Merson v Cartwright
| Jurisdiction | UK Non-devolved |
| Judge | Lord Scott of Foscote |
| Judgment Date | 13 October 2005 |
| Neutral Citation | [2005] UKPC 38 |
| Docket Number | Appeal No. 61 of 2003 |
| Court | Privy Council |
| Date | 13 October 2005 |
[2005] UKPC 38
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Privy Council
[Delivered by Lord Scott of Foscote]
The isssue
This appeal raises an issue about damages. Tamara Merson, the appellant before your Lordships, established her entitlement against the respondents, Sergeant Cartwright, an officer of the Bahamian police, and the Attorney General of the Bahamas, to damages for assault and battery, false imprisonment, malicious prosecution and contravention of her constitutional rights. She did so in a ten day trial at the end of which, on 11 March 1994, the judge, Sawyer J as she then was, announced that judgment would be entered for Ms Merson with reasons to be given later.
The learned judge gave her reasons in a written judgment handed down on 22 June 1994. She awarded Ms Merson $8,160 by way of special damages, $90,000 damages for assault, battery and false imprisonment, $90,000 damages for malicious prosecution and $100,000 for the contraventions of Ms Merson's constitutional rights. It is clear that the two awards of $90,000 and the award of $100,000, taken together, included amounts on account of aggravated and exemplary damages. But these amounts were not separately identified.
The respondents did not appeal the issue of liability, whether in respect of the torts or in respect of the breaches of Ms Merson's constitutional rights, but they appealed the damages awards. They contended, first, that the awards of tortious damages were inordinately high and, second, that in relation to the award of $100,000 she had been "improperly and erroneously compensated twice for the same unlawful act". In the hearing before Sawyer J no reliance had been placed by the defendants on the proviso to Article 28(1) of the Constitution. Article 28(1) gives the Supreme Court original jurisdiction to grant redress for infringements of constitutional rights but the proviso says that the jurisdiction is not to be exercised if the Supreme Court "… is satisfied that adequate means of redress are or have been available to the person concerned under any other law". In their Notice of Appeal the respondents contended, also, that the Article 28(1) proviso barred the judge from making the $100,000 award. The $100,000, they contended, should be disallowed.
The judgment of the Court of Appeal (Churaman JA, Ganpatsingh JA and Osadebay JA) dated 29 January 2002 was given by Churaman JA. They declined to interfere with the awards on the ground that they were too high and concentrated on the attack on the $100,000. Having referred to Article 28(1), they said this
"… the Constitution did not provide, nor did it intend to provide for a duplication of damages on the self-same facts both in tort … as well as under the fundamental rights provisions of the Constitution …
Indeed, the proviso precludes the Supreme Court from exercising its powers under the Constitution for breaches of fundamental rights, not in spite of, but rather because of adequate means of redress being available under our law." (p.6 of the judgment).
They referred also to Tynes v Attorney General of Bahamas (unreported) Civil Appeal No 18 of 1994, in which the Court of Appeal, in a judgment given on 11 May 2001, had said –
"… the proviso to Article 28 of the Bahamian Constitution should have been considered as the claim in tort for false imprisonment would have provided an adequate means of redress for the wrong suffered by the respondent. It was therefore wrong for the judge to award separate damages" (p 13).
The Court of Appeal in the present case plainly regarded the award of $100,000 as a similar duplication of damages and therefore set aside that award. They did not, however, explain the reasoning that had led them to their conclusion or set out any textual analysis of the judgment of Sawyer J to support it.
Ms Merson has appealed to the Privy Council. She is seeking the restoration of the $100,000 award. The issue is a narrow one. Mr Frederick Smith, her counsel, does not contend that she can recover twice over for the same wrongs, first by way of damages for tort and, again, by way of constitutional redress under Article 28(1). Mr Dingemans QC, counsel for the respondents, does not repeat the attack in the Court of Appeal on the level of the awards. He simply contends that because Ms Merson had been fully compensated by the tortious damages awards for the tortious wrongs she had suffered, there was no room for any award of constitutional redress. Any such award was barred by the Article 28(1) proviso. The question, therefore, is whether in making the award of $100,000 for the infringements of Ms Merson's constitutional rights, the learned judge was duplicating the awards she made under the tortious heads. If she was, then the constitutional award cannot stand. Whether she was or was not doing so must depend, in their Lordships' opinion, on a textual analysis of her judgment.
Sawyer J's judgment
The judgment was a lengthy one. It began with a detailed exposition of the facts that had led to the litigation. The learned judge's indignation at the outrageous treatment to which, with no shadow of justification, Ms Merson had been subjected by officers of the Bahamian police and by the Bahamian prosecuting authority permeates this part of her judgment (see pages 2 to 24). The Court of Appeal endorsed her indignation.
"In short, the learned judge irresistibly found that the police had behaved in a callous, unfeeling, high handed, insulting and malicious and oppressive manner both with respect to the arrest and false imprisonment as well as the malicious prosecution, the latter on the basis that the police falsely alleged that she had abetted the commission of the alleged offences of illegally operating a bank. The charges were clearly a ruse to justify the arrest. All the charges were subsequently withdrawn." (p 3 of the Court of Appeal judgment)
and
"… the learned judge showed in our respectful view an acute but balanced awareness of the humiliation and degradation to which the police officers had subjected the plaintiff, as well as the affront to humanity and womanhood which their conduct so shamelessly evinced" (p.4 of the Court of Appeal judgment).
Their Lordships, too, would endorse the learned judge's reaction and need not add to the Court of Appeal's coruscating summary cited above, save to note the "irresistible inference" drawn by Sawyer J that
"… the sole reason for the arrest of the plaintiff was to force her father who had been named in the search warrant to return to the Bahamas to check his daughter's welfare – a Gestapo-type tactic if ever there was one". (p 24 of Sawyer J's judgment)
Sawyer J dealt separately with each of the torts of assault and battery, false imprisonment and malicious prosecution, rehearsing the facts relevant to each, including those facts which aggravated the tort, and explaining her conclusion that the tort had been committed. She then dealt with Ms Merson's complaint of breaches of her constitutional rights. Those in play were
In relation to each of these constitutional guarantees the learned judge set out the facts which showed Ms Merson's rights thereunder had been infringed.
| Article 17(1) | "No person shall be subject to torture or to inhuman or degrading treatment or punishment." |
| Article 19(1) | "No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases – … (c) for the purpose of bringing him before a court in execution of the order of court; (d) upon reasonable suspicion of his having committed, or of being about to commit, a criminal offence." |
| Article 19(2) | "Any person who is arrested or detained shall be informed as soon as reasonably practicable … of the reasons for his arrest or detention and shall be permitted … to retain and instruct without delay a legal representative of his own choice and to hold private communication with him …" |
| Article 19(3) | "Any person who is arrested or detained in such a case as is mentioned in sub-paragraph (1)(c) or (d) of this Article and who is not released shall be brought without undue delay before a court …" |
There is no doubt but that there is a potential measure of overlap between the tort of assault and battery on the one hand and the Article 17(1) guarantee against torture or inhuman and degrading treatment on the other, or between the tort of false imprisonment on the one hand and the Article 19(1) guarantee of personal liberty and/or the Article 19(3) guarantee of an appearance without undue delay before a court on the other hand. In some cases the overlap may be complete – two concentric circles of equal radius, so to speak. In other cases, the circles may simply intersect, with each having a segment common to both.
In the present case there was an undoubted overlap between the facts constituting the tortious assault and battery and the facts constituting the Article 17(1) infringement. But the overlap was not complete. For example, the unlawful arrest of...
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