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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2008-04811

BETWEEN

CHABINATH PERSAD Claimant

AND

PC DEONARINE JAIMUNGAL #11124

THE ATTORNEY GENERAL OF

TRINIDAD AND TOBAGO Defendants

***************************************************

Before: Master Alexander

Appearances:

For the claimant: Ms S Scipio

For the Defendant: Ms Rene Singh and Ms Coreen Findley

REASONS

I. INTRODUCTION:

1. On 9th December, 2008 the claimant commenced action against the defendants seeking inter alia

damages (including aggravated and exemplary damages) for unlawful arrest, malicious prosecution,

and false imprisonment from 7th March 1997 to 22nd September, 1997, costs and interests.

2. On 13th January, 2010 Kokaram J dismissed the defendants’ application of 12th January, 2010 for an

extension of time to file their defence and granted judgment against both defendants for damages

to be assessed by a master.

3. The assessment was heard on 11th May, 2011.

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II. THE CLAIMAINT’S CASE:

4. It is the claimant’s case that on 7th March, 1997 he was, wrongfully and without reasonable cause,

arrested by the first defendant. As a result, he –

remained in custody, without reasonable cause, for approximately 76 days;

feared for his life;

faced the onset of a groundless prosecution; and

suffered losses, both financially and otherwise, in respect of which this action was filed.

III. THE DEFENDANTS’ CASE:

Having failed to file a defence, the defendants were unable to adduce any evidence in defence

of the claim against them. According to CPR Part 12.11, “unless he obtains an order for judgment

to be set aside, the only matters on which a defendant against whom a default judgment has been entered may

be heard are costs ...” There was, therefore, no case put forward by the defendants in defence of this

claim.

IV. EVIDENCE ON ASSESSMENT:

5. In support of the claimant’s claim for damages, the following pieces of documentary evidence were

before this court:

i. Witness statement of the claimant dated and filed 31st January, 2011 with exhibits; and

ii. Witness statement of Ganga Persad dated and filed 31st January, 2011;

6. Both the claimant and Ganga Persad gave viva voce evidence at the assessment. The claimant’s

evidence is that he was arrested on 7th March, 1997 and charged with possession of marijuana for

trafficking and cultivation. The arrest took place in the presence of his family and friends and

following which, he was taken bare back, bare footed and in shorts to the Biche Police station. At

the station, he was shown a paper on which was printed the name “Ganga Persad”, which he was

made to sign (but not read) despite indicating that it was not his name. The content, he claims, was

never explained to him. He was then placed in a holding cell that was in a deplorable condition. It

is his evidence that the first defendant knew his family and him well, as he was an ex-friend of one

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of the claimant’s brothers and was once a frequent visitor of the family home in Charuma Village.

The first defendant had also had a previous “run-in” with the family two years earlier (13th October,

1995), where he had arrested the entire family. The 1995 charges were dismissed in 2006. The first

defendant had also arrested the claimant in 1996, on charges which were also dismissed, and then

again in 1997 prior to the instant charges.

On Monday 10th March, 1997 the claimant was taken to the Rio Claro Magistrate’s court where he

heard his brother’s name “Ganga Persad” being called. Despite protesting that he was not that

person, he was not granted bail and remanded into custody. Subsequently, he was taken to the

Golden Grove Prison, Arouca (hereinafter “the Arouca Prison”). He spent approximately two

months and fourteen days at the Arouca Prison. Then, on 19th May, 1997, he was granted his own

bail in the sum of $80,000.00 and told to report to the Rio Claro Magistrate’s Court. His matter

came up for trial in July 2001 and went on for some seven months until it was dismissed on 5th

February, 2003. Subsequently, a notice of appeal was filed on 11th February, 2003 but was

dismissed by the Court of Appeal (“COA”) on 16th December, 2004.

IV. APPLICATION OF THE LAW ON GENERAL DAMAGES:

(a) FALSE IMPRISONMENT:

The claimant’s submissions:

7. The claimant’s attorney submitted that the measure of monetary compensation that a court can

award as damages for false imprisonment in private law is at large (i.e. wider than an award at

public law) and included damages for loss of reputation. She cited the case of Maharaj v A.G.1 as

well as the following cases:

Alphie Subiah2 (a public law action) where the COA awarded $90,000.003 for the

deprivation of the applicant’s liberty for six hours in police custody.

Sookdeo Harricharan v A.G. of T&T & Anor4 where the plaintiff (police officer) was

awarded $50.000.00 under this head for spending ten hours in police custody and

$70,000.00 for malicious prosecution.

1 [1978] 30 WIR 310 2 Civ App No 10 of 2005. 3 The award was broken up as follows - $45,000.00 as compensatory & $50,000.00 as vindicatory damages.

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Choonarine Ramdial v A.G. of T&T5 where $125,000.00 was awarded to a claimant who

remained in custody for eight days. In arriving at this decision, Rampersad J took into

account: the circumstances surrounding the arrest; the trauma and mental anguish endured;

the length of incarceration and; the five years of prosecution endured.

8. Based on the above decisions, the court was asked to mark its disapproval with the police’s conduct

and award the claimant $500,000.00, plus interest of 12% from 9th December, 2008 to judgment.

The defendants’ submissions:

9. Attorney for the defendants submitted that –

The claimant was remanded into custody pursuant to a judicial discretion.

Under Section 4(6) of the State Liability and Proceedings Act Chap 8:02, the state can

only be liable in false imprisonment up to the point when a claimant is taken before a

judicial authority. Thus, no liability can attach to the state for any period of imprisonment

after the magistrate’s decision to remand the claimant (i.e. after 10th March, 2011.) Further,

once bail is granted, the issue of the deprivation of the claimant’s liberty is no longer due to

the prosecutor but is a judicial act, so no further liability can be attached to the state:

No proceedings shall lie against the State by virtue of this section in respect of anything done or omitted to be

done by any person while discharging or purporting to discharge any responsibilities of a judicial nature

vested in him, or any responsibilities which he has in connection with the execution of judicial process.6

The rule that there is no need to justify a period of detention subsequent to the exercise of

a judicial discretion was confirmed by Master Doyle in Anthony Sorzano’s case. 7

The claimant’s reliance on the decisions of Alphie Subiah; Harricharan and Choonarine

Ramdial is misplaced as they are distinguishable from the instant case:

4 HCA No 3068 of 1999, judgment of Deyalsingh J delivered on 19th December, 2006. 5 CV2009-02336 Choonarine Ramdial v PC Neil Brandon John and A.G. of T&T 6 Section 4(6) of the State Liability and Proceedings Act Chap 8:02. 7 Anthony Sorzano & Steve Mitchell v A.G HCA S-46 of 1996. The court was also referred to the cases of Lock v Ashton 12 QB 870; Diamond v Minter & Ors [1941] 1 KB 656 @ 663 and Ahmed v Shafique [2009] EWHC 618 where the courts refused to award damages for the period after the plaintiffs were remanded in custody by magistrates.

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i. In Alphie Subiah damages were awarded for a constitutional motion where the principles

and considerations relied on to assess damages were different from the instant case that

involved a tort. Further, the time period and facts of that case are also not similar.

ii. In Harricharran’s case (decided in 2006) the plaintiff was a police officer of 25 years who

was known to the prosecutor and had cooperated with the investigation. The resulting

injury to his reputation justified the award of $50,000.00 for false imprisonment of ten

hours. The court was asked to view this award as peculiar to those facts.

iii. In Choonarine Ramdial’s case (an unreported judgment) the transcript was not made

available to the court so it was of no assistance.

An award for false imprisonment in the instant case of $500,000.00 is unreasonable and

cannot be supported by the evidence.

ANALYSIS ON FALSE IMPRISONMENT:

10. In assessing the quantum of general damages for false imprisonment, the court would generally

consider compensation for two basic elements viz. “injury to liberty” and “injury to feelings”:

The details of how the damages are worked out in false imprisonment are few: generally it is not a pecuniary loss but

a loss of dignity and the like, and is left much to the jury’s or judge’s discretion. The principal heads of damage

would appear to be the injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint

and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss

of social status.8 (emphasis mine)

11. As an offshoot of these two basic elements and also to be considered is injury to reputation. This

was confirmed in Walter v Alltools9 where it was stated that, “a false imprisonment does not merely affect

a man’s liberty it also affects his reputation.” This was confirmed by Lord Diplock in Maharaj v The

Attorney General (supra) when he commented, “[F]inally, their Lordships would say something about the

measure of monetary compensation recoverable under section 6 where the contravention of the claimant’s constitutional

rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law

8 Mc Gregor on Damages 9 (1944) 61 TLR 39, 40 (CA)

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for damages for the tort of false imprisonment [under which the damages recoverable are at large and would include

damages for loss of reputation].” See also Mc Gregor on Damages.10

12. In the above respect, I had regard to the comment of Mendonca J in Kamaldaye Maharaj v P.C.

Hobbs, P.C. Charles and the Attorney General 11 that, “[I]n a case of false imprisonment a successful

Plaintiff may recover damages for injury to liberty. Damages may also be recovered for injury to feelings, that is to

say, indignity, mental suffering, disgrace and humiliation suffered by the Plaintiff as well as for any physical injury as

well as injury to reputation. With respect to pecuniary loss, such loss which is not too remote is recoverable...”

13. I also had regard to the dictum of the learned Chief Justice in Thaddeus Bernard v Nixie

Quashie12 that general damages should be a single compensatory figure inclusive of aggravated

damages, “[T]hat is damages which are meant to provide compensation for the mental suffering inflicted on the

Plaintiff as opposed to the physical injuries he may have received. Under this head of what I have called mental

suffering are included such matters as the affront to the person’s dignity, the humiliation that he has suffered, the

damage to his reputation and standing in the eyes of others and matters of that sort.”

(i) Injury to liberty:

14. I accept the evidence of the claimant that he was not informed of the charge at the time of his

arrest. In contention, however, is the length of the false imprisonment as follows:

The claimant submitted that he was in custody for approximately 76 days, and claims relief

for false imprisonment from 7th March, 1997 to 22nd September, 1997

The defendants submitted that the claimant was falsely imprisoned for two days from 7th

March, 1997 to 10th March, 1997, that is from the date of arrest to when he was brought

before a magistrate and not granted bail.

15. When does a claim for false imprisonment arise?

The law in this area is well traversed. There is authority for the position that a claim for false

imprisonment arises up to the point in time when a claimant is brought before a judicial authority

and the discretion exercised to remand him into custody or afford him bail. The judicial act

10 Mc Gregor on Damages 14th ed para 1357 -1358. 11 Kamaldaye Maharaj v P.C. Hobbs, P.C. Charles & the A.G., HCA No 2587 of 1998 @ page 10-11. 12 Per Chief Justice de la Bastide in Thaddeus Bernard v Nixie Quashie , CA No 159 of 1992.

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operates as a divider between the loss of liberty due to the false arrest and the continued detention

of the claimant. In this regard, the words of Stollmeyer JA in Terrance Calix13 are instructive:

... in the circumstances I have come to the view that the grant of bail by the Magistrate, although not accessed by the

appellant, is in law a sufficient ground in this case to disentitle him to an award under this head. I say so for two

basic reasons. The first is that granting bail interposes a judicial act between the prosecution and the continued

detention of the accused. The prosecution is no longer the cause of the deprivation of liberty. That deprivation is

caused by the judicial act.

16. Another case on point is Darren Mc Kenna14 where a claimant was held for three days at the

Scarborough Police Station before being granted bail but was unable to secure bail for a further

two weeks. Stollmeyer J did not consider the additional period as a factor in that case.

17. An opposing view was expressed by Colin Kangaloo J to wit that the entire period of incarceration,

inclusive of any period after bail was granted but incapable of being accessed, is relevant in

assessing damages. The Kangaloo dicta can be found in Ted Alexis case15 that, “if the plaintiff was

unable to access bail after it was granted to him ... then this court should not disregard, in assessing damages for

malicious prosecution and/or false imprisonment, the fact that he spent a further two and a half (2 ½) months in jail

before he was able to access bail.” Kangaloo J expressed the view that the State, by planting cocaine on

the plaintiff in that matter, was liable for all damages flowing from this act so in his award took into

account the additional period spent in jail before he was able to access bail. In the view of this

court, this case should be limited to its facts.

18. I have, therefore, applied the Stollmeyer dicta to the instant case. The claimant was not granted

bail when he first appeared before a magistrate on 10th March, 1997 and in my view the refusal of

bail “... interposes a judicial act between the prosecution and continued detention of the accused.” It was thus

unnecessary to justify any period subsequent to the exercise of this judicial discretion in assessing

the actual length of false imprisonment for which damages are to be awarded. Support for this

position can be found in the cases of Lock v Ashton 12 QB 870; Diamond v Minter & Ors

13 Terrance Calix v The AG of T&T Civ App No 61 of 2007 14 Darren Mc Kenna v PC Leslie Grant #1662 and The AG of T&T CV2006-03114, formerly HCA T51 of 2004. 15 Ted Alexis v The AG of T&T & Ors HCA No S-1555 of 2002, para 30, pages 14-15, where the judge awarded general damages of $100,000.00 for all torts without any breakdown of the award.

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[1941] 1 KB 656 @ 663 and Ahmed v Shafique [2009] EWHC 618 where the courts refused to

award damages for the period after the plaintiffs were remanded in custody by magistrates.

(ii) Injury to feelings/reputation

19. To determine an appropriate award under this head, I took into account both the period of

detention and the circumstances of his incarceration. In so doing, I accept the claimant’s evidence

that he was snatched behind his neck like one would hold a dog and thrown into an unmarked

police vehicle, bare back, bare footed and dressed in a pair of shorts, without being given an

opportunity to put on decent clothes. In a small society as ours, such images can remain embedded

in the minds of the citizenry and despite acquittal would have caused irreparable injury to the

feelings and reputation of the claimant. The arrest having taken place in front of family, friends

and neighbours, he would have experienced shame, humiliation and psychological damage. This

could easily have been avoided by the exercise of some measure of restraint and good sense.

20. I, therefore, did not place much weight on the argument of the defendants that this case can be

distinguished from Harricharan’s case which involved embarrassment caused by the arrest to a

“police officer of 25 years”. In my view, it is irrelevant whether such treatment is meted out to a

“police officer of 25 years standing” or an ordinary citizen – such actions are to be frowned upon

in any civilized society. This is more particularly so, as the legal truism is still true and relevant that

a man is deemed innocent until he is proven guilty. As stated by the Deyalsingh J in Harrichran’s

case, “Instead of putting him (and his family) through the shame and trauma of a party of police turning up and

pounding on his door shouting ‘Police, Police’ at 5:00 o’clock in the morning, a little discretion and restraint could

have been exercised by taking another course. I am not suggesting that a police officer should be treated any

differently from the ordinary citizen, but even with an ordinary citizen in a case like this, there was no need for the

manner of arrest.”16 (emphasis mine)

21. I also accept the claimant’s evidence that he was made to squat and was strip searched in front

prison officers and prisoners; shared a filthy, cramped cell with 7 to 8 other prisoners; accessed a

shower for 3 minutes per day with 30 to 40 inmates at a time; often only had time to wet his skin;

used a pail as a toilet; slept on the cold concrete floor on newspapers; experienced difficulties to

sleep; was allowed airing once per week; became ill for 13 days with the cold and fever; developed a

rash which was not treated; and he witnessed many acts of violence and was subjected to threats.

16 Supra note 4, page 33

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22. Apart from the cases cited by the parties above, I also considered the cases of -

Dilip Kowlessar v AG17 where $38,000.00 inclusive of aggravated damages was awarded

for two days detention in a cell with 12 other prisoners. There was no evidence of harsh

treatment by the police, but he was deemed to have suffered great distress, inconvenience

and embarrassment so as to justify this award.

Maurice Koon Koon v AG of T&T18 where Kokaram J awarded $35,000.00 inclusive of

aggravated damages to a claimant who was falsely imprisoned for 32 hours. The claimant

was not assaulted and the period of detention was uneventful, except for the condition of

the cell. It was filthy, cockroach infested, smelt of urine, and equipped with an exposed

washroom.

23. I also noted the 1998 guidance of Lord Woolf MR on the quantum of compensatory damages for

wrongful arrest and false imprisonment to wit that:

[I]n a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the

first hour during which the Plaintiff has been deprived of his or her liberty. After the first hour an additional sum is

to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable

in personal injury cases and because the Plaintiff is entitled to have a higher rate of compensation for the initial shock

of being arrested. As a guidance we consider, for example, that a Plaintiff who has been wrongly kept in custody for

24 hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days

the daily rate will be on a progressively reducing scale.19

24. The guidance of Lord Woolf MR must be read in conjunction with the qualification issued in Clem

Lewis v Trinidad and Tobago Electricity Commission20 by Stollmeyer J (as he then was) who

in recognising that the English figures cannot be transposed into our society commented thus,

“[F]irst, the social, economic and industrial conditions in England cannot be equated to those in this country.

Second, to convert an award made in England to Trinidad and Tobago dollars based solely on the rate of exchange

applicable at the time cannot be correct: the purchasing power of £1.00 in England cannot be assumed to have the

same purchasing power as TT$8.90 in this country.”

17 Dilip Kowlessar v AG, HCA 350 of 1997 18 Maurice Koon Koon v AG, CV2007-02192/HCA S-1554 of 2004 19 Thompson v Commissioner of Police of the Metropolis [1998] QB 498, page 515. 20 Clem Lewis v Trinidad and Tobago Electricity Commission, HCA S-587 of 1994.

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(b) MALICIOUS PROSECUTION AND AGGRAVATED DAMAGES:


25. The claimant’s attorney submitted that there was no basis for the charges to have been laid. The

first defendant had previously arrested the claimant in 1995, 1996 and earlier on in 1997. Thus,

when the full brunt of the criminal law was set in motion against the claimant yet again in 1997, this

prosecution was activated and driven by pure malice. Further, the claimant had to face a baseless

prosecution for over 5 years until he was acquitted by the COA on 16th December, 2004; he had to

retain the services of counsel; his reputation was damaged and he has to live with that stigma for

the rest of his life. A reasonable award was $100,000.00. No authority was cited in support.

26. With respect to ‘aggravated damages’, the claimant’s attorney submitted that this head of damages

is discretionary and forms part of the compensatory measure of damages. It is, however, separated

from exemplary damages. The court was called upon to award aggravated damages of $60,000.00

given that the claimant endured mental torture at the hands of the police, prisons and during his

court appearances; had to live in nasty conditions “not fit for animals”; was made to squat and

endured a strip search in the open; and was not allowed to shower for 4 days after his arrest.

The defendant’s submissions:

27. The defendants’ attorney submitted that for malicious prosecution, damages are awarded for -

injury to reputation; injury where a person is in danger of losing his life or liberty; and for money

spent in defending the charges.21 Further, the claimant was charged with possession of marijuana

for the purpose of trafficking so the sum of $100,000.00 sought under this head was excessive.

28. With respect to ‘aggravated damages’, the defendants’ attorney submitted that the court ought not

to make any separate award for aggravated damages since it is an uplift of general damages:

Under this head of what I have called “mental suffering” are included such matters as the affront to the person’s

dignity, the humiliation he has suffered, the damage to his reputation and standing in the eyes of others and matters of

that sort. If the practice has developed of making a separate award of aggravated damages, I think that practice

should be discontinued.22

21 McGregor on Damages, 17th edition at paragraph 38-002 on page 1405. 22 Per de la Bastide CJ in Bernard v Quashie Civ App No 159 of 1992

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29. Compensation for all tortious liability should take the form of a global figure and not separated

under different heads based on Herman Lightbourne’s case.23 The defendants also referred the

court to the cases of Darren McKenna24; Maurice Koon Koon25; Deosaran Palakdhari26; Curtis

Gabriel27 and Ted Alexis28. It was submitted that the facts of Ted Alexis were most similar to

the instant case so the court should award $80,000.00 as general damages for false imprisonment

and malicious prosecution, inclusive of aggravated damages.

ANALYSIS ON MALICIOUS PROSECUTION/AGGRAVATED DAMAGES:

30. There is no evidence before this court that the ingredients of the tort of malicious prosecution29

have not been made out or satisfied and/or are in contention in this matter. For instance, it was

not in dispute that the first defendant set the law in motion against the claimant; the prosecution

was resolved in his favour; the proceedings were brought and carried on without reasonable and

probable cause30; the first defendant was actuated by malice and that the claimant suffered damage.

It is my responsibility, therefore, to determine the compensation to be paid for the damage

suffered. Given that the evidence was unchallenged, the assessment was proceeded with along the

basis that the conditions experienced by the claimant on arrest and detention and as set out in his

witness statement are true and correct.

31. With respect to aggravated damages, the comment of Woolf MR in Thompson31 was instructive:

Such damages can be awarded where there are aggravating features about the case which would result in the Plaintiff

not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating

features can include humiliating circumstances at the time of 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. Aggravating features can also include the way the litigation and trial are conducted.

23 Herman Lightbourne v Lionel Joseph, Est. Cpl. No 411 and Public Transport Service Corpn. HCA No 2402 of 1982 24 Darren McKenna v Estate Constable Leslie Grant & the AG of T&T CV2006-03114 decision given April 2008 25 Maurice Koon Koon v The AG of T&T CV2007-02192 decision given July 2010 26 Deosaran Palakdhari v The AG of T&T CV2007-1747 decision given July 2008 27 Curtis Gabriel v The AG of T&T HCA No S-1452 of 2003 decision given 4th June 2008 28 Ted Alexis v The AG of T&T & Ors HCA No S-1555 of 2000 decision given 17th March 2008 29 The ingredients of the tort of malicious prosecution are set out in Clerk and Lindsell on Torts 16th edition, page 1042, para 19-05. See also Wills v Voisin (1963) 6 WIR 50 @ 57A which set out the main ingredients of this tort. 30 It is the evidence of the claimant that in bringing and continuing the prosecution of these charges, the first defendant (an ex-family friend) was motivated by either spite, ill-will or by some indirect or improper motives and so this proved malice. 31 Thompson v Commissioner of Police of the Metropolis [1998] QB 498 @ page 516

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32. I also considered the following cases cited by the defendant:

Darren McKenna32 where a claimant was awarded $40,000.00 for three days false

imprisonment and malicious prosecution inclusive of aggravated damages.

Maurice Koon Koon 33 where a claimant was awarded $35,000.00 for 32 hours false

imprisonment inclusive of aggravated damages.

Deosaran Palakdhari34 where a claimant charged with unlawful possession of a firearm

was awarded $10,000.00 for malicious prosecution inclusive of aggravated damages.

Curtis Gabriel 35 where a claimant was incarcerated for 84 days and only brought before a

magistrate 8 days after his arrest but, spent a further 76 days imprisoned due to his inability

to secure bail. He was awarded $125,000.00 for wrongful arrest, false imprisonment and

malicious prosecution, inclusive of aggravated damages and $50,000.00 as exemplary

damages for assault.

Ted Alexis36 where a claimant, who had evidence planted on him by the police, was

imprisoned for 2 ½ months. He was awarded $100,000.00 for unlawful arrest, false

imprisonment and malicious prosecution, inclusive of aggravated damages and $25,000.00

as exemplary damages to mark the court’s disapproval of the officer’s conduct.

33. Apart from the above cited case, I also bore in mind the following cases:

Eileen Williams37 where Jamadar J (as he then was) awarded $50,000.00 for assault, false

imprisonment, wrongful arrest and malicious prosecution, inclusive of aggravated damages

and $15,000.00 for exemplary damages, especially as she was never informed of her

constitutional right to consult, retain or instruct an attorney at law.

Commissioner of Police for the Metropolis v Gerald38 where Auld stated that, “[T]he

Common Law is still bedevilled with the overlapping notions of aggravated and exemplary damages.

Aggravated damages are a supplement to basic damages to compensate for any particularly bad behaviour of

the Defendant causing distress, including humiliation and loss of dignity, to the Plaintiff in addition to the

other injuries for which he or she is entitled to recover damages. However, such damages carry with them, as

32 Darren McKenna v Estate Constable Leslie Grant & the AG of T&T CV2006-03114 decision given April 2008. 33 Maurice Koon Koon v The AG of T&T CV2007-02192 decision given July 2010. 34 Deosaran Palakdhari v The AG of T&T CV2007-1747 decision given July 2008. 35 Curtis Gabriel v The AG of T&T HCA No S-1452 of 2003 decision given 4th June 2008. 36 Ted Alexis v The AG of T&T & Ors HCA No S-1555 of 2000 decision given 17th March 2008. 37 Eileen Williams v The Attorney General of Trinidad and Tobago, HCA No T 70 of 1996. 38 Commissioner of Police for the Metropolis v Gerald, The Times 26 June 1998.

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do basic damages, an element of punishment for the Defendant. Exemplary damages, on the other hand,

are solely intended to punish, or to mark the Court’s disapproval of, the Defendant’s exceptionally bad

behaviour and, even then, only if and to the extent that basic and aggravating damages are inadequate for

that purpose. This muddled jurisprudential amalgam of categories of damage, two of which are

compensatory, all three of which are capable of punishing and one of which is only punitive or a mark of

disapproval, are confusing enough to the lawyer.”

34. Having regard to the unchallenged conditions under which the claimant was detained, I formed the

view that this is a fitting case for an award of aggravated damages.

(c) EXEMPLARY DAMAGES:


35. This court was asked to consider an award for “exemplary damages” on the basis of the oppressive,

arbitrary or unconstitutional action of the servants of the State. The claimant’s attorney submitted

that the instant case epitomizes outrageous conduct and the poor choices made by agents of the

State to arrest and repeatedly arrest the claimant without cause; to ignore the claimant’s explanation

that he was not in fact ‘Ganga Persad’; to place him in a cell; and to sustain the prosecution for

over 5 years, knowing that it was an innocent man before the court.

36. The court was asked to condemn the laying of criminal charges against a citizen which by their very

nature impaired the fame and reputation of the claimant and to act to deter police officers from

taking advantage of citizens who are merely going about their normal business. It was also

submitted that whilst this case was a simple and straightforward one it is an apt one for the award

of exemplary damages since, “it is so chilling when it is considered that a citizen could be plucked out of [his

state of equilibrium], thrown into a vortex where he is incarcerated and put to face the full brunt of a State

prosecution for a period of 5 years....”

37. The court was referred to the cases of Rookes v Barnard39 and Berry v British Transport

Commission40 in support of the claimant’s position that an award of exemplary damages was

justifiable in the circumstances of this case. It was further submitted that the very fact that the

39 Rookes v Barnard [1964] 1AER @ 367 40 Berry v British Transport Commission[1961] 1QB 149 @ page 160

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claimant was charged at all is defamatory of his character and is actionable per se. In support the

court was referred to the words of Gobin J in Kawal Rajkumar41 that the result of laying the

charges is analogous to what happens in defamation matters. The court was also asked to note that

in the case of Choonarine Ramdial (above) the sum of $30,000.00 was awarded under this head.

Another case referred to was that of Robert Naidike42 where Rajnauth Lee J noted that awards for

compensatory damages have remained generally low in this jurisdiction and that it may be that the

time has come to re-visit the approach of the local courts in this regard. Attorney submitted that

the sum of $50,000.00 for exemplary damages was reasonable and would suffice to register the

court’s “abject disapproval of the high-handed, callous and oppressive conduct of the defendants.”

The defendants’ submission:

38. The defendants’ attorney submitted that exemplary damages may be awarded where the case falls

into one of the three categories outlined by Lord Devlin in Rookes v Barnard (as discussed

below) and that based on the facts in the instant case, a sum of $10,000.00 was reasonable. High

awards are usually reserved for cases where there is a claim for assault and battery.

ANALYSIS ON EXEMPLARY DAMAGES:

39. The main requirement for the award of exemplary damages is the presence of outrageous conduct

disclosing malice, fraud, insolence, cruelty and the like. In Rookes v Barnard43, Lord Devlin

pointed out that exemplary damages are different from ordinary damages and will usually be

applied (i) where there is oppressive, arbitrary or unconstitutional conduct by servants of

government; (ii) where the defendant’s conduct had been calculated to make a profit; and (iii)

where it was statutorily authorised. The instant case falls into the first category.

40. According to Lord Devlin:

Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the

term is to compensate. The object of exemplary damages is to punish and to deter. ... It must be remembered that in

many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be

specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated

damages, the Appellant’s damages would not necessarily be confined to those which he would obtain in an action for

41 Kawal Rajkumar v the AG of T&T, HCA No 671 of 2000 42 Robert Perekebena Naidike & Ors v AG of T&T HCA 965 of 1996, Civ App No 55 of 1999, PC Appeal No 10 of 2003 and CV2006-03600 43 Supra note 21

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wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the

change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without

any departure from the compensatory principle to award a round sum based on the pecuniary loss proved. Moreover,

it is very well established that in cases where the damages are at large the … judge … can take into account the

motives and conduct of the defendant where they aggravate the injury done to the Plaintiff. There may be malevolence

or spite or the manner of committing the wrong may be such as to injure the Plaintiff’s proper feelings of dignity and

pride. These are matters which the jury can take into account in assessing the appropriate compensation.

41. In addition and of relevance also is the statement of Holt CJ in Saville v Roberts44 which was cited

by Diplock J in Berry v British Transport Commission45 to wit that:

There are three sorts of damages, any of which would be sufficient ground to support this action. 1. The damage to a

man’s fame, as if the matter whereof he is accused be scandalous ... 2. The second sort of damages, which would

support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or

liberty. 3. The third sort of damages, which will support such an action, is damage to a man’s property, as where he

is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused.

42. It is clear that an award of exemplary damages can attach where an agent of the State uses his

powers oppressively, illegally and/or to gain his ends since, “...[I]n the case of the government it is

different, for the servants of the government are also the servants of the people and the use of their power must always

be subordinate to their duty of service.”46

43. Further, I noted the comment of Lord Nicholls in Kaddus v Chief Constable of Leceistershire

that, “[T]he availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for

false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are

perceived as inadequate to achieve a just result between the parties. The nature of the Defendant’s conduct calls for a

further response from the courts. On occasion conscious wrongdoings by a Defendant is so outrageous, his disregard of

the Plaintiff’s rights so contumelious that something more is needed to show that the law will not tolerate such

behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a

remedy of last resort, fill what otherwise would be a regrettable lacuna.”

44 Saville v Roberts [1968] 1 Ld. Raym 374 45 Berry v British Transport Commission [1961] 1 QB 149 @ page 160 46 Rookes v Barnard Supra

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44. In the instant case, the first defendant acted with cynical disregard for the claimant’s rights. His

actions were oppressive and actuated by venomous malice towards the claimant. Given that the

first defendant was closely acquainted with the claimant, I formed the view that the arrest and

prosecution of the claimant under a spurious name justify an exemplary award.

V. SPECIAL DAMAGES:

45. Special damages are pecuniary losses, which are capable of being calculated as at the date of

assessment. As “[T]hey are exceptional in their character ..., they must be claimed specially and proved strictly.”47

46. This was confirmed by the Court of Appeal in Uris Grant’48 and by Lord Goddard CJ in Bonham

Carter v Hyde Park Hotel to wit that parties “must understand that if they bring actions for damages, it is

for them to prove their damage; It is not enough to write down the particulars, ... They have to prove it.”49

47. In the instant case, there is a claim of $43,400.00 for special damages and documentary evidence or

receipts were provided in the sum of $42,000.00. This claim related solely to legal fees incurred in

defence of the prosecution. Receipts could have been obtained for the full amount claimed and the

onus was on the claimant to provide same. I note that there was no reason advanced by claimant

for his failure to obtain the necessary documentary evidence in support of the full amount claim.

In my view, there lies no automatic right of recovery by a claimant for whatever he claims as special

damages and the rule requires him to prove his losses. I am, thus, only prepared to allow the claim

for special damages to the extent that it was substantiated by the requisite evidence.

VIII. INTEREST:

48. In the claim form and statement of case, the claimant indicated that he was seeking interest on the

claim but did not provide the relevant details. In his submissions, the claimant sought interest on

false imprisonment at the rate of 12% from 9th December, 2008 and interest on special damages at

the rate of 6% from 7th March, 1997. The defendants submitted that the claimant is not entitled to

an award of interest having failed to comply with the rule laid down in Part 8.5(3) CPR, 1998 (as

amended) which mandates that particulars must be pleaded when making a claim for interest. It

47 Per Kangaloo JA in Mario’s Pizzeria Ltd v Hardeo Ramjit CA 146 of 2003 48 Uris Grant v Motilal Moonan CA 162 of 1995 49 Bonham Carter v Hyde Park Hotel [1948] 64 TLR at page 178 as applied by The Learned Chief Justice C Bernard in Uris Grant v Motilal Moonan Limited and Frank Rampersad CVA No 162 of 1985

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was submitted further that the overriding objective does not allow the court to rectify this breach

since it is not used as a slip rule as seen in Assoon v Petroleum Company of T&T50.

49. Part 8.5(3) of the CPR, 1998 (as amended) provides that:

If the claimant is seeking interest, he must -

1. Say so expressly on the claim form, and

2. Include details of –

a. the basis of entitlement;

b. the rate;

c. the period for which it is claimed;

d. where the claim is for a specified amount of money, the total amount of interest claimed to the date

of the claim; and

e. the daily rate at which interest will accrue after the date of the claim,

on the claim form or in his statement of case.

50. Section 25 of the Supreme Court of Judicature Act Chap. 4:01 states:

In any proceedings tried in any Court of record for recovery of any debt or damages, the Court may, if it thinks fit,

order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the

whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of

action arose and the date of the judgment, but nothing in this section -

(a) shall authorise the giving of interest upon interest;

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any

agreement or otherwise; or

(c) shall affect the damages recoverable for the dishonour of a bill of exchange.

51. The interest to be awarded is within the discretion of the judge or master, as confirmed by Shah J

in Sandra Juman51. In that case, which involved an appeal of a decision to refuse to award interest

on the general damages to the plaintiff at the rate of 12% on the basis that the judge erred in law,

Shah J stated that, “There is no statutory law and no rule of court that orders 12% on judgments from the date of

50 Per Stollmeyer J (as he then was) Assoon v Petroleum Company of T&T CV2006-01194/HCA No S-653 of 2001. 51 Sandra Juman v PC Abbot #11999 and the AG of T&T HCA No S-490 of 2001

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the offence.” The prevailing instability in the economic climate and consequent fluidity in the interest

rates in banking institutions were taken into account to justify the decision not to award the

conventional 12% interest on damages in that matter. Shah J, in his judgment delivered in March

2009 awarded interest on general damages at a rate of 6% p.a.52

52. Further, in Ted Aqui v PC Naguar and Attorney General53 Aboud J in October 2007 confirmed

that interest was in the discretion of the court and awarded interest on general damages at a rate of

12% per annum from the date of filing the writ to the date of judgment.

53. I also had regard to the comments of Rampersad J in June 2009 in Charran Francis v Attorney

General54 who reaffirmed the established principle that interest is discretionary but stated:

[N]o evidence was provided to this court as to the prevailing rate of interest in the bank or the rates which have

featured in the financial sector from 2003 to date. I am however fully aware of the prevailing economic climate in

Trinidad and Tobago at present and I agree with the observations of the Hon. Mr. Justice Shah in the Juman case at

pages 14 to 16. I too am of the view that an award of 12% on general damages from the date of the filing of the writ

is excessive in the circumstances which prevail and which have prevailed in the recent past. I am also aware that in

2003, the market was a different one than the one which existed in 2008/2009. Doing the best I can in an effort

to obtain a balance between the highs of 2003 and the lows of 2008/2009, I am prepared to award the sum of 6%

on general damages.

54. The above cases were clearly under the rules applicable before the CPR, 1998 (as amended) but this

position was also recently confirmed as applicable to interest to be awarded under the CPR 1998

(as amended) in Samantha Fawziyyah Hosein v Central Equipment Rentals, Carlyle Davis

and Trinre.55 In that case the claimant who had failed to comply with Part 8.5(3), CPR claimed

interest of 12% on general damages and 6% on special damages and the defendant submitted he

was not entitled to an award of interest. Jones J stated that the discretion to award interest

emanates from section 25 of the Supreme Court of Judicature Act and awarded interest on both

general and special damages, on 6% and 3% respectively. In so doing, Jones J quoted extensively

from Hassanali J in De Souza v Trinidad Transport Enterprises Ltd and Nanan (No 2):

52 See also Des Vignes J in CV 2008-04009 Sean Wallace v The Attorney General of T&T. 53 Ted Aqui v PC Naguar and The Attorney General of Trinidad and Tobago, HCA No S-1563 of 2002. 54 Charran Francis v The Honourable Attorney General of Trinidad and Tobago, HCA No 518 of 2003 delivered by the Honourable Justice Devindra Rampersad on 30th June, 2009. 55 Fawziyyah Hosein, CA2009-00301.

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“[A] claim for interest need not be pleaded. The discretionary power of the court under the provisions of section 26 of

the Supreme Court of Judicature Act 196256 is exercisable whether or not there is a claim for interest in the

pleadings (Riches v Westminister Bank Ltd [1943] 2 All ER 725. Further, as Lord Denning, MR said in

Jefford v Gee [1970] 1All ER 1211):

‘A claim for interest is not itself a cause of action. It is no part of the debt or damages claimed but something apart

on its own. It is more like an award of costs than anything else. It is an added benefit awarded to a plaintiff when

he wins a case ...’”

55. Having considered the applicable law and authorities cited as well as the current practice by judicial

officers of awarding rates of interest ranging along the continuum of 12% - 6% on general damages

and 6% - 3% on special damages, I am prepared to award a pro-rated interest rate in this matter as

provided below.

CONCLUSION

56. It is thus the order of this court that the defendants do pay to the claimant –

(i) General damages for unlawful arrest, false imprisonment and malicious prosecution

inclusive of an uplift for aggravated damages in sum of one hundred and ten thousand

dollars ($110,000.00) with interest at the rate of 6% per annum from 9th December, 2008 to

15th November, 2011.

(ii) Special damages in the sum of forty two thousand dollars ($42,000.00) with interest at the

rate of 3% per annum from 7th March, 1997 to 15th November, 2011.

(iii) Exemplary damages in the sum of twenty thousand dollars ($20,000.00).

(iv) Costs on the prescribed basis in the sum of thirty four thousand eight hundred dollars

($34,800.00).

(v) Stay of execution of 28 days.

Dated 15th November, 2011

Martha Alexander

Master of the High Court (Ag)

56 S. 26 referred to in this case is in the exact terms as section 25 of the Supreme Court of Judicature Act Chapter 4:01.

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