DSD v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 23 July 2014 |
| Neutral Citation | [2014] EWHC 2493 (QB) |
| Docket Number | Case No: HQ10X03508 & HQ12X00388 |
| Court | Queen's Bench Division |
| Date | 23 July 2014 |
[2014] EWHC 2493 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: HQ10X03508 & HQ12X00388
Phillippa Kaufmann QC (instructed by Birnberg Peirce & Partners) for the Claimants
Jeremy Johnson QC and Mark Thomas (instructed by Metropolitan Police Directorate of Legal Services) for the Defendant
Hearing dates: 25 th– 29 th November 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INDEX
| A. Introduction | (1–3) |
| B Statutory Framework | (4–15) |
| (1) Statutory provisions under the HRA and the Convention | 4–8 |
| (2) Meaning of "principles" in section 8(4) HRA | 9 |
| (3) Meaning of "in relation to" in section 8(3)(a) HRA | 10–14 |
| (4) Nature of cause of action: not tortious or compensatory | 15 |
| C. Some relevant principles of law governing claims for damages | (16–41) |
| (1) The distinction between pecuniary and non-pecuniary damages | 17 |
| (2) When a non-financial remedy will suffice | 18–27 |
| (3) Exemplary damages and/or punitive damages | 28 |
| (4) Contrition / apologies | 29 |
| (5) The relevance of comparables: Strasbourg or domestic law | 30–35 |
| (6) Taking account of overall context: flexibility and overarching fairness and equity | 36 |
| (7) Taking account of the conduct of the Claimant | 37–39 |
| (8) Taking account of the conduct of the Defendant | 40 |
| (9) The overall need for "modest" awards / totality | 41 |
| D. Section 8(3) HRA: Taking account of the existence of alternative remedies | (42–65) |
| (1) Introduction and issue | 42 |
| (2) Defendant's submissions | 43–47 |
| (3) The relevance of domestic disciplinary proceedings against police officers and internal investigations | 48 |
| (4) Strasbourg case law on the relationship between domestic awards and Article 41 compensation | 49–55 |
| (5) Does the Worboys settlement extinguish the claim for damages against the Defendant? | 56–65 |
| E. The case law comparators | (66–108) |
| (1) Introduction | 66–68 |
| (2) The comparator cases | 69–108 |
| F. Claimants' evidence on harm | (109–115) |
| (1) DSD | 109–112 |
| (2) NBV | 113–115 |
| G. Conclusion: Quantum | (116–145) |
| (1) Introduction | 116–118 |
| (2) DSD | 119–131 |
| (3) NBV | 132–144 |
| (4) Conclusion | 145 |
A. Introduction
There is now before the Court the second part of the claim for damages brought by DSD and NBV. The first part of this trial concerning liability and declarations was heard in November 2013 and judgment was given on 28 th February 2014: [2014] EWHC 436 (QB) ("the Liability Judgment"). I concluded that the Defendant was liable to the Claimants for breach of the Human Rights Act 1998 (" HRA"). This was in relation to the failings on the part of the Metropolitan Police Service (MPS) to conduct an effective investigation into the rapes and other sexual assaults carried out by John Worboys in the period 2002 and 2008. The effect of finding that the MPS was in breach is that I must now consider whether this means (a) that the Claimants are entitled to a financial remedy and if so (b) as to the amount.
The anonymity order that I made in relation to the first trial remains in force: See paragraph [2] of the Liability Judgment.
In this judgment I address the issues arising in the following order. First, the statutory framework. Secondly, relevant principles deriving from case law governing claims for damages. Thirdly, the scope and effect of section 8(3) HRA which requires courts to take account of the existence of alternative remedies. Fourthly, guidance available from comparable decided case. Fifthly, the evidence of harm in relation to DSD and NBV. Sixthly, the application of the law to the facts.
B. Statutory Framework
(1) Statutory provisions under the HRA and the Convention
This claim arises under the HRA. The right to a remedy for breach of the HRA is governed by section 8 headed "Judicial Remedies". So far as relevant it is in the following terms:
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including –
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining –
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention".
For the purposes of section 8(1) the word "unlawful" bears the meaning set out in section 6(1). This provides:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right".
A "Convention right" means one of the rights and fundamental freedoms set out, inter alia, in Articles 2–12 and 14 of the European Convention on Human Rights ("the Convention"). In the Liability Judgment I found a breach on the part of the Defendant of Article 3 which is a "Convention right" within the meaning of sections 6 and 8 HRA and this, in principle, empowers the Court to grant a remedy.
The essential question for the Court is therefore whether it is "necessary" to award damages on the facts of the present case in order to "afford just satisfaction" to DSD and NBV. In deciding this, the Court takes account of all of the circumstances of the case including the existence of other relief or decisions of other courts.
In respect of the questions whether to award damages and if so how much, I am required to "take into account" the "principles" applied by the Strasbourg Court in relation to the award of compensation under Article 41 of the Convention.
Article 41 of the Convention is entitled "Just satisfaction" and is in the following terms:
"If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party".
(2) Meaning of "principles" in section 8(4) HRA
In relation to the "principles" which the Strasbourg Court applies, as referred to in section 8(4) HRA, Lord Reed in Faulkner v Secretary of State for Justice [2013] UKSC 23 (" Faulkner") stated that the term was to be understood in a " broad sense". It was not to be confined to articulated statements of principle but the focus was, rather, upon how the Strasbourg Court applied Article 41 in practice. In particular he identified as relevant the specific factors in given cases which led the court to make or to withhold an award of damages. He explained that one of the reasons why the Strasbourg Court tended not to articulate clear principles explaining when damages should be awarded or how they should be computed included the fact that the Court could not replicate at the international level the multiple and widely divergent approaches to the assessment of damages adopted in the different domestic legal systems of the contracting states: "… the systems of 47 countries, stretching from the Atlantic to the Caspian, with diverse legal traditions" (ibid paragraph [34]). Nor, he pointed out, was there a relevant body of principles of international law which could be applied.
(3) Meaning of "in relation to" in Section 8(3)(a) HRA
An important issue in this case concerns the impact of the existence of other remedies available to DSD and NBV upon the power of this court to award damages. This is because, as I address in section D below, both DSD and NBV have received certain payments arising out of claims they have made against Worboys. With regard to the phrase " in relation to the act in question" in section 8(3)(a) HRA an issue therefore arises as to how closely related to the present claim the other remedies or relief must be. Would an order or remedy arising in civil proceedings against Worboys be "in relation" to the present claim for the sub-standard police investigation simply because that investigation concerned the same assaults? In other words are the civil claims against Worboys for the rapes to be taken into account when determining what amounts to "just satisfaction" for the defective police investigation? Section 8(3) HRA does not say the court should only take account of those orders and remedies which are " directly attributable to the act in question"; the concept of something that is "in relation to" seems to be broader in compass. Some guidance on this can be found in existing domestic case law. In Dobson v Thames Water Utilities Limited [2009] EWHC Civ 28 a claim was brought against Thames Water by local residents claiming that they were affected by odours and mosquitoes caused, they alleged, by the defective operation of a local sewage treatment plant. In the context of the present case it is...
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