Thakrar v The Secretary of State for Justice [2013] EW Misc B35 (27 September 2013) [2013] EW Misc B35

EWMISC
Thakrar v The Secretary of State for Justice [2013] EW Misc B35 (27 September 2013)
[2013] EW Misc B35 · 2011-05-06
[1]This is a claim by Kevan Thakrar, currently detained at HMP Strangeways, Manchester, and formerly an inmate of HMP Frankland and HMP Woodhill. In 2010 he was transferred from Frankland to Woodhill spending a short period en route at HMP Wakefield.[2]I should firstly apologise to the parties for the delay in producing this judgment. I wished to consider the matter carefully – as will appear, it does raise what appears to be an important point of principle – and I was away from the court on leave for 2½ weeks during September.[3]Mr Thakrar complains that a number of items of his property were lost, stolen or damaged in the course of his removal from Frankland.[4]I proposed dealing with the matter on written representations. Very sensibly and with a view to dealing with the matter in a proportionate fashion both parties agreed to this.[5]I should perhaps record that I have dealt with a previous claim by Mr Thakrar in somewhat similar circumstances, arising from his transfer in 2009 from HMP Whitemoor to HMP Frankland. Certain observations contained in the written decision which I issued in that case on 6th May 2011 find their way into Mr Thakrar’s statement of case.[6]One other matter which I should record is that while I am aware in general terms that Mr Thakrar is serving a sentence of imprisonment for a serious offence, I have consciously avoided inquiring into the circumstances in which he came to be imprisoned. Those circumstances are not relevant to his claim. The correct approach for the court must be that of Lord Justice Scrutton, one of the toughest characters ever to sit on the Bench, who in a case in 1923 said that:
“‘The law of this country has been very jealous of any infringement of personal liberty.’ This care is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all… It is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law…”
[7]It is Mr Thakrar’s property, not his liberty, with which I have to deal; but he is entitled not to be deprived of his property save by due process of law, and that is not affected by the fact that he may himself not be a particularly attractive individual .[8]Similarly, it is not affected in principle by the fact that, as suggested in the report of the Prison and Probation Ombudsman at para 2, he was transferred following a serious incident which resulted in criminal charges.[9]Mr Thakrar says that certain items of his property which he values at just under £455, were lost or damaged. He says that certain further items are impossible to value in money terms but that he is entitled to be compensated for their loss. And he seeks compensation for being deprived of his property.[10]Mr Thakrar arrived at Woodhill on 26th March 2010. By 20th May 2010, items of his property had still not been received. He pursued a complaint through the Prisons and Probation Ombudsman. That resulted in a report in August 2011 confirming the loss of his property but going on to say that “It is difficult to be certain exactly how much property Mr Thakrar is missing…”[11]Mr Thakrar issued his claim on 14th February 2013. As I have noted, he has some experience of actions against the Ministry of Justice and, perhaps unusually for a litigant in person, he caused the proceedings to be properly served at the outset. No defence was forthcoming from the Defendant, and having satisfied myself as the Rules require that the proceedings had been properly served, on 29th April 2013 I entered judgment in default against the Ministry. The present exercise is accordingly for the assessment of damages.[12]A letter was received by the court in May from the Treasury Solicitor asking that the judgment be set aside and the claim struck out on the basis that: the payment of £10 as recommended by the Ombudsman meant that Mr Thakrar had been compensated in full and that the claim was an abuse of process; “the claim is being treated as a money claim although it includes a request for unspecified damages” – as to this, I respectfully invite the Treasury Solicitor’s department to consider the definition of a “designated money claim” in Part 2.3(1) of the Civil Procedure Rules; despite valuing his total loss at £70 to £100 to the Ombudsman, Mr Thakrar issued the claim for £454.98 plus unspecified damages; Mr Thakrar had not provided any medical evidence to support his claim that he was stressed by the loss of and damage to his property.[13]There is a judgment against the Secretary of State. There has been no application to set it aside. I am not going to do so, and neither am I going to strike the proceedings out. Indeed, as will appear, I am quite clear that the claim is well-founded.[14]In a subsequent letter of 16th July, the Treasury Solicitor indicates that the Ombudsman’s Report dated August 2011 and a letter from the Ombudsman dated 30th August 2011 are relied upon together with evidence that the £10 payment recommended by the Ombudsman in August 2011 was paid on 5th September 2012.[15]The Ombudsman has made enquiries and inspected a number of documents, and has spoken with Mr Thakrar and with prison staff. The proportionate approach must be for me to base my view of the case on those detailed investigations, which go far beyond anything which it would be appropriate for the county court to undertake in relation to a small claim.[16]However, it does not lie in the Ministry’s mouth to assert that the Ombudsman’s recommendation affords the Ministry a complete answer to Mr Thakrar’s complaints. Granted, the payment of £10 proposed by the Ombudsman was made, some 13 months late, but the apology recommended by the Ombudsman has certainly not been forthcoming (paragraph 18 of Mr Thakrar’s statement of case specifically refers) and the outrageous delay in making payment has all the appearance of a calculated gesture on the part of the Ministry.[17]Moreover, certain of the Ombudsman’s conclusions appear untenable on their face.[18]Mr Thakrar’s claim falls under four heads: i) He seeks £186.94 in respect of the loss of his property “excluding priceless items” – items such as photographs, personal letters and certain legal documents; ii) He seeks a total of £224.97 in respect of three items of his property which arrived damaged, namely an alarm clock, a stereo and a set of nasal clippers; iii) He seeks compensation for the loss of his “priceless items”, and submits “a high 3 or 4 figure sum to be suitable compensation for these items”; iv) He seeks £43.07 in respect of missing perishable food items. I shall deal with these in turn. The loss of some of Mr Thakrar’s property.[19]I can take this together with the perishable food items.[20]I find the Ombudsman’s analysis of this aspect of the matter less than convincing. In particular, paragraph 39:
“As the other items [beside the lanyard] have turned up, I am of the view that despite not being recorded on the Woodhill property cards, there is insufficient evidence to demonstrate that this item has been lost due to the negligence of prison staff”
This analysis is incomprehensible. If property is lost or damaged in the possession of a bailee, it is for the bailee to demonstrate that he has taken reasonable care of it. That rule of law applies even if the bailee is the prison service (for whose actions the Secretary of State is answerable) and the (involuntary) bailor a serving prisoner. The Ombudsman appears to reverse the burden of proof.[21]What I do get from the Ombudsman’s report, however, is that in speaking at the time with the Ombudsman’s representative, Mr Thakrar placed his total loss, including perishable items such as foodstuffs, in the region of £70-£100. I suspect that that is a more reliable estimate than the £230.01 he arrived at after (understandably) having over two and a half years to brood on the matter.[22]The Ombudsman at paragraph 11 brusquely indicates that the loss of the perishable items would not be considered – “staff will not generally pack items that can leak or deteriorate in transit”. But I am told in terms that, for example, a carton of cranberry juice was bagged up (paragraph 17), and I fail to understand either the basis on which a prisoner being moved for administrative reasons should in law involve the loss of items of that prisoner’s property, or how items such as “protein powder and toiletries” can be regarded as perishable anyway.[23]I consider that while Mr Thakrar must give credit for the £10 he has received, on the balance of probabilities he has sustained a loss of his property of not less than £100 under these two heads and I propose to award him £90 accordingly. The damaged items[24]With respect, I also find the Ombudsman’s analysis concerning these items to be incomprehensible. I am told at paragraph 27 that although the Orientex alarm clock had evidently been received by Mr Thakrar (because he had complained about it being damaged) it was not listed on the Woodhill property cards. I am told at paragraph 40 that “There is nothing to indicate that Mr Thakrar’s nasal clippers and Orientex alarm clock were damaged either during the cell clearance or on arrival at Woodhill. I note that subsequently staff did not issue Mr Thakrar with a stereo that arrived damaged and that it is probably that had there been concerns about the condition of either item they would not have been issued to him”.[25]I can only concur with the observation at paragraph 47 that Mr Thakrar’s property does not appear to have been dealt with well by Woodhill, and I note the observation at paragraph 43 that “It does not appear that Mr Thakrar’s cell clearance was dealt with in accordance with the best practices of the Prison Service. It was dealt with over two days, separated by a period of 11 days. It also seems that there were two further bags cleared. I presume that the contents of those bags were recorded and that the cell clearance paperwork for those bags has since been lost”.[26]On the basis of the Ombudsman’s own observations, Mr Thakrar’s claim in respect of the stereo appears to be unanswerable. It is accepted that it was damaged and it plainly didn’t damage itself.[27]The analysis regarding the nasal clippers and the alarm clock, with respect, also makes no sense. The Ombudsman does not conclude that Mr Thakrar is lying about these items. That the admittedly badly completed and unreliable paperwork does not say in terms “These items have been damaged in the course of the cell clearance and/or transit to HMP Woodhill” is a completely unsustainable basis for asserting that the items therefore were not damaged.[28]In my view Mr Thakrar’s claim in respect of these items has not been analysed in a sustainable manner by the Ombudsman, it is incumbent upon me to consider the situation afresh, and I consider that his claim in respect of them is entitled to succeed.[29]He recovers £224.97 under this head. Loss of “priceless property”.[30]The Ombudsman finds in terms, and I accept, that a number of items of Mr Thakrar’s property on which it is difficult to place a monetary value, notably photographs and certain legal papers, have been lost.[31]It does not in the least follow from the fact that the items may have minimal monetary value that no award at all of damages is appropriate for their loss.[32]At the very least their loss must entitle Mr Thakrar to nominal damages; but in truth it seems to me that on the whole of this matter I am bound to go beyond that. There are two categories of damages which the court can award which go beyond strict monetary compensation. In some cases courts award what are referred to as aggravated damages. In a few cases courts award what are referred to as punitive or exemplary damages.[33]I have given serious consideration to whether this is a case where exemplary damages are appropriate. In Rookes v Barnard in 1964, Lord Devlin, with whom the other members of the House of Lords agreed on this point, said that there were only two categories of case in which exemplary or punitive damages could be awarded. The first of his two categories was “oppressive, arbitrary or unconstitutional action by the servants of the government… the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service”.[34]What has happened in this case comes close to the “oppressive, arbitrary” conduct of which Lord Devlin speaks, but it seems to me that it is better characterised as a somewhat cavalier disregard for Mr Thakrar’s rights and for his property.[35]And it seems to me that to award exemplary damages would be wrong. I must not take out of context the sentence in Lord Devlin’s speech when he says that “Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay”.[36]However it is clearly established that aggravated, as opposed to exemplary or punitive, damages can properly be awarded in an appropriate case in respect of trespass to a person’s goods – see cases such as Interoven Stove Co v Hibbard (1936) and Owen & Smith v Reo Motors (1934) which remain good law.[37]Had the defendants said promptly and sincerely to Mr Thakrar that they deeply regretted the loss of his personal items and understood his distress, the loss of them would not have been aggravated in the way that it has been. So far from doing that, the Ministry has steadfastly failed even to tender the grudging and belated apology which was recommended by the Ombudsman, and the Treasury Solicitor suggests that in the absence of a medical report I should not even infer that the loss of such items caused stress.[38]I do not think I can properly take into account any difficulties which the loss or withholding of legal papers may have caused to Mr Thakrar’s appeal. That would be an exercise in pure speculation. But looking at the loss of the photographs and other personal items the least sum I can properly award under this head is £500.[39]There will accordingly be judgment for Mr Thakrar for £814.97. For the avoidance of doubt (I bear in mind that it took the Ministry 13 months to pay the minimal sum proposed by the Ombudsman), this sum is payable within 14 days. Mr Thakrar was, of course, exempt from paying court fees, otherwise the Ministry would have had to pay those in addition.