AT & Ors v Dulghieru & Anor [2009] EWHC 225 (QB)

[2009] EWHC 225 (QB)Case No HQ07X03535
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/02/2009
Before
THE HONOURABLE MR JUSTICE TREACY
Between
AT, NT, ML, AKClaimantsGAVRIL DULGHIERU and TAMARA DULGHIERUDefendants
Mr Faisal Saifee (instructed by Luqmani Thompson & Partners) for Claimants for Defendants not appearing or representedHearing Hearing dates: 19 – 20 January 2009
Judgment
[1]The four Claimants in this action are young women in their twenties who are all nationals of Moldova. They now live in the United Kingdom. Their claim is based on their allegation that they are victims of an unlawful conspiracy to traffic them into the United Kingdom from Moldova for the purposes of sexual exploitation and prostitution. The two Defendants were significant players in that conspiracy and each of them has been convicted of criminal offences and sentenced to long terms of imprisonment. They are married to one another. There was plainly a number of other co-conspirators whose identities are presently unknown to the Claimants.[2]The hearing before me was for an assessment of damages. The Defendants have had notice of the hearing. They have been served with an assessment of damages hearing bundle. The First Defendant indicated that he would not attend or be represented at the assessment hearing. No response has ever been received from the Second Defendant despite being notified pursuant to an order of this court and being required to indicate her position. Neither party was in fact present or represented before me at the hearing.[3]The Particulars of Claim allege an unlawful conspiracy to traffic the Claimants and to sexually enslave them between February and July 2003. The particulars of that conspiracy include the making of false representations to cause the women to travel from Moldova to the United Kingdom, and, after their arrival, false imprisonment at brothels and other premises, sexual battery by causing them to have sexual relations with third parties, assault by threats of significant violence to themselves and to their families in Moldova, and harassment.[4]Much of the factual background to this case is common to all Claimants. They all come from Moldova. Each of them was tricked into leaving Moldova so as to come to the United Kingdom. Each thought they were coming to the United Kingdom for the purpose of working as a dancer. In reality the conspirators intended to sexually enslave the Claimants by keeping them captive in London and putting them to work in brothels for the conspirators’ own financial gain, irrespective of the wishes or protests of the Claimants. It is quite apparent from the evidence that the Claimants were not the only unfortunate women in this position.[5]In early 2003 one of the Defendant’s agents in Moldova indicated that work could be found for the Claimants as dancers in England. They were told that the agency would be paid from their English earnings and so there was nothing for them to pay initially.[6]Each of them then travelled to England. It is unnecessary to go into the detail, but the journey was a complicated one across Europe. It involved the Defendant’s agents taking increasingly firm control of the young women, taking away their legitimate documentation from them, and providing them with false documentation to enable them to enter the United Kingdom. There was an element of coercion in this process. Once in this country, each of the Claimants was effectively under the control of the Defendants or their agents. They were kept in a locked basement flat in Earls Court and kept captive there.[7]Their own safety was threatened if they failed to co-operate, as was the safety of their families in Moldova. Additionally they were repeatedly told that if they were found by the police they would be arrested and eventually deported. By reason of the various threats made, the women under the direction of the Defendants and their agents gave false details in their encounters with the immigration authorities.[8]That flat was used as a base from which the Claimants were taken to brothels, where they were forced to work as prostitutes. Each was told that they were heavily in debt to the criminal agency. More than one was told that they each had to repay a bond of £20,000.00 to their captors. More than one was told that they owed their captors a rent of £300.00 a day. Accordingly they were required to have sex with men at the direction of their captors in order to repay their alleged debt and to make good their rent.[9]Each of them had large numbers of sexual encounters with men. These encounters were at the direction of the Defendants or their agents and took place without the consent or agreement of the Claimants whose upset, distress and reluctance was made all too plain, but was cruelly and harshly overridden by the perverted greed of their captors who sought only to use them as instruments for their own profit.[10]In June 2003 the Claimants managed to escape from their ordeal and eventually the two Defendants were arrested and successfully prosecuted. The First Defendant pleaded guilty to charges brought against him but not until after the First Claimant, AT, had given evidence at his trial. The Second Defendant fully contested her guilt but was convicted by the jury. They received nine years and five years imprisonment respectively.[11]Each of the four Claimants gave evidence before me. Each confirmed the truth of a witness statement they had made and each gave some additional oral evidence. I accept the evidence which these young women gave as being truthful. The continuing harmful effects from their ordeals were still apparent to me. Although I have already summarised the overall features of the case common to all four Claimants, I think it right to provide a summary of the evidence of each. This summary reflects what I accept as truthful and accurate evidence.[12]There was not been cited to me any case comparable to this one. Such examples as there are of damages relating to sexually related misconduct involve acts by one individual against another generally over a relatively short period. False imprisonment generally arises in different circumstances to these. AT[13]The First Claimant, AT, was born in Moldova in 1982. On her journey across Europe under the supervision of the Defendants agents she became increasingly anxious as they took increasing control. On arrival in England she was held at the flat in Earls Court. She was not free to leave. It was clear that the other occupants of the flat were very frightened. The Defendants or their agents maintained this atmosphere of fear and control. On the first occasion AT was taken to a brothel, she was so frightened that she could not speak.[14]From then on she sank into a period of deep depression. She would feel ashamed about herself, was repeatedly trembling, shaking and crying. She felt as if life was not worth living. Although she argued and showed distress on a daily basis to her captors, they ignored her, shouted at her and abused her as a whore. She was taken to a particular brothel in Greek Street once a week. There she would have to have sex with thirty to forty men on each occasion. On the first occasion after working there she had to be taken to hospital and given painkillers. She found the pain sustained from her sexual ordeals unbearable. She felt as if she had “been split apart” and thought of suicide.[15]The Greek Street brothel was known to some of the women as “the slaughter house” because of the intensive nature of the sexual activities which the girls were forced to perform. The customers at the brothels were frequently verbally abusive and on occasions physically violent. AT had to provide a range of humiliating and degrading sex acts including oral sex and anal sex. She was made to work even when menstruating. All of this went on for a period of about two months before her escape. Since that time AT has been seriously affected by her ordeal. Even now she suffers nightmares about her ordeal, about twice a week. She feels unsafe if she is out in the street. She feels constantly as if someone is after her and is unwilling to go into the centre of London.[16]She is not currently in a relationship but has had a boyfriend since her experiences. She was frightened of a sexual relationship and found sexual relations painful. She would find a relationship with a boyfriend difficult to have and sustain because of what has happened to her. She wants to forget what has happened to her but finds it difficult to do so. She has not returned to her native country since she escaped as she is afraid that if she did so she would be seen or tracked down by associates of the Defendants. She also fears that if she returned to Moldova it would place her family at risk, in line with threats which were made to her during her captivity. AT is, however, in telephone contact with members of her family in Moldova. She is working some two days a week and spends the rest of her time as a student. In her witness statement AT says that during her captivity “I began to lose part of my humanity.” She was concerned that she would never get it back. It is clear to me that well over five years since these events this young woman is still significantly affected by what happened to her. There was before me a report from Dr Monica Thompson, a single joint expert, who diagnosed AT in May 2007 as suffering from chronic post traumatic stress disorder and from symptoms typically found in a severe depressive disorder. I accept the content of that report. AT also described to me in the course of her evidence that she currently visits her General Practitioner about twice a month. That is because she suffers from pain. She says she has a problem with her ovaries. That is treated by painkillers. There is no medical evidence before me that any gynaecological problem of this sort has been caused by what happened to AT in 2003. Mr Saifee, Counsel for the Claimants, has not invited me to include this aspect of the matter in my assessment of damages and I do not do so. NT[17]NT is the Second Claimant. She was born in Moldova in 1984. She was frightened after her arrival in England when she realised that something was seriously amiss. She wanted to get out of the flat but couldn’t. When she was taken to a brothel for the first time she was horrified and in shock. She was ashamed at being required to dress in scanty clothing and after the first sexual encounter felt completely violated and ready to die. The experience was humiliating and degrading. No matter how often she washed, she felt dirty and unable to cleanse herself.[18]The first experience was numbing for her and the first day in the brothel left her in severe pain and unable to walk properly. The requirement to indulge in oral sex and other unwelcome sexual practices increased her feeling of shame. NT had sex with about ten men each day but twice a week she was taken to another flat, where she was required to have sex with forty to fifty men each time.[19]After her escape she found it very difficult to disclose what had happened to her to anyone else and continues to feel like that. She still feels insecure when out in the street. She tends to stay near her home because she feels frightened. She has found forming relationships with men since her ordeal difficult. She feels she cannot trust a man. The past comes into her mind and she continues to feel that it will be difficult to form a relationship. She is worried that if her parents find out what has happened to her, that she would be disowned. She considers her life has been changed forever. She has not returned to Moldova. She is frightened of the potential consequences for her and her family if she should return. She is in phone contact with them.[20]NT works in a restaurant for some twenty two and a half hours per week. But otherwise does not go out a great deal. She said to me that it was hard for her to explain what had happened to her and how she felt about it. “No one can imagine how it was.”[21]Dr Monica Thompson has reported on NT in June 2007. She describes her as suffering from chronic post traumatic stress disorder and suffering from symptoms typically found in a moderate depressive disorder. I accept NT’s evidence as to what happened to her and as to the continuing effects upon her life. I accept the diagnosis of Dr Thompson as accurate.[22]NT told me that she suffers from gynaecological problems and sees a doctor for them every two or three months. She said that she suffers pain which is treated by tablets. In the absence of any medical evidence showing a causal link between NT’s experiences and these complaints, I do not consider that she has established the necessary proof to entitle her to an award of damages for this particular aspect. ML[23]ML is the Third Claimant. She was born in 1983. By the time she reached France on her journey to England, she was fearful and anxious. She expressed her misgivings but was told that if she did not co-operate AT and NT would suffer. She was locked in a hotel room in Paris and taken to the Eurostar station the following day. She was taken to the Earls Court flat and threatened with the consequences for her and her family if she did not co-operate.[24]Her captors arranged for her to go to the Home Office with a false story which they had told her to memorise, explaining her presence in the United Kingdom. The result of this was that she was arrested. She was held at Oakington Reception Centre for about six weeks until she escaped from there. Whilst there she felt obliged to maintain the false story she had been provided with out of fear of the consequences to her if she disclosed the truth. Having escaped she contacted one of the Defendants’ associates as a means of finding out what had happened to the other Claimants. She was picked up and taken to a flat in London where it became clear that she was expected to work as a prostitute. She was threatened. She was told that it was not possible to escape from the flat and that there were cameras inside and outside. She was also told that any conversations she had were being tape recorded. She realised that she was powerless. This realisation was devastating for her. She found the situation totally degrading and terrifying. The prospect of selling her body was appalling. She was shown a menu of different sexual activities with prices, covering activities such as oral sex, masturbation, “69”, anal sex, urination and so on. This increased her feelings of degradation. This menu or price list was something to which other Claimants referred.[25]Once the process of having sex started, she was deeply affected by it. Sometimes she had sex with thirty to forty people a day. She was forced to work even when menstruating. She said she felt as if she was in hell.[26]She continues to be affected by her ordeal. She described to me to feeling scared when she goes out; most of the time she has to have somebody with her. She’s frightened of meeting the traffickers. She has had a boyfriend since these events but the relationship did not last. She was reluctant to have sex with him and he became angry when he saw a solicitor’s letter about this litigation. She is concerned that she may be unable to have a relationship and that she will not have children. She says she suffers from gynaecological problems and from dizzy spells but there is no medical evidence to provide any causal link between these difficulties and what happened. Again Counsel agrees that I should leave this aspect out of account.[27]ML told me that she suffers from bad dreams relating to her ordeal, about two or three times a month, sometimes more. She said she frequently thinks back to what happened and when she does so she feels awful. She is reluctant to talk to anyone else about her past. She would only tell people such as her doctor if she has to.[28]ML has worked in various jobs on a full time basis but stopped working in August 2008 because she was feeling unwell. In common with the others, she has not returned to Moldova for the same reasons they give, but is in phone contact with her family.[29]Dr Thompson diagnosed ML in April 2007 as suffering from chronic post traumatic stress disorder and also as suffering from symptoms typically found in a moderate depressive disorder. I will summarise what Dr Thompson said about ML, when she examined her, as illustrative of the position in all four cases. In March 2007 Dr Thompson found that ML still suffered from vivid intrusive images of being forced to have sex with men. She avoided sexual contact with men as it reminded her of her previous experience and caused her significant distress. She experienced dissociative symptoms in the form of flashbacks. She experienced problems falling asleep almost every night and suffered from nightmares. She experienced anger and irritability. She also experienced a strong startle reaction when she heard any unexpected noise. She experienced tearfulness and feelings of hopelessness and guilt, and believed what had happened to her had ruined her future. As I say those findings were typical of the consequences for each of these four young women. Again I accept the evidence of Dr Thompson as well as that of ML in relation to her experiences and their effect upon her. AK[30]AK was born in 1979. She felt anxious and scared during parts of her journey to the United Kingdom but became frightened once she reached the flat in Earls Court. She was forced to give a false story to Home Office officials. The story was one she found degrading. It involved her being a lesbian.[31]When she was taken to the brothel she was trembling and terrified. She was screaming and crying, saying she could not work. She felt very ashamed of the idea of having sex for money. The sex was very painful. She realised she had no choice in the matter. Every day felt “awful”. She could not sleep when she wished to. She was only allowed to eat once a day and never sweets or chocolates. She had to keep working, even when menstruating. One customer offered to help her but she refused. She had become paranoid and thought that a trick was being played and she was too frightened to trust him. On one occasion a man’s condom split and she saw something that she thought was blood. She was taken to a private clinic as she was concerned that she had been infected. She describes the frequency of sex as being up to thirty men daily in one brothel, and up to fifty a day in two other brothels.[32]Like the others, she doubts if she will ever forget her experience. She still thinks about what happened. That makes her feel bad and scared. She never goes out on her own. She has since met a boyfriend, married him and had a baby with him. She does not work but looks after her child. It is clear that her past has affected that relationship. She told me that she gets stressed and nervous when he is about to make love. She is reluctant to make love but sometimes feels she has to let him. She has been unable to tell her husband about what happened to her. In evidence to me she felt unable to say more about the effects of her past upon her because she felt too “shy” to talk about it.[33]She has not returned to Moldova for the same reasons as the others, even though she has a child there. She is contact with her family by phone.[34]Dr Thompson diagnosed AK in April 2007 as suffering from chronic post traumatic stress disorder and suffering from symptoms typically found in a moderate depressive disorder. I accept Dr Thompson’s evidence as well as that of AK as to her ordeal and the effects of it upon her.[35]In her witness statement, AK estimates that she spent three and a half weeks at the flat whilst being forced to work as a prostitute. However in evidence to me, she put the period as being some two months. Having reviewed her witness statement and the history of events which she gives including her journey across Europe with other Claimants and what happened after her arrival in this country, it appears that there was a delay before she started working as a prostitute, perhaps because of complications involving Home Office officials. Accordingly I find that her involvement in prostitution was for a period of about a month, whereas the period for which she had been held against her will was for the longer period of two months.[36]Taking stock of the collective experiences of these four Claimants, it seems to me that their experiences are broadly comparable. The only material differences, which in my judgment need to be reflected in the assessment of general damages, are set out below.[37]In the cases of ML and AK, their actual exposure to unwanted sexual encounters was of about one month’s duration, whereas in the cases of AT and NT, their exposure was for about two months. Within those different time frames the frequency and the nature of sexual activity required of each Claimant appears to me to have been on the same level in each case and the experience to have been equally abhorrent. While some differentiation should be made for the shorter period to which ML and AK were exposed, the reality must be that the earlier stages of these encounters would have had the greatest effect upon the victims. Accordingly I think the correct approach is to make some allowance but not to treat it on a mathematical basis, by for example, dividing any notional sum in half.[38]Another area of difference in the cases is that AT was assessed as suffering from symptoms typically found in a severe depressive disorder, whereas the other three were assessed as having symptoms of a moderate depressive disorder. In each case the victims’ lives continue to be affected in the way in which they describe. AT was more severely affected than the others. It is plain that each of them continues to suffer the consequences of what happened and will do so for a reasonable period of time to come. This aspect of the matter includes feelings of insecurity and difficulty in forming or maintaining relationships.[39]Finally, the case of ML differs from the other three in that by reason of her arrest and detention at Oakington, her period of false imprisonment at the hands of the Defendants was for a period of approximately one month, whereas the others were falsely imprisoned for about double that time.[40]Mr Saifee did not submit that beyond the matters which I have identified that there were any other matters of factual difference between the individual Claimants cases.

Pain, Suffering and Loss of Amenity

[41]My approach under this heading is to look at the matter globally for the various elements which are reflected, namely post traumatic stress disorder, coerced sexual activity and false imprisonment.[42]In each case a diagnosis of chronic post traumatic stress disorder was made, and as noted symptoms were diagnosed of a type found in a severe or moderate depressive disorder. The best guidance in relation to this aspect is to be found in the JSB Guidelines For The Assessment Of General Damages In Personal Injury Cases (9th Edition).[43]Having regard to that, it appears to me that AT falls within the moderately severe categorisation under the heading Post Traumatic Stress Disorder. Nearly six years after the event, AT is still affected in the way I have described. It is likely that those effects will last for the foreseeable future and will have a significant affect upon her life.[44]In the cases of NT, ML and AK, I consider that the appropriate categorisation is the moderate category. There are undoubtedly continuing effects of what happened, but they are not grossly disabling, albeit they have significant impact on the lives of these women. Again I have regard to the time which has elapsed without those effects resolving, and I take the view in these cases that the effects will continue for some time to come. In this respect there is no distinction to be drawn between any of the latter three Claimants.[45]I have been referred to Griffiths v Williams (Court of Appeal 21 November 1995 unreported), where the Defendant landlord demanded rent arrears and said that if the Claimant did not do what he wanted he would evict her from her flat. He forcibly raped her and then fought a criminal trial, alleging that sexual relations had been consensual and calling witnesses to blacken the Claimant’s character. The Court of Appeal upheld a jury award of £50,000.00 for that single incident of rape followed by harassment of the Claimant and a trial in which many untrue allegations had been made against her. It is plain from the judgments of the court that that sum of £50,000.00 included an element of aggravated damages.[46]I have also been referred to Lawson v Glaves-Smith (Executor) [2006] EWHC 2865 (QB). This was a case where Eady J found that the Claimant had been “constrained by the apprehension of violence and …falsely imprisoned” from the afternoon of the 23rd of December till the morning of 26th of December 1998. During that period he found that the Claimant was sexually assaulted and raped by the deceased Defendant on a number of occasions. He also found that during this period drugs including crack cocaine had been administered to her. The judge did not specifically make a finding of post traumatic stress disorder, but rather identified the actual effects on her including periods of anxiety, flashbacks, poor sleep patterns, reluctance to meet people and so on. Even by 2006 there were still residual symptoms of anxiety and distress, albeit by then relatively mild and not disabling. The judge recognised, as did the Court of Appeal in Griffiths v Williams, that rape has come to be treated in a quite different category from personal injury cases in general.[47]Allowing for inflation and the fact that the present case was significantly more serious than Griffiths v Williams, involving multiple rapes and a longer more terrifying ordeal, Eady J awarded general damages of £78,500.00. This award, like Griffiths v Williams, was a global figure covering not only the tortious elements, but also aggravated damages.[48]These present cases of course involve significantly more coerced sexual encounters than was the case in Griffiths v Williams and Lawson v Glaves-Smith. They also involve much longer periods of false imprisonment.[49]I then turn to the matter of false imprisonment. In the cases of AT, NT and AK this will have lasted for approximately two months, perhaps a little more. In the case of ML, who spent time at Oakington Detention Centre, the period must be reduced to one of about one month. I have noted the observations of Lord Woolf MR in Thompson v Metropolitan Police Commissioner [1998] QB 498, who gave guidance as to damages in a case of wrongful arrest and imprisonment at page 515 in these terms:
“As a guideline we consider, for example, that a Plaintiff who has been wrongly kept in custody for 24 hours should for this alone normally be regarded to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale.”
[50]I have also considered R v Governor of Brockhill Prison Ex-Parte Evans (2) [1999] QB 1043, and in particular, Lord Woolf MR’s observations at page 106A to G. I approach this aspect of the matter on the basis that after the initial period of false imprisonment there should be a marked tapering off in the level of damages, albeit that sight should not be lost of the overall period of false imprisonment. In so doing, I note in the passage referred to in R v Governor of Brockhill Prison, the reference to the unreported Court of Appeal decision in Lunt v Liverpool City Justices. In that case, where a man of good reputation had been imprisoned wholly unjustifiably for alleged default in payment of rates, the Court of Appeal increased an award from £13,500.00 to £25,000.00. The period of false imprisonment there was forty two days.[51]Taking account of these different elements of an award for pain, suffering and loss of amenity, and taking account of the differences between the individual cases already highlighted under this head, I award AT £125,000.00, NT £117,000.00, ML £82,000.00 and AK £97,000.00.[52]For the avoidance of doubt I make clear that these sums do not include any element which could be represented by aggravated damages.[53]I understand that AT, NT and AK were each awarded a sum by the Criminal Injuries Compensation Authority. One of the Claimants ML has not yet received a decision on her application. I do not consider it appropriate to deduct any award made by the CICA from the award of general damages ordered against these Defendants. There will be no risk of double recovery since paragraph 49 of the 2001 Criminal Injuries Compensation Scheme states:
“Where a person in whose favour an award under this scheme is made subsequently receives any other payment in respect of the same injury…he will be required to repay the authority in full up to the amount of the other payment.”
As Coulson J observed at paragraph 80 in A v Hoar [2008] EWHC 1573 (QB), such monies have not been paid by the tortfeasor, but rather by the British tax payer. It would be contrary to notions of restorative justice to permit a Defendant to place any great weight on a payment which he did not make and has not offered to pay back to the CICA.[54]I observe also that the CICA award only touches on part of the injury and harm sustained by these Claimants.

Special Damages

[55]Each Claimant claimed a sum for the cost of Trauma Focused Cognitive Behavioural Therapy sessions, resulting from the mental injury each had suffered. No evidence was put before me to justify the sum claimed or any sum under this heading. Accordingly I make no award.

Aggravated Damages

[56]These Claimants seek additional compensation in the form of an award of aggravated damages. It is important to be aware of the risk of double recovery. These Claimants must not be compensated twice over for the same injury.[57]In my award of general damages, I have included an element to cover the psychiatric harm suffered. That however, is to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendants.[58]Having regard to the approach taken by the Court of Appeal in Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 and in particular the observations of Moore-Bick LJ at paragraph 26 of that decision. I consider it appropriate in this case to make an award of aggravated damages. I have also considered the observations of Smith LJ in Choudhary v Martins [2008] 1 WLR 617, where at paragraph 18 she observed that it was positively helpful if the judge separated the award for psychiatric injury from that for injury to feelings. This, she said, was a helpful process as long as the judge takes care to avoid the risk of double recovery.[59]In this case I find that the behaviour of the Defendants amounted to insulting and arrogant treatment of these Claimants, trampling, as it did, upon their rights as autonomous human beings and subjecting them to repeated episodes of degrading non consensual sexual activity over a significant period of time.[60]These young women were in my judgment, in a vulnerable situation. They were in their early twenties. They were induced to travel to this country by fraud. They were effectively financially dependant upon the Defendants and their associates. They were separated from one another in this country. They were subjected to threats towards their own and their families’ safety and they were coerced into prostitution.[61]Two of them, AT and ML, faced the prospect of giving evidence in the criminal trial. AT actually had to undergo the ordeal of doing so in the face of the Defendants’ denials of wrongdoing. ML was expected to give evidence but did not do so. She was apparently too frightened. It appears that neither NT or AK was contemplated for use as a witness.[62]I consider that the Defendants’ conduct was so appalling, so malevolent, and so utterly contemptuous of the Claimant’s rights as to amount to exceptional conduct warranting an award of aggravated damages. Moreover I consider that the injury to the individual Claimants’ feelings of human pride and dignity, taken together with the humiliation, distress, degradation and insult inflicted upon them by the Defendants’ actions is such that they would not be adequately compensated for these injuries to their feelings if the award were restricted to that which I have already awarded by way of general damages.[63]I have been referred to two county court cases digested in Kemp and Kemp. They are B v Sudlow and C v S. Each case involved sexual assault upon a young girl. In each case aggravated damages were awarded in addition to basic compensatory damages. The cases are factually different from one another and the present case. However, in C v S, where a step father regularly raped the Claimant when she was between the ages of nine and twelve, and when thereafter he had denied his conduct over a four year period prior to the civil trial, an award of aggravated damages of £25,000.00 was made in 1997. At current values this would represent something in the order of £35,000.00.[64]I remind myself of the necessity to avoid double compensation, of the fact that aggravated damages are to be compensatory rather than punitive, and that the total figure for basic and aggravated damages should not exceed fair compensation for the injury which the Claimants have suffered.[65]Nonetheless, in a case of this gravity, where I am satisfied that the Claimants felt, at the time, that their essential human integrity had been grossly compromised, a substantial award is appropriate under this head. As Lord Woolf MR indicated in Thompson, it is not possible because of the variability of circumstances to indicate a precise arithmetical relationship between basic and aggravated damages. As already stated, the assessment of damages in this particular class of case is not something which appears to have been the subject of judicial decision before, and the assessment of such damages will, in any event, vary according to the circumstances of the case. I have referred to the two cases to be found in Kemp and also Griffiths and Glaves-Smith. However, those cases can only provide the most general of guidance.[66]My assessment of an appropriate figure, taking into account all the circumstances, is one of £35,000.00 in the cases of AT and ML and £30,000.00 in the cases of NT and AK. The difference is to take account of the fact that the latter two Claimants did not face the prospect of giving evidence at the criminal trial. Otherwise, I see no reason to differentiate between these Claimants in respect of this head, which covers injury to feelings, humiliation, loss of pride and dignity and matters of that sort. Such factual differences as exist between their cases are already reflected in my differential awards of general damages.

Exemplary Damages

[67]The pre-conditions for such an award are to be found in Rookes v Barnard [1964] AC 1129. At pages 1226-7 Lord Devlin sets out his second category in relation to which such damages may be awarded, namely in circumstances where a Defendant with a cynical disregard for a Claimant’s rights, has calculated that money to be made out of his wrongdoing will probably exceed the damages at risk.[68]I must bear in mind, as Lord Devlin did at page 1230 of Rookes v Barnard, that where the tortious activity is also criminal, it is undesirable that an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denies to the offender the protection of criminal law. However, the criminal proceedings in this country did not result in any order of compensation to these Claimants. Moreover, the Defendants’ exposure under this head can be appropriately limited by bearing in mind the rationale for the second category of exemplary damages as identified by Sedley LJ at paragraph 26 of Borders (UK) Limited and Others v Commissioner of Police of the Metropolis [2005] EWCA Civ 197. The rationale behind the second category is not the punishment of the Defendant, but the prevention of his unjust enrichment.[69]I accept the submission that where the word “calculated” was used by Lord Devlin, this was not intended to require some precise mathematical process or detailed reasoning. What is necessary is that the Defendants deliberately acted in a way regardless of the Claimants’ rights, with a view to making profit for themselves in circumstances which were likely to produce profits for them beyond anything that could subsequently be recovered from them by way of any legal process. The evidence here convinces me that these Defendants acted in such a way. Their activities, along with their associates, were carried out in such a way as to generate huge benefits for themselves, as exemplified by confiscation orders made in the criminal proceedings, totalling approximately £786,000.00.[70]The victims of their conduct (and it is plain that there was a significant number of other young women in a similar plight) were told that they had to work off so called debts of £20,000.00 as the price of their being brought to this country. They were quoted rents for the accommodation in which they were being kept against their will of £300.00 a day, and they were required to indulge in commercial sexual encounters with large numbers of men per day, entirely without regard for their wishes, comfort or physical wellbeing. I am sure that these Claimants had no idea of the level of monies being generated for the benefit of these Defendants and their associates. I am satisfied that the Defendants felt confident that by reason of their use of coercion and threats, that they would never face any financial reckoning at the hands of these Claimants.[71]Since the rationale behind an award of exemplary damages is primarily one of preventing unjust enrichment, I need to consider whether the making of the confiscation orders in the criminal proceedings would in any way preclude an award of exemplary damages. For the reasons analysed in the Borders (UK) case, I do not think it would. Moreover, as already observed, the outcome of the criminal trial resulted in no compensatory award to these Claimants. In addition, although very large confiscation orders were made in the result, the First Defendant was found to have nothing to pay in terms of realisable assets, and the Second Defendant was ordered to pay £4,000.00 only as representing her realisable assets.[72]The profits made by these Defendants at the expense of these Claimants far exceed those sums. In those circumstances I am confident that the Defendants will not be mulcted in the same sum twice. As to the level of quantum, there are no strict rules for the assessment of an award. I have considered Lord Woolf’s observations in Thompson, at page 157c where he envisages a bracket of between £5,000.00 and £50,000.00, the latter representing an absolute maximum in cases involving assault, false imprisonment and malicious prosecution by the police. I remind myself of the judgment of Lord Devlin in Rookes v Barnard, at page 1228, where he stated that in a case where exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation is inadequate to punish the Defendant for his outrageous conduct, then it can award some larger sum.[73]I do not consider that the sums so far awarded to the Claimants suffice to show these Defendants that their misdeeds do not pay, nor do they mark the court’s disapproval of their outrageous conduct.[74]I note the evidence which demonstrates to me that these young women had to charge up to £50.00 for a fifteen minute sexual encounter. I note the estimates of individuals that they were generating between £500.00 and £1,000.00 per day by their activities, dependent on which brothel they were taken to. These daily figures represent amounts generated per individual. None of them saw any of the money they had generated. I use these figures, together with the other evidence about a daily rental of £300.00 and the bond of £20,000.00 per victim, in order to assist me in gaining a feel for an appropriate level of exemplary damages.[75]Having regard to Riches v News Group Newspapers Limited [1986] QB 256, I consider that the correct approach is to fix an overall sum and then divide it equally between the Claimants. I think it is appropriate to do that in this case since they have all been subjected to the same type of unconscionable behaviour by these Defendants. They have not invited me to differentiate between them. Looking at the matter overall, and taking account of the compensatory awards, by way of basic damages and aggravated damages, I conclude that a further sum of £60,000.00 should be awarded by way of exemplary damages. That sum will be divided equally between the four complainants so that the figure of £15,000.00 is to be added to each of the sums awarded to them by way of basic and aggravated compensatory damages.[76]It follows that the total amount awarded to these Claimants against these Defendants, who are liable jointly and severally are, in the case of AT £175,000.00, NT £162,000.00, in the case of ML £132,000.00 and in the case of AK £142,000.00.

Cited in 8 later judgments