CARE2877							25 June 1999
	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

BETWEEN

ANGELA CLINTON

								(Plaintiff) Appellant

and

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

								(Defendant) Respondent

-----

BETWEEN

SAMUEL DONNELLY

								(Plaintiff) Appellant

and

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

								(Defendant) Respondent

_____

CARSWELL LCJ

	These appeals, which were heard together, were brought by the appellants against a decision of Gillen J given on 3 February 1999, whereby he dismissed appeals against orders made by Master Wilson on 1 December 1998 remitting the actions to the County Court for the Division of Belfast.  They raise issues relating to the nature and measure of damages to be awarded in such actions which have been debated on a number of occasions in this court.
	Angela Clinton commenced proceedings against the Chief Constable, by writ of summons issued on 24 March 1998, claiming damages for personal injuries, loss and damage for her arrest and detention by police officers and for acts alleged to constitute assault.  Her claim was set out in paragraphs 3 to 10 of her statement of claim served on 22 July 1998:
		"3.	On or about 19 July 1993 the Plaintiff resided at and occupied 4 Westrock Park, Belfast.

		4.	On or about the said date police officers unlawfully directed the Plaintiff's arrest and detention.

			(i)	entered the said premises.
			(ii)	searched the said premises.
			(iii)	arrested the Plaintiff and
			(iv)	conveyed the Plaintiff to and subsequently detained her at Castlereagh Police Office, Belfast.

		5.	During the course of the said arrest and detention the Plaintiff was assaulted and beaten by Police Officers.

	PARTICULARS
		(i)	Touching and manhandling the Plaintiff when carrying out the arrest and removing her to Castlereagh Police Office.
		(ii)	Touching and manhandling the Plaintiff while searching her.

		6.	During the said detention police officers removed personal property from her which they detained until her release and also removed her clothing which they retained after her release.

		7.	Further and alternatively, police officers detained the Plaintiff following the said arrest for an excessive period of time.

		8.	Further and alternatively, the said conduct constituted nuisance, breach of duty and misfeasance in public office by the said Police Officers.

		9.	In proof of the foregoing allegations the Plaintiff will further rely on such fact as are within the knowledge of the Defendant but not of the Plaintiff and as may appear from the evidence of the Defendant and his witnesses at the trial of the action.

		10.	By reason of the matters complained of the Plaintiff has been wrongfully deprived of her liberty, she has suffered personal injuries, interference with her personal injury to reputation, physical discomfort and inconvenience mental anxiety and distress, loss and damage."

Along with her statement of claim her solicitors served a medical report from Dr SJ McHugh, in which the following medical history was set out:
		"I can confirm that Angela Clinton attended my surgery on 26/07/93 and was seen by a locum in my absence.  Angela related that she and her mother had been arrested in a house raid at the above address.  This raid and arrest caused her considerable distress when only sixteen years old and living alone with her mother.

		I have seen this young woman's medical notes from her spell in detention at Castlereagh police station.  It is very evident that from the outset her description of events shows this time to be very distressing and confusing.  She stated that she had been very tearful and distressed.  She also described how she had suffered from panic episodes.  This trait can be confirmed from my own medical notes on Angela Clinton.  I have seen the police surgeon's notes which reveal the same complaints and also reveal that provision ws made by the doctor for her detention cell door to be left open in case of panic.

		After her release she felt it necessary to move into her maternal grandmother's house for support.  As a result of her distress and despite her young age it was necessary to prescribe anxiolytic agents in the form of Benzodiazepines.

		Her condition was reviewed on 17/09/93 when she was seen by myself.  She remained emotionally upset and I prescribed the agent Welldorm, as I would have had fewer fears of inducing drug dependency on this agent.

		There were no further consultations on this matter after 17/09/93."

	It was deposed on behalf of the respondent and not in dispute that this appellant was arrested on 19 July 1993 at 1314 hours and released from custody on 20 July 1993 at 1309 hours, a period of almost exactly 24 hours.  She swore an affidavit on 21 January 1999, which the learned judge received and considered along with the evidence which had been placed before the Master.  Paragraphs 2 to 8 of that affidavit read as follows:
		"2.	On the 19th July 1993 I was arrested from my family home at 4 Westrock Park, Belfast.  I was aged 16 at the time.  When I was initially taken from the house I was told that I was not being arrested that I was just going to the station to answer some questions.  I was put into an RUC land rover and taken to what I was later to learn was Castlereagh Police Office.  I was not hand-cuffed but a forensic suit was put on me.  I had never been arrested before and had had limited contact with the Police.  This was an entirely new and troubling experience for me.  When I was taken from the family home I continued to cry and sob and this continued throughout my detention.

		3.	When I arrived at Castlereagh Police Office, a female forensic officer took me to a room and told me to take all my clothes off.  This made me cry even more.  I did not initially comply.  Approximately an hour passed and my grandfather arrived and came into the room.  I was again told to strip off.  My grandfather left the room.  I then explained to the female officer that I was having my period at that time.  She said OK do not take your underwear off.  I had to take all my clothes off except my underwear and I was given a boiler suit and a pair of size 11 plimsoles to wear.  Forensic tests were then conducted and samples were taken from me.

		4.	I was then taken to a different part of the police office where details were taken and I was searched and items of jewellery were taken from me.  I was asked if I wanted a Solicitor and I said I had not done anything.  My grandfather was with me when this happened.  I was then taken and put into a cell on my own without my grandfather being present.  I was then taken to see a doctor.  I was still crying and sobbing when I saw the doctor.  I begged him to let me go home.  I was taken back to the cell.  I was then brought out for interview, with my grandfather, in a room.  At the first interview, with a male and female detective, I was very frightened and continued to cry.  Particularly as the male officer started to say things.  I would be detained at a juvenile detention centre at Millisle.  This aggravated my existing state of distress.

		5.	After interview I was taken back to the cell.  The doctor had told the RUC that the cell door had to be left open because of my panic attacks.

		6.	My detention continued in this way with interviews, with my grandfather present and then periods alone in the cell.  I was detained overnight and my grandfather was sent home.  I did not sleep throughout the night and I cried throughout.

		7.	Following my arrest my mother had also been arrested from the family home and I became aware during the course of my detention that she was detained in a cell quite close by.  She was extremely distressed and worried about me and called to me throughout to see if I was OK.  I was barely able to communicate with her because I was in such a distressed state and sobbing and crying.  On the second day when my grandfather arrived he was sent home and told that I would not be interviewed for a while.  I was then taken later to a doctor who told me I was going to be released.  I continued to cry throughout this period of detention.  I was put out onto the road outside Castlereagh in a boiler suit and size 11 plimsoles.  I had to go back in and ask to wait.  I attended my GP after this incident and he noted my distressed state and prescribed medication.

		8.	This was a very distressing experience at the hands of the RUC.  Particularly when things were said during interview to the effect that I would be further detained and possibly charged in relation to matters that I did not know anything about.  I made this clear to the RUC."

	Samuel Donnelly was arrested by police officers at 7.05 pm on 28 January 1992 and detained for a period of one hour.  In his statement of claim he alleges that during the course of the arrest and detention he was assaulted and beaten.  The particulars pleaded were the following:
		"(i)	Grabbing him by the throat.
		(ii)	Punching him on the left side of the face, causing his
			head to hit a wall.

		(iii)	Grabbing him by the shoulders and trailing him on his back along the ground.

		(iv)	Manhandling him into a landrover.

		(v)	Striking him on the left ankle with a baton.

		(vi)	Punching him several times on both sides of the face.

		(vii)	Punching him on the buttocks.

		(viii)	Manhandling and treating him with excessive roughness during the course of his arrest and removal to the said police station."

	Mr Donnelly swore an affidavit on 21 January 1999, after the hearing before the master, which was received by the judge.  In it he enlarged upon the allegations of ill-treatment, as follows:
		"1.	I am the Plaintiff in the above named action and make this affidavit in relation to same.

		2.	On the evening of the 28th January 1992 I was stopped by an RUC Officer on/or about Carlisle Road, Belfast.  I was then the victim of an unprovoked assault by more than one RUC Officer.  The details of my assault are fully set out in the medical report of Dr. Maini dated 16th April 1997, which I have attached and marked "SD1" at the time of swearing hereof.

			This had been the first time I had been arrested by the RUC.

		3.	At the time of this assault and attack I was a 15 year old school boy attending Christian Brother School, Hightown Road, Belfast.  During the course of the assault I was put into a land rover and taken to Antrim Road RUC Station.  I was searched by Police Officers.  Some 20 minutes later my father John Donnelly arrived at the station.  I then had a consultation with my Solicitor and a medical examination.  I was then interviewed for approximately 30 minutes by 2 Police Officers in relation to an allegation of assault on Police, disorderly behaviour and obstruction.  This allegation was a complete fabrication.  I had not done anything which would have involved criminal behaviour on my part.  Indeed I had been the victim of the assault by a number of Police Officers.

		4.	Following the assault I suffered aches and pains which continued throughout the time that I was being detained and interviewed.  In the course of the assault I had been struck by Police Officers with their hands and with a baton and a torch.  Following approximately 1 hours detention by the RUC I was released and told they would make a decision whether or not to charge me at a later date.  This matter was left to hang over me for some time while I attempted to return to normal school boy activities.

		5.	I found this a distressing experience as a result of the outrageous behaviour of the RUC in connection with this matter."

He exhibited to that affidavit a medical report given by Dr AK Maini following an examination at Antrim Road RUC Station on the evening of the arrest, in which he records the complaints made by Mr Donnelly and describes a number of fresh injuries found on examination.
	In neither action has a defence been served, and we were not informed what case may be made on behalf of the respondent.  We are not, however, concerned with the strength or weakness of the appellants' claims: for the purposes of these appeals we shall assume that the claims are made out and that the appellants will succeed in establishing liability in full against the respondent.  In determining them we take the same approach as that which this court approved in Harper v Associated British Foods Ltd [1991] NI 244 at 246-49.  We bear in mind accordingly that these are appeals against the exercise of a discretion conferred upon the judge, with the consequence that our function as an appellate court is initially one of review only and that we should not interfere with the decision unless the case comes within the parameters set out in Evans v Bartlam [1937] AC 473 and Hadmor Productions Ltd v Hamilton [1983] AC 191.  We have regard to the principles approved in Harper v Associated British Foods Ltd in the following terms:
   1.  On an application for remittal the onus rests on the defendant to establish to the satisfaction of the court that the full amount of the plaintiff's claim is likely to be within the monetary jurisdiction of the county court.
   2.  The court should accept such version of the facts advanced on behalf of the plaintiff as is entitled to reasonable credence.    
	The appropriate level of damages for wrongful arrest, leaving out of account any element of aggravated damages or exemplary damages, was reviewed in detail in the recent decision of this court in Dodds v Chief Constable of the RUC [1998] NI 393, and it is not necessary to explore the earlier authorities cited to us on this point.  At page 403 MacDermott LJ, giving the judgment of the court, laid down guidance for courts and practitioners in the assessment of damages:
		"... bearing in mind that each case depends upon its own particular circumstances and that guidance must be applied sensibly and with sensitivity we would suggest:

		1.  In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £600 for the first hour during which the plaintiff has been deprived of his or her liberty.

		2.  A period of one day (24 hours) should normally attract an award of about £4,000-£5,000 depending upon circumstances.

		We would add that if the error is of a purely technical nature, for instance reference to a wrong statutory provision, the amount of compensation could be very much less; conversely if a person is detained after his innocence becomes clear a fair award of damages could be more."

Applying this yardstick, the damages for wrongful arrest and detention in Miss Clinton's case would be of the order of £4000 to £5000, and in Mr Donnelly's case of the order of £600.  We do not see any sufficient reasons to depart from these levels in either case for the purposes of these appeals in assessing the basic awards for wrongful arrest and detention.  
	In Miss Clinton's case the distress which she suffered could increase this level of damages, by way of compensation for the effect which the experience had upon her as an individual.  Whether or not this amounted to a recognised psychiatric condition, as to which we do not need to express a view, the suffering of distress and anxiety is a well recognised head of compensation.  We do not find it necessary to attempt to quantify it too closely in this appeal, for much may depend on the trial judge's assessment of the appellant and her account of the incident and its aftermath and upon the medical evidence which may be called on either side.  It is sufficient for us to say that if we accept in full for present purposes the appellant's averments and Dr McHugh's report, in our judgment this element of increase of compensatory damages could not, when added to the basic compensatory award for wrongful arrest and false imprisonment, take the level of damages over the county court limit.
	Mr C M Lavery QC for Miss Clinton argued that she would be entitled to a further sum by way of aggravated damages.  The concept of aggravated damages first appeared as a defined element in an award of damages in Lord Devlin's speech in Rookes v Barnard [1964] AC 1129, where he adopted the phrase to define an element of increase in previous cases which should not be regarded as exemplary damages in the proper sense.  After espousing the idea in its Consultation Paper Aggravated, Exemplary and Restitutionary Damages (1993) that aggravated damages contain some punitive element, the Law Commission has now accepted in its Report on this topic (Law Com No 247, 1997) that they should not do so.  This corresponds with the view which we expressed in this court in a fair employment case McConnell v Police Authority [1997] NI 244 at 255 that aggravated damages are purely compensatory and do not contain any punitive element. 
	The Law Commission at paragraph 2.4 laid down two basic preconditions for an award of aggravated damages: 
   (1) exceptional or contumelious conduct or motive on the part of a defendant in committing the wrong, or, in certain circumstances, subsequent to the wrong; and
   (2) mental distress sustained by the plaintiff as a result.
We consider that this formulation is an accurate statement of the law.  It finds support in the judgment of Lord Woolf MR in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 514, where he stated that aggravated damages can only be awarded where "there are aggravating features about the defendant's conduct which justify the award of aggravated damages."  By way of example of such aggravating features in a case of wrongful arrest he specified –
	"humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high-handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution."

When we apply this test we do not find anything in Miss Clinton's statement of claim or in the affidavit sworn by her which would give any grounds for an award of aggravated damages.  We do not accept the suggestion made by Mr Lavery that the onus is on the defendant in a case of wrongful arrest to establish that there were no such aggravating circumstances.  There is an onus on the defendant in any such case to justify the arrest and detention by proving that they were lawful; but it does not in our opinion follow that he must dispel any suggestion of aggravating circumstances where the plaintiff has not proved any facts which tend to prove their existence.  

	It was then argued that the appellants could both properly be awarded exemplary damages, and that the total damages would in each case exceed the county court limit.  Mr Lavery also maintained that in every case of assault by police officers on a citizen exemplary damages could and should be awarded.  The limits within which exemplary damages can be awarded were laid down by Lord Devlin in his speech in the House of Lords in Rookes v Barnard [1964] AC 1129, and although these have been the subject of much judicial and academic discussion since then  they remain fixed and have to be applied in this court.  
	Before the decision in Rookes v Barnard exemplary damages had been fairly freely awarded, as they still are in some other common law jurisdictions.  It is clear from his speech that Lord Devlin regarded punitive damages as anomalous, in that they confuse the criminal and civil functions of the law.  He would have been ready to abolish them, if he had not felt constrained by long-standing precedents to allow their continued existence, albeit in a substantially more restricted form.  He reclassified some apparently punitive past awards as compensatory, terming them aggravated damages.  He was left with three categories of case in which it is still possible for a court to make an award of exemplary damages:
   (a) oppressive, arbitrary or unconstitutional action by servants of the government;
   (b) wrongful conduct which has been calculated by the defendant to make a profit     for himself which may well exceed the compensation payable to the plaintiff; and
   (c) where such an award is expressly authorised by statute.
The second and third categories are not in point in the present appeals and if exemplary damages can properly be awarded in either case it must be under the first head. 
	Lord Diplock cast doubt in Cassell & Co Ltd v Broome [1972] AC 1027 at 1130 on the necessity for retaining the first category in modern law, pointing out that in view of the development of common law weapons to curb excesses of executive power it is a blunt instrument to use for this purpose today.  He also observed that it was Lord Devlin's intention in Rookes v Barnard to remove from the categories of exemplary damages cases of outrageous or arrogant behaviour, which can adequately be dealt with by resort to the concept of aggravated damages.  He recognised, however, as we must, that the first category remains part of the established law.  That is not to say that modern courts should be too ready to award exemplary damages for torts which can be classified as falling into this category, for it lies within their discretion to decide in which cases they think it right to do so, and it is, as Lord Devlin said in Rookes v Barnard at page 1228, a weapon to be used with restraint.  The purpose of retaining the first category of exemplary damages is to vindicate the strength of the law and to compel servants of the government (who for present purposes include the police) to be mindful of their obligation to use their power properly in the service of the public whose servants they also are (ibid at page 1226).  The exemplary principle can, as Lord Devlin said (ibid at page 1223) serve a valuable purpose in restraining the arbitrary and outrageous use of executive power.  The passages which we have quoted give a tolerably clear indication of the type of case in which a court might think it right to award exemplary damages.  We agree with the opinion expressed in McGregor on Damages, 16th ed, para 447, that notwithstanding the statement in Holden v Chief Constable of Lancashire [1987] QB 380 at 388 that unconstitutional action alone may suffice to ground an award of exemplary damages, that should not suffice without the presence of aggravating features.  As the learned author says – 
	"a central requirement for exemplary damages has always been the presence of outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like."
	
	We do not propose to attempt to define more closely the types of case in which exemplary damages might properly be awarded for assaults by police officers, for situations may vary infinitely.  It is sufficient to say for the purposes of this appeal that if the facts deposed to in Mr Donnelly's affidavit and retailed in Dr Maini's report are established in evidence and the court accepts it as an unprovoked attack upon a young suspect, it could be a proper case for an award of exemplary damages.  By contrast, we can see nothing in the facts available to us in Miss Clinton's case to give a proper foundation for an award of exemplary damages.
	The issue was debated before us of the level of award which might properly be made if the court makes an award of exemplary damages. Mr Weatherup QC for the respondent cited to us a number of examples of  awards in our courts which were of relatively modest size.  Mr Macdonald for the appellants pressed upon us the decision of the English Court of Appeal in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, in which a higher starting point was accepted.  Lord Woolf MR stated at page 517 that where exemplary damages are appropriate they are unlikely to be less than £5000.  Mr Weatherup did not seek to argue that a lower level should be fixed in our courts, notwithstanding the fact that levels of damages in the two jurisdictions have diverged to some extent.  We think it right that the levels in Northern Ireland should be comparable with those awarded in England, but we also agree with Mr Weatherup's proposition that the size of such awards underlines the fact that they should only made in exceptional cases.
	The learned judge took the view that in Donnelly's case the award for personal injuries could be in the range of £3000 to £4000, in addition to the £600 for unlawful detention.  He accepted that there could be a basis for aggravated damages and exemplary damages,  but concluded:
		"Nevertheless in view of the comparatively short duration of this incident and the lack of any substantial medical treatment required I am not persuaded that any award of aggravated or exemplary damages would be sufficiently large to boost this case to a value of £15,000."
	
Mr Macdonald argued that the judge misdirected himself in this passage, placing the onus on the plaintiff to bring the case within the High Court jurisdiction.  He stated quite clearly, however, at page 7 of his full and careful judgment that the onus rests upon the defendant to establish that the full amount of the plaintiff's claim was likely to be within the monetary limit of the jurisdiction of the county court, a point which he repeated at page 15 when discussing Angela Clinton's case.  We are satisfied accordingly that the judge properly appreciated where the onus lay and applied the correct principle in that respect in determining these appeals.
	We consider that the judge correctly approached the issues in these appeals in all respects and that he took into account the proper considerations on all the issues which he had to decide.  We are further of the opinion that his decision about the types of damages which could appropriately be awarded in each case was right, and that he took an entirely sustainable view of the probable levels of damages in each.  We accordingly consider that there is no ground on which we should interfere with the exercise of his discretion.  We affirm his decision in each case and dismiss the appeals.

CARE2877
	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

BETWEEN
ANGELA CLINTON
								(Plaintiff) Appellant
and
CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY
								(Defendant) Respondent
-----
BETWEEN
SAMUEL DONNELLY
								(Plaintiff) Appellant
and
CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY
								(Defendant) Respondent
_____

JUDGMENT 
OF
CARSWELL LCJ
_____