Independent Assessor v O’Brien, Hickey, Hickey: CA 29 Jul 2004

The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had not been in prison.
Held: The statutory scheme replaced an ex gratia scheme, and there was little guidance as to the calculations involved. The ex gratia scheme had required the payments to be made on common law principles where these were clearly analgous. Two considerations applied: the closeness of ‘the fit’ between the nature of the claim under the scheme and any civil law candidates as sources for analogous principles of assessment. Second is, if there is such ‘a fit’, the clarity and/or precision of such analogous principles as tools or guides for assessment of scheme compensation. The Independent Assessor should, save where it was unjust or otherwise inappropriate, apply common law principles whenever such principles are clear and capable of application by analogy. For non-pecuniary loss, this will usually involve principles of the assessment of damages for malicious prosecution and/or false imprisonment.’ The legislation was intended to provide for all forms of loss, including loss of reputation, subject to deductions from all but any personal injury element.


Lord Justice Auld Mr Justice Gage Lord Justice Longmore


[2004] EWCA Civ 1035, Times 07-Sep-2004




Criminal Justice Act 1988 133


England and Wales


CitedThompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .
CitedCommissioner of Police for Metropolis v Gerald CA 10-Jun-1998
Damages for distress falling short of physical injury should be recovered as an element of any aggravated damages, not as part of the basic award. A failure to discipline a police officer responsible for the injury was not capable of aggravating the . .
Appeal fromRegina (on the Application of O’Brien, Hickey, Hickey) v Independent Assessor QBD 16-Apr-2003
The claimants were to be awarded damages for having been wrongly imprisoned for many years. The respondent was to calculate the award. They complained that he had refused to particularise the award to identify and itemise non-pecuniary loss.
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedLunt v Liverpool City Justices CA 5-Mar-1991
A man of good reputation had been imprisoned for forty two days wholly unjustifiably for alleged default in payment of rates. He sought damages.
Held: The Court increased the award from andpound;13,500.00 to andpound;25,000.00. Commenting on . .
CitedWalter v Alltools 1944
The court considered damages to be awarded for false imprisonment: ‘ . . any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedDe Silva Pontes v Portugal ECHR 23-Mar-1994
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and . .
CitedRolf Gustafson v Sweden ECHR 1-Jul-1997
Article 6 was engaged by an application for compensation under a statutory compensation scheme. . .
CitedRuna Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
CitedMeah v McCreamer (No 1) QBD 1985
The claimant had suffered serious brain damage as a result of the defendant’s negligence, resulting in a personality change which caused him to commit offences for which he was imprisoned. He sought damages for that imprisonment.
Held: Woolf J . .
CitedHodgson v Trapp HL 10-Nov-1988
The question was whether the attendance and mobility allowances which were payable to the plaintiff pursuant to statute should be deducted from damages she had received for personal injury.
Held: They should be. Damages for negligence are . .
CitedDews v National Coal Board HL 1988
The plaintiff miner sought damages for an injury suffered at work.
Held: An employee who had been injured at work could not recover unpaid pension contributions, which had no effect on his pension entitlement, as part of his loss of pay while . .
CitedLim Poh Choo v Camden and Islington Area Health Authority HL 21-Jun-1979
The plaintiff was catastrophically injured. Her life expectation was not affected, but she would never be able to work at her expected profession as a doctor, and was entitled to recover for loss of earnings. The defendant said that there was in . .
CitedRegina v Butcher CACD 1989
Where two defendants receive different sentences from different judges on indistinguishable facts, criminal records and personal circumstances and the one receiving the harsher sentence appeals on the basis of disparity, the Court will only allow . .
CitedRegina v National Insurance Commissioner, ex parte Social Services Secretary CA 1981
The court emphasised the need for consistency in relation to decisions of a social service commissioner. . .
CitedRegina v Poplar Coroner ex parte Thomas CA 15-Dec-1992
The deceased, aged 17, had had a severe asthma attack. The ambulance was delayed and she was taken to the hospital, but died on the way there despite assistance from police officers and latterly the ambulance staff. Evidence suggested that she might . .
CitedRegina v Hertfordshire County Council, ex parte Cheung 4-Apr-1986
The court emphasised the need for consistency in the award of educational grants. . .
CitedRegina v Secretary of State for the Home Department Ex Parte Urmaza QBD 23-Jul-1996
A deportee after a marriage was to be treated in the same way as others despite desertion from ship. The application of the Home Secretary’s discretion under the Policy was in issue. The case ‘raises a novel question about the extent to which . .
CitedM v the Secretary of State for the Home Department CA 19-Feb-2003
The applicant had been given indefinite leave to remain in England, but was later convicted of indecent assault, and recommended for deportation. On appeal the court said that the order for deportation was disproportionate. After serving his . .
CitedRegina v Secretary of State for Home Department ex parte Gangadeen Admn 15-Nov-1996
The Court should not intervene in a minister’s decision in application of his own policy unless he disregarded it, or the decision was inherently irrational. . .
CitedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Citedex parte Wilkins 2000
The rules requiring consistency of decisions does not require a decision-maker to repeat what he sees to be a past error. . .
CitedLim Poh Choo v Camden and Islington Area Health Authority HL 21-Jun-1979
The plaintiff was catastrophically injured. Her life expectation was not affected, but she would never be able to work at her expected profession as a doctor, and was entitled to recover for loss of earnings. The defendant said that there was in . .
CitedHarris v Empress Motors CA 1984
When calculating a dependency loss, the modern practice was ‘to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself’. The conventional figure for a married couple was said to be 33% . .
Application for leaveHickey and others v Independent Assessor CA 25-Feb-2004
Application for leave to appeal on measure of award of compensation for long time spent in prison as a result of miscarriage of justice. . .

Cited by:

Appeal fromO’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.

Damages, Prisons

Updated: 11 June 2022; Ref: scu.199734