The general principle behind the compensation system in the civil courts of England & Wales is to put the Claimant back into the position they would have been in, had the wrong not occurred. Sometimes this can be a relatively straightforward calculation as to direct financial loss or ‘out of pocket’ expense e.g loss of earnings/ the cost of medical treatment, whilst other aspects are more nebulous and complex – such as the calculation of the ‘value’ of the pain, suffering and loss of amenity caused by physical or psychiatric injuries; but the principle behind such calculations is always that of restitution to the Claimant: of not giving the Claimant a ‘windfall’ but rather resetting the balance so as to put them back into the position they would have been in without the tort/ breach of statutory rights committed against them (insofar as money can ever compensate for injuries).
However, there is another type of damages, over and above basic or compensatory damages, which can be appropriately claimed in a limited class of actions, of which claims against the Police are one. Exemplary damages are those awarded by the Courts not to compensate/ reimburse the Claimant for their suffering but to actively punish the Defendant and in this respect can represent something of a ‘windfall’ bonus for the individual Claimant; the overall purpose of such awards being to ensure the good of society as a whole by teaching the wrongdoer a lesson and discouraging future bad behaviour.
There is no question that the ethos of exemplary damages makes them particularly appropriate to claim in actions against the Police, or other Government/ State agents, as they can be a valuable tool in censuring those who have been granted powers over the public and who have grossly or flagrantly abused those powers.
The guiding principles behind awards of exemplary damages were explored and explained by Lord Woolf MR in his judgment in the case of Thompson v Commissioner Of Police Of The Metropolis  EWCA Civ 3083-
“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.
(c) that an award of exemplary damages is in effect a windfall for the plaintiff and, where damages will be payable out of police funds, the sum awarded may not be available to be expended by the police in a way which would benefit the public. [This guidance would not be appropriate if the claim were to be met by insurers].
(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.
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.”
A great many of the cases which I handle include allegations of oppressive, arbitrary and unconstitutional behaviour on the part of serving Police Officers and hence it is regularly appropriate for me to advance a claim for exemplary damages, as well as compensatory damages, on behalf of my clients; whether or not such awards will ultimately be made is another question, as they remain at the discretion of our often cautious and conservative Courts, but it is quite right and proper to include the claim so that the full tools of the civil justice system are available when the matter comes to adjudication.
However, I have recently encountered an argument advanced by solicitors acting for our Chief Constables in such cases, whereby they are seeking to ‘scare off’ claims for exemplary damages by reference to the recent judgment of Nickin J. in Underwood v Hampshire Hospitals NHS Trust  EWHC 888 (QB), para 55 –
“I should record that the claim for exemplary damages ought never to have been included against the Second Defendant. On behalf of the Claimants, Mr Archer did not press the claim at trial (but neither did he formally withdraw it). Claims for exemplary damages are wholly exceptional. The cases in which such damages can properly be claimed are very few; those in which they are awarded fewer still. It is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy. The Particulars of Claim did not disclose a proper case for an award of exemplary damages against the Second Defendant. Happily, it appears that no significant time or costs has been expended on this issue, but as a matter of principle claims for exemplary damages should only be pleaded where there is a proper basis to do so and supported by admissible evidence or in the expectation that such admissible evidence will be available at trial.”
Indeed, this very argument was raised in a Defence filed on a case I have recently successfully concluded; in this Defence, the Police sought to argue that “there are no facts pleaded in the Particulars of Claim that could conceivably justify any such award and it was improper to plead that head of loss.”
I was able to robustly contest this allegation, for, in my opinion, the fact is that any ‘improper’ conduct lay on the part of the lawyer who drafted that Defence and disingenuously sought to rely upon the Underwood case when it was on its facts wholly different to a claim against the Police. The Underwood judgment related to a claim for breach of the Data Protection Act arising from the activities of a private company marketing offers and services to new/ expectant parents, rather than acts of violence and false imprisonment perpetrated by agents of the State, with which my client’s claim was concerned.
This experience shows the need for continued vigilance, however, in the protection of our civil rights which rest to such a great extent on the ever- evolving body of caselaw; clearly some Police Forces, or their lawyers, are seeking to restrict ever further the types of case to which exemplary damages are applicable and this needs to be resisted. An award of exemplary damages, or even indeed the threat of such an award, is a valuable tool in maintaining the rule of law and the effectiveness of our civil justice system.