"The conclusion, therefore, is that Sergeant Brown was telling the Claimant that her partner was ugly, that she should have a sexual relationship with him, and sending her regular text messages of a sexual nature. He boasted about the size of his penis and told the Claimant that his girlfriend was away. … At the end of January, he embarked on the utilisation of administrative sanctions against the Claimant, instructing Bombardier Morris to punish her, varying the nature of the punishment and demonstrating his inability to make an effective ruling under the AGAI system. He subsequently involved BSM Tabone, escalating matters to him on11 February 2005 . The Claimant was reduced to a mental state where she could no longer continue under this pressure, and when she obtained medical assistance which recommended sick leave, she was mocked and humiliated in front of others by BSM Tabone…"
"Dealing next with the disciplinary matters against the Claimant, no sooner had the inappropriate behaviour taken place than the Claimant found herself in a hostile disciplinary environment which previously had been informal. There are allegations of insubordination and lateness against her which suggest that this was habitual on her part. However, the Tribunal simply did not believe the evidence put forward by the Respondent in this context…"
"All these events, together, are tantamount to a classic history of victimisation. The Claimant was reduced to a condition where she could no longer continue because of the stress which persistent disciplinary allegations against her on trivial grounds trumped up into summary dealings under the Army Act caused to her. The medical advice was then utilised to provide a basis for discharge on disadvantageous terms to the Claimant at a time when she clearly was not suffering from any serious mental illness but was merely seeking to pursue a legitimate grievance against Sergeants Brown and Tabone and the regiment for unsatisfactory action in response to the complaint."
"In relation to the case as a whole, we concluded from our findings in the liability judgment that it was important to characterise the Claimant as someone who had suffered sexual harassment from a person in a position of command and responsibility above her, that her applications for redress had been dealt with below the level of General Officer Commanding in a high handed and arbitrary fashion, and in a way that is unsupported by the procedures regarding the proper method of investigation of grievances which were produced to us."
"It seems to us that there were here factors which entitled the tribunal to make an award of aggravated damages. In particular they identified the third appellant's conduct of the investigation of the complaints of race discrimination. The tribunal described this as a travesty of what it should have been. Instead of providing the respondent with a remedy for the wrongs which he had suffered, the third appellants added to his injury by attributing all his problems to his own defects of personality. We think this was a true case of aggravation: a case where the appellant's actions rubbed salt in the respondent's wounds."
"The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled."
"Nevertheless damages for this relatively new tort of unlawful racial discrimination are at large, that is to say that they are not limited to the pecuniary loss that can be specifically proved. Further, even where exemplary or punitive damages are not sought, nevertheless compensatory damages may and in some instances should include an element of aggravated damages where, for example, the defendant may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the act of discrimination: see per Lord Devlin in Rookes v. Barnard[1964] AC 1129 , 1221; per Lord Reid in Broome v. Cassell & Co. Ltd .[1972] AC 1027 , 1085 and per Lord Diplock in Broome's case, at p. 1124. The material passage from Lord Diplock's speech is in these terms: 'The three heads under which damages are recoverable for those torts for which damages are 'at large' are classified under three heads. (1) Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls 'aggravated damages'. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls "exemplary damages'."
"We consider that, as a matter of principle, aggravated damages ought to be available to plaintiffs or applicants for the statutory torts of sex and race discrimination. Damages are at large and, at least so far as direct discrimination is concerned, the torts may be sufficiently intentional as to enable the plaintiff to rely upon malice, or the defendant's manner of committing the tort, or other conduct, as aggravating the injury to feelings."
"In our judgment, there is no reason in law why aggravated damages should not be awarded by reference to conduct in the defence of proceedings in a discrimination case such as the present case, which is very different from the context of non-intentional torts as exemplified in AB v. South West Water Services Ltd .[1993] QB 507 . Indeed, there is a very good policy reason for allowing such a claim in an appropriate discrimination case. If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings. In the field of discrimination law there are already too many cases that give rise to multiple proceedings and satellite litigation. In the sort of case which we are considering here, it is preferable that, where there is misconduct of sufficient gravity, it is compensated by the Tribunal which is seised of the matter and which has the feel for the aggravating material and its effect on the victim. In the present case, we are satisfied that the approach of the Tribunal to aggravated damages was entirely appropriate and free from legal error."
"We are sensitive to the possibility that over enthusiastic litigants and litigants in Employment Tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case (which were not challenged in the quantum appeal) were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between. It saddens us that this exceptional case concerned the behaviour of a firm of solicitors."
"Any legal process should yield a successful plaintiff appropriate compensation, that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury. No other result can be accepted as just. But there is continuing evidence of libel awards in sums which appear so large as to bear no relation to the ordinary values of life. This is most obviously unjust to defendants. But it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries. … It is, in our view, offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons."
"(8) … Such damages can be awarded where there are 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. … (11) … 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. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned."
"The quantification of the compensation for aggravated damages was first and foremost a matter for the Tribunal, which was bound to have regard to the principle of just and equitable compensation, the relationship to injury to feelings and the global size of the award."
"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 damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case."
'(A) Brain Damage … (c) Moderate Brain Damage£27,500 to£58,000 … (iii) Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited. (B) Post-Traumatic Stress Disorder Cases within this category are exclusively those where there is a specific diagnosis of a reactive psychiatric disorder in which characteristic symptoms are displayed following a psychologically distressing event which causes intense fear, helplessness and horror. The guidelines below have been compiled by reference to cases which variously reflect the criteria established in the 4th edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). The symptoms affect basic functions such as breathing, pulse rate and bowel and/or bladder control. They also involve persistent re-experience of the relevant event, difficulty in controlling temper, in concentrating and sleeping, and exaggerated startle response. (a) Severe£40,000 to£64,250 Such cases will involve permanent effects which prevent the injured person from working at all or at least from functioning at anything approaching the pre-trauma level. All aspects of the life of the injured person will be badly affected.'
"…to the conduct of the defence of the proceedings. The Claimant was challenged in relation to the truth of her allegations regarding the initial sexual harassment, at a time when the Army had already accepted at the highest level that this had taken place. The Claimant was subjected to a particularly unpleasant cross-examination delving into her intimate psychiatric history as an adolescent, and the early origin of her sexual orientation, in a highly challenging fashion. The trial of the Claimant's claim was extended and this created a media circus. The defence of the claim could have been managed in an entirely different fashion had the Respondent accepted that the findings of Major General Loudon should dictate the defence of the Claim and dealt with the case as limited to the Claimant's allegations of victimisation. The allegations of victimisation were dealt with by the Respondent by the provision of the middle ranking officers, the adjutants and battery commanders . The regimental commanders at Lieutenant Colonel level and the Garrison commander at Colonel level did not give evidence in response to the serious allegations made by the Claimant. The only senior officer prepared to give evidence was Lieutenant Colonel Bosanquet, the psychiatrist. The fact that he attended the Tribunal and gave his evidence so candidly did him great credit."
"Given the level of the injury to feelings award it is this Tribunal's conclusion that an aggravated damages award of£20,000 is appropriate."
"The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category – I say this with particular reference to the facts of this case – to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other's, he might, perhaps, be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for 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…"
"Exemplary damages or punitive damages, the terms are synonymous, stand apart from awards of compensatory damages. They are additional to an award which is intended to compensate a plaintiff fully for the loss he has suffered, both pecuniary and non-pecuniary. They are intended to punish and deter."
"The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant's conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff's rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna."
"(12) Finally the jury should be told in a case where exemplary damages are claimed and the judge considers that there is evidence to support such a claim, that though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages. It should be explained to the jury: (a) that if the jury are awarding aggravated damages these damages will have already provided compensation for the injury suffered by the plaintiff as a result of the oppressive and insulting behaviour of the police officer and, inevitably, a measure of punishment from the defendant's point of view; (b) that exemplary damages should be awarded if, but only if, they consider that the compensation awarded by way of basic and aggravated damages is in the circumstances an inadequate punishment for the defendants; … (d) that the sum awarded by way of exemplary damages should be sufficient to mark the jury's disapproval of the oppressive or arbitrary behaviour but should be no more than is required for this purpose. (13) Where exemplary damages are appropriate they are unlikely to be less than£5,000 . Otherwise the case is probably not one which justifies an award of exemplary damages at all. In this class of action the conduct must be particularly deserving of condemnation for an award of as much as£25,000 to be justified and the figure of£50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent."
"… the question of awarding exemplary damages must be considered in the light of the award of compensatory damages in order to ensure that the total award is not excessive."
"An award of aggravated damages in the sum of£6,000 would raise the total amount awarded by way of compensatory damages to£12,350 . I consider that the conduct of the police in this case was worthy of significant punishment, not just because the arrest of Mrs Rowlands was unjustified but also because it was carried out in an arrogant and abusive manner and was followed by a persistent attempt to justify it through the giving of false evidence designed to procure her conviction. In my view a total award of£12,350 does not provide adequate punishment in this case and therefore it is appropriate to make an award of exemplary damages. In Thompson Lord Woolf suggested that an award of exemplary damages should rarely be less than£5,000 which, adjusted for inflation, represents a little over£6,000 in today's terms. In that case the court awarded£25,000 to Miss Thompson and£15,000 to Mr. Hsu, but the behaviour of the police in each of those cases was significantly more serious than that of P.C. Patterson in this case, in particular because each of the claimants was subjected to a greater degree of violence than was inflicted on Mrs Rowlands. In my view an appropriate award in this case would be£7,500 ."
"The award of exemplary damages is a common law head of damages, the object of which is to punish the defendant for outrageous behaviour and deter him and others from repeating it. One of the residual categories of behaviour in respect of which exemplary damages may properly be awarded is oppressive, arbitrary or unconstitutional action by the servants of the government, the ground relied upon by the Court of Appeal in the present case. It serves, as Lord Devlin said in Rookes v Barnard[1964] AC 1229 at 1223, to restrain such improper use of executive power."