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Aggravated damages in bailment: Thakrar. v. Secretary of State for Justice.

Mr Thakrar, an inmate at HMP Strangeways, was formerly an inmate at HMP Frankland and HMP Woodhill. In 2010 he was transferred from HMP Frankland to HMP Woodhill. In the course of his removal from HMP Frankland a number of items of his property were allegedly lost, stolen or damaged. Mr Thakrar complained to the Prisons and Probation Ombudsman ('the Ombudsman') and issued a claim for 454.98 [pounds sterling] and compensation for being deprived of his property. No defence was forthcoming from the Ministry of Justice ('MOJ') and judgment in default was entered against the Secretary of State for Justice ('Secretary of State'). This proceeding was for the assessment of damages.

Mr Thakrar's claim fell under four heads. He sought:

* 186.94 [pounds sterling] in respect of the loss of his property "excluding priceless items";

* 224.97 [pounds sterling] in respect of three items of his property which arrived damaged, namely an alarm clock, a stereo and a set of nasal clippers;

* compensation for the loss of his 'priceless items' including items such as photographs, personal letters and certain legal documents; and

* 43.07 [pounds sterling] in respect of missing perishable food items.

The Secretary of State requested that the default judgment be set aside and the claim struck out on the basis that the payment of 10 [pounds sterling] to Mr Thakrar in September 2012 as recommended by the Ombudsman meant that Mr Thakrar had been compensated in full and that the claim was an abuse of process, the claim being treated as a money claim although it included a request for unspecified damages. The Secretary of State relied on the Ombudsman's report of his investigations into the complaint and submitted that Mr Thakrar had not provided any medical evidence to support his claim that he was stressed by the loss of and damage to his property.

The Ombudsman's analysis of the loss of Mr Thakrar's property was that, despite not being recorded on the HMP Woodhill property cards, there was insufficient evidence to demonstrate that there had been a loss of property resulting from the negligence of prison staff. The Ombudsman also indicated that the loss of the perishable items was not considered because staff would not generally have packed items that leaked or deteriorated in transit.

In relation to the damaged items, the Ombudsman stated there was nothing to indicate that Mr Thakrar's nasal clippers and Orientex alarm clock were damaged either during the cell clearance or on arrival at HMP Woodhill. He noted that staff did not issue Mr Thakrar with a stereo that arrived damaged and stated that it was probable that had there been concerns about the condition of either the nasal clippers or the Orientex alarm clock they would not have been issued to Mr Thakrar.

The Ombudsman found that there were a number of items of Mr Thakrar's property claimed by him to be 'priceless' on which it was difficult to place a monetary value, notably photographs and certain legal papers, which had been lost.

Held: Judgment for Mr Thakrar in the sum of 814.97 [pounds sterling].

Per Hickman D.J.:

There had been no application to set aside the judgment against the Secretary of State. Therefore the judgment should not be set aside nor the proceedings struck out. The claim by Mr Thakrar was well-founded. It was Mr Thakrar's property, not his liberty, which was relevant. Mr Thakrar was entitled not to be deprived of his property save by due process of law. It was not affected in principle by the fact that he was transferred following a serious incident which resulted in criminal charges.

The Secretary of State could not have asserted that the Ombudsman's recommendation to pay 10 [pounds sterling] to Mr Thakrar afforded it a complete answer to Mr Thakrar's complaints. Even though the payment of 10 [pounds sterling] proposed by the Ombudsman was eventually made, some thirteen months late, the apology recommended by the Ombudsman had certainly not been forthcoming and the outrageous delay in making payment had all the appearance of a calculated gesture on the part of the Secretary of State.

If property was lost or damaged in the possession of a bailee, it was for the bailee to demonstrate that he had taken reasonable care of it. That rule of law applied even if the bailee was the prison service (for whose actions the MOJ was answerable) and the (involuntary) bailor was a serving prisoner.

THE LOSS OF SOME OF MR THAKRAR'S PROPERTY AND THE PERISHABLE FOOD ITEMS

It could not be understood why the removal of a prisoner for administrative reasons should in law have involved the loss of items of that prisoner's property, or how items such as protein powder and toiletries could have been regarded as perishable. While Mr Thakrar had to give credit for the 10 [pounds sterling] he had received, on the balance of probabilities he had sustained a loss of his property of not less than 100 [pounds sterling] under these two heads and he should be awarded 90 [pounds sterling] accordingly.

DAMAGED ITEMS

The Ombudsman's analysis concerning the damaged items was incomprehensible. Although the Orientex alarm clock had evidently been received by Mr Thakrar (because he had complained about it being damaged) it was not listed on the HMP Woodhill property cards. Mr Thakrar's property did not appear to have been dealt with well by HMP Woodhill, and as the Ombudsman observed, it did not appear that Mr Thakrar's cell clearance was dealt with in accordance with the best practices of the Prison Service. It was dealt with over two days, separated by a period of eleven days and that it seemed there were two further bags cleared. The Ombudsman presumed that the contents of those bags were recorded and that the cell clearance paperwork for those bags had since been lost. On the basis of the Ombudsman's own observations, Mr Thakrar's claim in respect of the stereo was unanswerable. It was accepted that it was damaged and it plainly didn't damage itself.

The analysis regarding the nasal clippers and the alarm clock also made no sense. The Ombudsman did not conclude that Mr Thakrar was lying about these items. Just because the badly completed and unreliable paperwork did not say in terms "These items have been damaged in the course of the cell clearance and/or transit to HMP Woodhill" was a completely unsustainable basis for asserting that the items therefore were not damaged.

Mr Thakrar's claim in respect of the damaged items had not been analysed in a sustainable manner by the Ombudsman. Accordingly it was necessary to consider the situation afresh and Mr Thakrar's claim in respect of them was entitled to succeed. He recovered the sum of 224.97 [pounds sterling] under this head.

LOSS OF 'PRICELESS PROPERTY': ASSESSMENT OF DAMAGES

The fact that the 'priceless items' may have had minimal monetary value did not mean that it was not appropriate to make any award of damages at all in respect of their loss. At the very least the loss of 'priceless property' entitled Mr Thakrar to nominal damages. However, there were two categories of damages which went beyond strict monetary compensation. In some cases courts awarded aggravated damages. In a few cases courts awarded punitive or exemplary damages.

Exemplary or punitive damages could have been awarded if there was oppressive, arbitrary or unconstitutional action by the servants of the government. The servants of the government were said to be also the servants of the people and the use of their power must always have been subordinate to their duty of service. What happened in this case came close to oppressive, arbitrary conduct but it was better characterised as a somewhat cavalier disregard for Mr Thakrar's rights and for his property. Therefore to have awarded exemplary damages would have been wrong. However it was clearly established that aggravated damages could have been awarded in an appropriate case in respect of trespass to a person's goods.

Had the MOJ said promptly and sincerely to Mr Thakrar that it deeply regretted the loss of his personal items and understood his distress, the loss of them would not have been aggravated in the way that it had been. Yet the MOJ had steadfastly failed even to tender the apology which was recommended by the Ombudsman, and the Secretary of State had suggested that in the absence of a medical report it should not even have been inferred that the loss of such items caused stress. Any difficulties which the loss or withholding of legal papers may have caused to Mr Thakrar's appeal could not properly be taken into account as it was purely speculative. However looking at the loss of the photographs and other personal items the least sum that could have been properly awarded under this head was 500 [pounds sterling].

Accordingly judgment was entered for Mr Thakrar for 814.97 [pounds sterling]. Mr Thakrar was, of course, exempt from paying court fees, otherwise the Secretary of State would have had to pay those in addition.

Before: Hickman DJ.

(1) [2013] EW Misc B35 (27 Sept. 2013).

Katharine Mason, Independent Legal Analyst, B.A. (Hons), L.L.B., University of Sydney.
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Author:Mason, Katharine
Publication:Art Antiquity & Law
Date:Dec 1, 2014
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