O’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 prisoner also wrongly accused of the same crime, in the percentage deduction made for their own criminal records.
Held: ‘The award of compensation under section 133 does not prevent an applicant pursuing any civil claim which he may have as a result of his wrongful conviction and punishment (although double recovery will be prevented), but nor does the right to compensation in any way depend on the existence or proof of any delictual wrong recognised by the law. Wrongful conviction and punishment may and often are the result of delinquency on the part of public officials or others, but this is not necessarily so. The Secretary of State makes payment out of public funds to victims of miscarriages of justice not because he or his officials are or are treated as being wrongdoers, but because such victims are recognised as having suffered what may (as here) be a great injury at the hands of the state and it is accepted as just that the state, representing the public at large, should make fair recompense. ‘
‘It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state. . . But recognition of that principle does not . . . resolve the issue in this appeal. The assessor’s task, in relation to the appellants’ loss of earnings claim, was to assess what they had really lost. That, and that only, was the loss for which they were to be compensated. The assessment has necessarily to be hypothetical, but must be as realistic as possible.’
As to the disparity between the treatment of the defendants, the differences in their records could not be ignored: ‘in any assessment of the non-pecuniary loss suffered by any wrongly-imprisoned claimant: it is of the highest relevance that a claimant would have been in prison in any event or had a very bad criminal reputation independently of the offence of which he was unjustly convicted. ‘
Lord Rodger of Earlsferry, dissenting, said: ‘Section 5 is designed to deal with an injured person’s maintenance while necessarily living in a caring institution for the purposes of treatment. I am by no means satisfied that Parliament would ever have envisaged that it would be extended by analogy to cover a prisoner’s maintenance while unjustifiably detained in a prison for the purposes of punishment. Indeed, at this point the assessor’s approach meets what I consider to be an insuperable objection. In the situation envisaged by Parliament, and indeed in all the situations where the courts have allowed a deduction for basic living costs, by the time the supposed saving occurs the defendant has already injured, but is no longer injuring, the claimant. The wrong is over and done with, even though its effects remain. Parliament provides that any savings which then accrue to the injured person, while he is being maintained at public expense in an institution providing treatment to remove or palliate those effects, are to be set off against any loss of earnings. By contrast, in the appellants’ situation the wrong was not over and done with when they were being maintained at public expense and the supposed savings accrued to them. On the contrary, their enforced but unjustified maintenance in prison at public expense for years on end is the very worst part of the injury which has been done to them and for which they are entitled to compensation. The actual infliction of the continuing wrong and the supposed saving are inextricably linked, just as they would be in the case of a prolonged kidnapping. ‘
Lord Bingham of Cornhill said: ‘It is generally desirable that decision-makers, whether administrative or judicial, should act in a broadly consistent manner. If they do, reasonable hopes will not be disappointed. But the assessor’s task in this case was to assess fair compensation for each of the appellants. He was not entitled to award more or less than, in his considered judgment, they deserved. He was not bound, and in my opinion was not entitled, to follow a previous decision which he considered erroneous and which would yield what he judged to be an excessive award.’

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKHL 10, [2007] 2 All ER 833, [2007] 2 WLR 544
Criminal Justice Act 1988 4 4A 133, International Covenant on Civil and Political Rights 14(6), Administration of Justice Act 1982 5
England and Wales
At first instanceRegina (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.
Appeal fromIndependent 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 . .
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedMullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
CitedShearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
CitedBritish Transport Commission v Gourley HL 1955
It is a universal rule that the plaintiff cannot recover more than he has lost and that realities must be considered rather than technicalities. The damages to be awarded for personal injury including loss of earnings should reflect the fact that . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
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 . .
CitedDaish v Wauton CA 1972
The plaintiff, a young child, was seriously injured. In calculating his loss of future earnings, the judge at first instance had made a substantial reduction to reflect the cost of maintaining himself which the child would have incurred if uninjured . .
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 . .
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 . .
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 . .
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 . .
CitedHussain v New Taplow Paper Mills Ltd HL 1988
The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance . .
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 . .
CitedToneguzzo-Norvell v Burnaby Hospital 27-Jan-1994
(Supreme Court of Canada) A catastrophically injured plaintiff claimed for loss of earnings both during the period she would live and during the period in which, as result of the injury complained of, she would not live.
Held: It was well . .
CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
CitedRegina v Tate CACD 2006
The court considered an appeal against sentence based on the disparity between the treatment of the defendants: ‘The fact that the co-defendant Sheppard appears to have been extremely fortunate is not in our judgment a good reason for imposing a . .
CitedRegina v Fawcett CACD 1983
The test which to be applied when considering questions of disparity in sentencing between defendants is whether ‘right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence, . .
CitedAttorney-General v Wilts United Dairies Ltd CA 1921
The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial . .
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedShearman v Folland CA 1950
The injured plaintiff had lived before the accident in hotels to which she paid seven guineas a week for board and lodging. After the accident she spent just over a year in nursing homes at a cost of twelve guineas a week exclusive of medical . .
CitedWatkins v Olafson 1989
(Supreme Court of Canada) The plaintiff sought damages for his injury. He was cared for by the state between the accident and the trial and so had no claim for the cost of care during that period. The Appeal Court (British Columbia) had held that in . .
CitedAndrews v Grand and Toy Alberta Ltd 1978
(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities . .
CitedCooper v Firth Brown Ltd 1963
When calculating losses of earnings, the court must allow for National Insurance contributions which would have had to have been paid by the plaintiff. . .
CitedRegina v Large CACD 1981
The court considered disparities between sentencing of different defendants in the same case: ‘If there be honour among thieves and armed robbers, let him who has been properly and severely sentenced rejoice in the good fortune of his companion who . .
CitedRegina v Delaney 1994
The court should be very slow to impose what it regards as anything other than the right sentence simply because it or another court has imposed a ‘wrong’ sentence on a co-defendant: ‘The principle served by this approach is that where right . .
Leave to appeal to CAHickey 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:
CitedSiddall, Regina (on the Application of) v Secretary of State for Justice Admn 16-Mar-2009
The claimant had been imprisoned then released after his conviction for sexual assaults. He appealed against rejection of his claim for compensation. The criterion for compensation was demonstrating that something had ‘gone seriously wrong in the . .
CitedLondon Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .
CitedGallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .

Lists of cited by and citing cases may be incomplete.

Administrative, Damages, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.250028