Honours even in challenge to award of damages arising from Malicious Prosecution for the notorious Daniel Morgan murder

The Court of Appeal today (20/1/21) handed down their judgment in Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49, in which the parties had sought to challenge the decision of Cheema-Grubb J to award Jonathan Rees £155,000 in damages for malicious prosecution and misfeasance in public office, following his misconceived and wrongful prosecution for the notorious and unsolved murder of Daniel Morgan on 10 March 1987.

Rees and his co-accused Glenn Vian spent 682 days in prison, a significant period of which was in Category A, followed by a year with stringent bail conditions.

Rees and his co-accused had sued the Metropolitan Police, but in a highly controversial judgment Mitting J. found that whilst the senior investigating officer had perverted the course of justice by concocting evidence against the men, that, (legally) deprived them of damages, as properly analysed it was a case of noble cause corruption.  What mattered, when he fabricated the evidence of an eye witness was whether he believed the men were guilty, which he did. (The judgment can be found here)

The Court of Appeal overturned the judgement and sent the case back for an assessment of damages. (The judgment can be found here)

Cheema Grubb’s damages award included £60,000 for loss of liberty, £27,000 for distress arising from the prosecution, £18,000 for aggravated damages and £50,000 for exemplary damages (one third share of the overall exemplary damages award of £150,000)

In his challenge to her award the Appellant argued that the judge had erroneously distinguished loss of liberty awards in immigration detention cases from those in a non-immigration context.  He also took issue with the Judge’s failure to award interest.  The Respondent cross- appealed, challenging the Judge’s award of exemplary damages.

Whilst both parties lost their respective appeals, the Court of Appeal made a number of helpful observations, both in relation to loss of liberty damages cases and exemplary damages generally.

In particular:

  • Awards in immigration detention awards should not be placed in a separate silo from awards in non-immigration cases.  That said, the Court should exercise some caution in the use of comparators and not treat such cases without differentiation (paragraphs 28-29)

  • Pre-judgment interest should not be awarded in cases involving damages for loss of liberty and malicious prosecution.  However judges should award damages to both reflect intervening inflation and also to reflect the fact that the award of damages is being calculated by assessing the situation up to and as at the date of judgement (reflecting the time taken for a Claimant to be finally vindicated).  It would be, further, good practice for a Judge to expressly state, albeit briefly, that that is what they have done (paragraphs 45 and 47)

  • The absolute maximum for exemplary damages set out by the Court of Appeal in Thompson is not to be read in such a limited way and is, in any event, not directed at a case involving more than one Claimant. (paragraphs 53-54)

David Lemer appeared for Mr Rees, instructed by Freeman Alexander solicitors Jason Beer QC and Charlotte Ventham appeared for the Metropolitan Police, instructed by its Directorate of Legal Services.