]It is the second of Mr. Engelman’s submissions under this ground of challenge that calls for closer examination. It is to the effect that there is an unacceptable inconsistency between the deductions made by Lord Brennan from the awards in the cases of Michael Hickey and Vincent Hickey when compared with the deduction of 10% made by Sir David Calcutt in the case of their co-accused James Robinson. Like Michael Hickey, Robinson pleaded guilty to the two offences of armed robbery. In his case the concurrent sentences were of fifteen years imprisonment. In addition a six month suspended sentence for burglary was activated. Sir David said:

“So far as other convictions are concerned, there is, unfortunately, a long criminal record in the case of Mr. Robinson. Whilst he was in Australia, he was convicted on several occasions between 1954 and 1958 of several offences of breaking and entering, larceny, the illegal use of a motor vehicle, in respect of which he received suspended sentences of imprisonment, fines, effective imprisonment and hard labour. On his return to this country, he was, in 1966, convicted of factory breaking, burglary (in respect of which he was sentenced to three years imprisonment), going equipped for theft, criminal damage and burglary, theft and taking a motor vehicle without lawful authority (in respect of which he was sentenced to a term of imprisonment which was suspended). Mr. Robinson is entitled to point out that, prior to his conviction in November 1979, he had never previously been convicted of any offence involving personal violence. He is also entitled to point out that he had never previously received a sentence as lengthy as any of the sentences which were passed on him in November 1979. But there are also several other matters which have to be borne in mind. First, he is not in the position of an applicant for compensation who can claim that it was their first experience of imprisonment. Nor can he claim that he had not previously experienced a significant term of imprisonment. But he is also entitled to point out that the circumstances of his imprisonment, as a result of his conviction for murder, his treatment, both by the prison staff and by his fellow inmates, was of a totally different order from the treatment which he had experienced previously or which he would have experienced had he simply been convicted of the robberies. There must be, in my view, some reduction of the level of compensation which would otherwise be payable, for non-pecuniary losses, but, in the circumstances of this case I take the view that the reduction can be comparatively modest.”

[44]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.

[45]Although Lord Brennan did not refer to the Robinson deduction in his assessments in the Hickey case, he did so in the addendum when responding to the representations which had been made. He said:

“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) – see: R v. Secretary of State for Northern Ireland, ex parte Hegan…..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 section 133(4A). Consistency between mine and Sir David’s assessment is an elusive concept if it is interpreted to be necessary from me where Sir David’s conclusion was favourable to an applicant, but when it was unfavourable I should be free to adopt a different approach.”

[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 – age at the time (17 and 24 as against 45), previous records and experiences of imprisonment, and the fact that Vincent Hickey had been involved in one rather than two armed robberies.

[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 a later sentencing judge who considers that the earlier sentencing judge was too lenient in relation to the indistinguishable co-accused. He simply disagreed with the 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 rests on the fact that deductions which were permissible in all other respects compare unfavourably with a more generous approach by a different assessor to a co-applicant. It follows that this ground of challenge fails.

Ground 7: financial advice

[49]This ground of challenge is advanced on behalf of Vincent Hickey and is sought to be advanced by way of amendment on behalf of O’Brien. It does not arise in the case of Michael Hickey whose position is safeguarded by the Court of Protection. The submission is that Lord Brennan fell into legal error when he rejected claims for compensation to include an amount in respect of the cost of independent financial advice concerning the investment of the large sums of money which the awards of compensation place in hands inexperienced in investment. In the case of Vincent Hickey, Lord Brennan said:

“I regret to conclude that an award for the cost of future investment advice cannot be made because: a. The current rate of interest for the calculation of multipliers at 2.5% is based upon investment in gilts and therefore at the lowest risk to the investor/claimant. b. The Lord Chancellor’s reasons in concluding that 2.5% should be the current rate make it clear that it is open to a claimant or this applicant to invest in equities as well as gilts, in so far as that produces a better return, so to benefit in addition to the lower rate of 2.5% multiplier which the new change produced. c. The applicant is neither a patient nor a minor and therefore is not in a category which the law presently recognizes as justifying compensation in respect of investment costs.”

He revisited this reasoning in greater detail in the addendum, in which he referred to recent authorities on the law of damages, including Wells v. Wells

[1999] AC 345

. a. The current rate of interest for the calculation of multipliers at 2.5% is based upon investment in gilts and therefore at the lowest risk to the investor/claimant. b. The Lord Chancellor’s reasons in concluding that 2.5% should be the current rate make it clear that it is open to a claimant or this applicant to invest in equities as well as gilts, in so far as that produces a better return, so to benefit in addition to the lower rate of 2.5% multiplier which the new change produced. c. The applicant is neither a patient nor a minor and therefore is not in a category which the law presently recognizes as justifying compensation in respect of investment costs.”

[50]The case for Vincent Hickey is that, understandably, he lacks financial expertise and the ability to make the best investment decisions in relation to a six figure sum. In these circumstances, Lord Brennan fell into legal error when he refused to award a sum by reference to the cost of financial advice. Mr. Engelman draws attention to a determination of Sir David Calcutt in the unrelated case of E in which Sir David accepted that the applicant needed financial advice and made a substantial award towards the cost of it. He further submits that appropriate advice is needed at this stage for a varied portfolio to enable even 2.5% to be achieved. Although he was able to point to dicta in a number of authorities, he was unable to establish a principle in the current law of damages to the effect that, in comparable circumstances, independent financial advice to a claimant who is neither a patient nor a minor is recoverable. Absent such a principle, I do not accept that Lord Brennan fell into legal error when he rejected this aspect of Vincent Hickey’s claim.

[51]So far as O’Brien is concerned, this ground of challenge was foreshadowed in correspondence but not in the claim form and Miss Williams seeks permission to amend and to apply. I grant permission for both. There is evidence that O’Brien has been profligate and imprudent, indeed disastrously so, with his interim payments and this, it is submitted, points to the necessity of financial advice . However, that is not the issue. The issue is whether it was legally erroneous to reject the cost of such advice as a subject of compensation. In my judgment, it was not.

Ground 8: counselling costs in relation to Michael Hickey’s mother

[52]The claim on behalf of Michael Hickey included an item in the sum of £589 representing counselling costs incurred by his mother arising out of his imprisonment. Lord Brennan rejected this item stating that “it is not open to me to make any award in respect of counselling expenses incurred by his mother…..as neither under this scheme or at common law can such third party expenses be recovered. ” In the addendum he said:

“Section 133 provides for compensation to the person who ‘has suffered punishment’….There is no provision for compensation to relatives or third parties in respect of their suffering or its financial consequences to them in particular as to the cost of medical treatment.”

Mr. Engelman relies on paragraph 5.1(d) of the guidance Note which includes among factors which may be relevant according to the circumstances “additional expenses incurred, e.g. for travelling, in consequence of detention, including such expenses incurred by the claimant’s immediate family.” He also submits that the rejection of these counselling costs in inconsistent with the approach to other items such as campaign and travel costs incurred by others. Thus, the award in Michael Hickey’s case included £35,000 and £15,000 for campaign and travel costs and Lord Brennan referred to the £35,000 as “fair recompense to his mother”. His thinking can be observed more fully in the Vincent Hickey assessment where he described campaign costs as “being recoverable on the basis that this is a wholly exceptional case in which the campaigning was long and arduous and eventually had a beneficial result”, adding “the award is not made on the basis that it recompenses directly those who have incurred the expense. Rather, the award is to the applicant….on the basis that he will be expected to make recompense to those who had so campaigned and met expenditure in acting on his behalf.” (My emphasis)

[53]I do not consider that campaign costs are analogous. They are incurred on behalf of the victim of the miscarriage of justice and are provided for in the Note by the reference to “any expenses, legal or otherwise, incurred by the claimant in reversing his conviction”. Travelling expenses for the immediate family are also provided for in paragraph 5.1(d).

[54]If an immediate family member’s counselling were to be recoverable, upon what basis could the independent assessor refuse to compensate such a family member in respect of the enormous loss and damage resulting from a long-term breakdown in mental or physical health which was caused by the conviction? Whilst one sympathises with family members who undoubtedly suffer greatly by reason of the unjustified imprisonment of one of their own, there must be limits to the extent to which this scheme is required to compensate. In my judgment Lord Brennan was correct to limit the award by reference to expenditure incurred in acting on behalf of the Claimant. I agree with the relevance of his observation that section 133 refers to compensation “for the miscarriage of justice” and provides that such compensation should be paid “to the person who has suffered punishment” as a result of the conviction. He was right to conclude that the mother’s counselling costs were not recoverable under the scheme. They are not recoverable by reference to “principles analogous to those governing the assessment of damages for civil wrongs”. In seeking to argue to the contrary, Mr. Engelman relies on Jarvis v. Swan Tours Ltd.

[1973] QB 233

but that involved a contractual claim and a context as far away from the present one as it is possible to imagine.

Ground 9: interest on pecuniary losses

[55]This ground of challenge is sought to be advanced by Mr. Engelman on behalf of both Hickeys. I say “sought to be” because it did not form part of the applications as originally pleaded and it cannot be advanced without permission to amend. Notwithstanding that Mr. Tam objected to such amendment, I grant permission. If the point is not resolved in this case, it will probably arise in another and clarification at this stage would be beneficial. Moreover I do not accept that Lord Brennan has not had a chance to deal with the point. It was in issue before him and he resolved it against the Hickeys in his assessments. The fact that it was not raised again between the assessments and the addendum does not dispose me against granting permission.

[56]The point is a simple one. The case for the Hickeys is that the correct approach to the calculation of interest is to apply the method customarily applied by the courts in personal injury cases, that is one half of the High Court short term investment account rate, as set out in Jefford v. Gee

[1970] 2 QB 130

. However, Lord Brennan rejected this in favour of a different approach recommended by Robson Rhodes, the firm of forensic accountants instructed by the Secretary of State to produce a report for the assistance of the independent assessor. In his assessment in the case of Michael Hickey, Lord Brennan said:

“I accept and agree with the approach set out in the Robson Rhodes report. I do not think the personal approach of half the annual court rate is appropriate in this area of compensation for victims of miscarriages of justice.”

There is a corresponding passage in the case of Vincent Hickey, to which Lord Brennan added:

“Whilst the interest figure so produced is less than the personal injury rate, it nevertheless provides a substantial compensatory element and is fair in the assessment of compensation.”

The reasoning of Robson Rhodes, which I infer was adopted by Lord Brennan, is contained in this passage:

“…..in my experience of similar long tail claims interest calculated by reference to the year in which each loss arises is a more appropriate method as it calculates interest for each year’s losses up to the present day. The half rate approach was adopted in Jefford v. Gee because interest was not large enough to warrant minute attention to detail. The half rate was considered to give a reasonable approximation. This is not the case with long tail claims. In [Michael] Hickey’s claim interest is not minute…..as claimed it represents 95% of the past loss claimed. In my opinion it does not give a reasonable approximation. For example for loss of earnings the half rate results in the higher rates of interest in the 1980s being applied to losses which are weighted towards the 1990s. This is not equitable.”

[57]Mr. Engelman’s submission is that it is not open to an independent assessor who is required “to apply principles analogous to those governing the assessment of damages for civil wrongs” to depart from the principle established in Jefford v. Gee. He points out that the principle is applied in, for example, asbestosis cases which have similar “long-tail” features.

[58]If the principle in Jefford v. Gee were an invariable and inflexible rule, Mr. Engelman would be on unassailable ground. However, as Mr. Tam observes, what Lord Denning MR said (at p147a) is that the principle would produce fairness “in all ordinary cases”. I apprehend that, in the field of personal injury litigation, there are cases in which the principle in Jefford v. Gee is not applied because they are not “ordinary cases” in which the special damages “comprise more or less periodical losses which are continuous from the date of the accident to the date of the trial…more often than not lost earnings” (May LJ in Prokop v. DHSS, CA. unreported, 5 July 1983: see also Kemp and Kemp, The Quantum of Damages, paras 16-019 – 16-022).

[59]In the present case it is readily apparent that the awards in relation to past pecuniary loss in respect of both Michael and Vincent Hickey form much the greater parts of the awards under this heading. The remaining ingredients are smaller and in some cases could not be fixed as representing particular amounts in particular years. This is expressly so in relation to, for example, campaign expenses.

[60]In my judgment, an independent assessor must be free to depart from the Jefford v. Gee principle, just as the courts sometimes do in personal injury cases, where the remorseless application of its arithmetic would produce a result which would be unfair to one side or the other. There is no doubt that Lord Brennan considered that to be the case here. The question therefore becomes: was that a rational conclusion? I consider that it was. The Robson Rhodes report identified and explained the unfairness which would flow from the application of the Jefford v. Gee principle. Lord Brennan adopted that reasoning. Mr. Engelman has not demonstrated any flaw in it. He simply contends for Jefford v. Gee on the basis that there is no reason to depart from it. As a reason has been advanced and has not been exposed as fallacious, it has not been established that Lord Brennan acted irrationality in relation to interest.

Conclusion

[61]This is a lengthy judgment in a multi-faceted case in which no party has been wholly successful or wholly unsuccessful. This may raise difficult questions in relation to relief and costs. If they can be resolved by consent or after brief submissions, that can be done on the occasion when the judgment is handed down. If, on the other hand, they will require longer submissions, they will have to wait until the first week of next Term.

[62]Finally, and as a postscript, I feel it right to say that I have considerable sympathy with Lord Brennan in this case. It seems to me that many of the difficulties arose because of the not entirely helpful way in which section 133 and the Note are expressed. To identify and apply analogous principles, transplanting them from adversarial litigation to the rather inquisitorial, or at least non-adversarial, context of an assessment under section 133 is by no means easy. It may well be that a degree of clarity might be brought to bear if the Secretary of State were to rewrite the Note so as to promulgate clear guidance in the light of recent developments in the law of damages and a coherent policy as to the relationship between the statutory scheme and civil causes of action. At the moment, the scheme seems to be based on the common law, thereby suggesting that one of its aims is to obviate the need for civil actions but, on the other hand, it is made clear that civil causes of action may still be pursued.