AT, NT, ML, AK V DULGHIERU AND DULGHIERU [2008] EWHC 225 (QB)
FACTS:-
The Claimants were all young women who were Moldavian nationals. They were bringing a claim against the Defendants (who were not present at the assessment of damages) for trafficking them into the United Kingdom and making them work as prostitutes between February and July 2003. Initially the women had been told that they could work in the United Kingdom as dancers. They were brought over the Moldova and kept locked in a flat. There they were threatened and taken to brothels, where they were forced to have sex with men. Each was told that they were heavily in debt to their captors and that they had to pay a rent of £300 a day.
In June 2003 the Claimants managed to escape and the two Defendants were successfully prosecuted. The First Defendant pleaded guilty at his trial, but only after the First Claimant had given evidence. The Second Defendant contested her guilt but was convicted.
AT was the First Claimant and she was born in 1982. She was extremely distressed at her experience. Once a week, she was taken to a brothel in Greek Street where she had to have sex with up to forty men a day. She suffered great physical pain and the customers at the brothel were frequently verbally and physically abusive. She had to perform different humiliating and degrading acts and was made to work even whilst menstruating. This had gone on for about two months. AT still suffered nightmares about twice a week. She felt unsafe if she was out on the street.
She now found sexual relationships painful and wanted to forget what had happened, but was unable to do so. She was now working two days a week, and spent the rest of the time as a student. She was diagnosed with chronic post traumatic stress disorder. There were gynaecological problems, but no expert evidence was placed before the court.
NT was the Second Claimant and she was born in 1984 in Moldova. The first experience of non consensual sex was humiliating and degrading and left here in severe pain and unable to walk properly. She was required to have sex with about ten men a day, and twice a week she was taken to another flat where she was required to have sex with forty to fifty men a day. This had gone on for two months. She found it very difficult to disclose what had happened to her. She still felt insecure and tended to stay near her home because she felt frightened. She worked in a restaurant twenty two and a half hours per week, but otherwise did not go out a great deal. She also had gynaecological problems, but there was again no expert evidence before the court.
ML was the Third Claimant. She was born in 1983. She was lured into prostitution in the same way as the other Claimants and threatened with violence if she did not cooperate. Her ordeal lasted about one month. She was deeply affected by the process, and continued to be scared when she went out. She had difficulties in her relationship with her boyfriend. She had worked in various jobs on a full time basis but stopped working in August as she felt so unwell. She was diagnosed with chronic post traumatic stress disorder.
AK was born in 1979. Her experience was much the same as the other Claimants. She was forced to have sex with large numbers of men, from thirty to fifty a day. This lasted for a month. Following her release from her ordeal, she had married and had a child.
HELD:-
Justice Treacy said whereas AT was assessed as suffering from symptoms typically found in a severe depressive disorder, the other three Claimants were assessed as having symptoms a moderate depressive disorder.
ML had been imprisoned by the Defendants for one month, whereas the others were falsely imprisoned for about two months.
Pain, suffering and loss of amenity
Treacy J said that his approach under this heading was to look at the matter globally for the various elements which were reflected, namely post traumatic stress disorder, coerced sexual activity and false imprisonment. In relation to the PTSD, the best guidance was the JSB Guidelines for the Assessment of General Damages in Personal Injury Cases (9th Edition).
In relation to AT, this fell within the moderately severe categorisation. In relation to NT, ML and AK, the appropriate categorisation would be the moderate category.
Treacy J referred to Griffiths v Williams (Court of Appeal 21st November 1995 unreported) where the Court of Appeal upheld a jury award of £50,000 for a single incident of rape followed by harassment and a trial, in which many untrue allegations were made against the victim. The awarded included an element of aggravated damages.
Reference was also made to Lawson v Glaves-Smith (Executor) [2006] EWHC 2865 where a series of sexual assaults and rapes had been carried out on the Claimant over a period of three days. General damages of £78,500 were awarded including aggravated damages.
In relation to false imprisonment, Treacy J referred to Thompson v Metropolitan Police Commissioner [1998] QB 498 where guidance was given as to damages in a case of wrongful arrest and imprisonment. One day might attract an award of £3,000 with damages decreasing progressively with subsequent days. In R v Governor of Brockhill Prison Ex Parte Evans (2) [1999] QB 1043 there was a reference to an unreported case, Lunt v Liverpool City Justice where a man had been unjustifiably imprisoned for forty two days. He received £25,000 from the Court of Appeal.
The following awards would be made:-
AT - £125,000
NT - £117,000
ML - £82,000
AK - £97,000
These sums did not include aggravated damages.
AT, NT and AK had each been awarded a sum of money by the Criminal Injuries Compensation Authority. Treacy J did not consider it to be appropriate to deduct any award made by the CICA from the award of general damages. Any such damages would not have been paid by the tortfeasor, but rather by the British taxpayer. In any event, the CICA award only touched on part of the injury and harm sustained by these Claimants.
Special damages
Each Claimant had claimed a sum for the cost of therapy, but there was no evidence in support of this claim, and no award would be made.
Aggravated damages
Treacy J said that he had included an element to cover the psychiatric harm suffered, but that was to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger and resentment caused by the actions of the Defendants.
The approach was laid out in the case of Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065. There was also the case of Choudhary v Martins [2008] 1 WLR 617.
In this case, Treacy J found that the behaviour of the Defendants amounted to insulting and arrogant treatment of these Claimants, trampling over their rights as human beings. The Claimants were in a vulnerable situation, subjected to threats and coerced into prostitution. AT and ML faced the prospect of giving evidence in the criminal trial, and AT actually did so in the face of the Defendant’s denials. Treacy J found that the Defendant’s conduct was so appalling, so malevolent and so utterly contemptuous of the Claimant’s rights as to amount to exceptional conduct warranting an award of aggravated damages. Two cases from Kemp and Kemp, B v Sudlow and C v S involved aggravated damages. C v S involved a step father who regularly raped the Claimant between the ages of nine and twelve, and thereafter denied his conduct over a four year period prior to the civil trial. An award of £25,000 was made, which at current values would represent something in the order of £35,000.
Aggravated damages should be compensatory rather than punitive, and the total figure of basic and aggravated damages should not exceed fair compensation for the injury which the Claimants had suffered.
The assessment of the total figure would be £35,000 in the case of AT and ML and £30,000 in the cases of NT and AK. The difference was to reflect the fact the latter two Claimants did not face the prospect of giving evidence at the criminal trial.
Exemplary damages
The pre-conditions for such an award were to be found in Rookes v Barnard [1964] AC 1129. This type of award was where the Defendant has calculated that money is to be made out of his wrongdoing, and that such money would probably exceed the damages at risk. Treacy J also referred to the case of Borders (UK) Limited and Others v Commissioner of Police of the Metropolis [2005] EWCA Civ 197. The rationale behind exemplary damages was not the punishment of the Defendant, but the prevention of his unjust enrichment.
In this case, the Defendants’ assets had been confiscated and the confiscation orders now totalled £786,000.
Treacy J did not think that the making of the confiscation orders in the criminal proceedings would in any way preclude an award of exemplary damages. Moreover there had been no criminal compensation order made. Although very large confiscation orders had been, the First Defendant was found to have no assets and the Second Defendant was ordered to pay £4,000 only as representing her realisable assets.
Treacy J noted that the Claimants had to charge up to £50 for a fifteen minute sexual encounter, and apparently they were each generating between £500 to £1000 per day. They were also told that they had to pay a daily rental of £300 and a bond of £20,000 each. He had used these figures in order to gain a figure for an award of exemplary damages.
He would have regard to Riches v News Group Newspapers Limited [1986] !B 256. He would fix an overall sum and then divide it equally between the Claimants. Therefore a further sum would be divided equally between the four complainants, so that the figure of £15,000 was to be added to each of the sum awarded to them by way of basic and aggravated compensatory damages.
AT - £175,000
NT - £162,000
ML - £132,000
AK - £142,000
FACTS:-
The Claimants were all young women who were Moldavian nationals. They were bringing a claim against the Defendants (who were not present at the assessment of damages) for trafficking them into the United Kingdom and making them work as prostitutes between February and July 2003. Initially the women had been told that they could work in the United Kingdom as dancers. They were brought over the Moldova and kept locked in a flat. There they were threatened and taken to brothels, where they were forced to have sex with men. Each was told that they were heavily in debt to their captors and that they had to pay a rent of £300 a day.
In June 2003 the Claimants managed to escape and the two Defendants were successfully prosecuted. The First Defendant pleaded guilty at his trial, but only after the First Claimant had given evidence. The Second Defendant contested her guilt but was convicted.
AT was the First Claimant and she was born in 1982. She was extremely distressed at her experience. Once a week, she was taken to a brothel in Greek Street where she had to have sex with up to forty men a day. She suffered great physical pain and the customers at the brothel were frequently verbally and physically abusive. She had to perform different humiliating and degrading acts and was made to work even whilst menstruating. This had gone on for about two months. AT still suffered nightmares about twice a week. She felt unsafe if she was out on the street.
She now found sexual relationships painful and wanted to forget what had happened, but was unable to do so. She was now working two days a week, and spent the rest of the time as a student. She was diagnosed with chronic post traumatic stress disorder. There were gynaecological problems, but no expert evidence was placed before the court.
NT was the Second Claimant and she was born in 1984 in Moldova. The first experience of non consensual sex was humiliating and degrading and left here in severe pain and unable to walk properly. She was required to have sex with about ten men a day, and twice a week she was taken to another flat where she was required to have sex with forty to fifty men a day. This had gone on for two months. She found it very difficult to disclose what had happened to her. She still felt insecure and tended to stay near her home because she felt frightened. She worked in a restaurant twenty two and a half hours per week, but otherwise did not go out a great deal. She also had gynaecological problems, but there was again no expert evidence before the court.
ML was the Third Claimant. She was born in 1983. She was lured into prostitution in the same way as the other Claimants and threatened with violence if she did not cooperate. Her ordeal lasted about one month. She was deeply affected by the process, and continued to be scared when she went out. She had difficulties in her relationship with her boyfriend. She had worked in various jobs on a full time basis but stopped working in August as she felt so unwell. She was diagnosed with chronic post traumatic stress disorder.
AK was born in 1979. Her experience was much the same as the other Claimants. She was forced to have sex with large numbers of men, from thirty to fifty a day. This lasted for a month. Following her release from her ordeal, she had married and had a child.
HELD:-
Justice Treacy said whereas AT was assessed as suffering from symptoms typically found in a severe depressive disorder, the other three Claimants were assessed as having symptoms a moderate depressive disorder.
ML had been imprisoned by the Defendants for one month, whereas the others were falsely imprisoned for about two months.
Pain, suffering and loss of amenity
Treacy J said that his approach under this heading was to look at the matter globally for the various elements which were reflected, namely post traumatic stress disorder, coerced sexual activity and false imprisonment. In relation to the PTSD, the best guidance was the JSB Guidelines for the Assessment of General Damages in Personal Injury Cases (9th Edition).
In relation to AT, this fell within the moderately severe categorisation. In relation to NT, ML and AK, the appropriate categorisation would be the moderate category.
Treacy J referred to Griffiths v Williams (Court of Appeal 21st November 1995 unreported) where the Court of Appeal upheld a jury award of £50,000 for a single incident of rape followed by harassment and a trial, in which many untrue allegations were made against the victim. The awarded included an element of aggravated damages.
Reference was also made to Lawson v Glaves-Smith (Executor) [2006] EWHC 2865 where a series of sexual assaults and rapes had been carried out on the Claimant over a period of three days. General damages of £78,500 were awarded including aggravated damages.
In relation to false imprisonment, Treacy J referred to Thompson v Metropolitan Police Commissioner [1998] QB 498 where guidance was given as to damages in a case of wrongful arrest and imprisonment. One day might attract an award of £3,000 with damages decreasing progressively with subsequent days. In R v Governor of Brockhill Prison Ex Parte Evans (2) [1999] QB 1043 there was a reference to an unreported case, Lunt v Liverpool City Justice where a man had been unjustifiably imprisoned for forty two days. He received £25,000 from the Court of Appeal.
The following awards would be made:-
AT - £125,000
NT - £117,000
ML - £82,000
AK - £97,000
These sums did not include aggravated damages.
AT, NT and AK had each been awarded a sum of money by the Criminal Injuries Compensation Authority. Treacy J did not consider it to be appropriate to deduct any award made by the CICA from the award of general damages. Any such damages would not have been paid by the tortfeasor, but rather by the British taxpayer. In any event, the CICA award only touched on part of the injury and harm sustained by these Claimants.
Special damages
Each Claimant had claimed a sum for the cost of therapy, but there was no evidence in support of this claim, and no award would be made.
Aggravated damages
Treacy J said that he had included an element to cover the psychiatric harm suffered, but that was to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger and resentment caused by the actions of the Defendants.
The approach was laid out in the case of Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065. There was also the case of Choudhary v Martins [2008] 1 WLR 617.
In this case, Treacy J found that the behaviour of the Defendants amounted to insulting and arrogant treatment of these Claimants, trampling over their rights as human beings. The Claimants were in a vulnerable situation, subjected to threats and coerced into prostitution. AT and ML faced the prospect of giving evidence in the criminal trial, and AT actually did so in the face of the Defendant’s denials. Treacy J found that the Defendant’s conduct was so appalling, so malevolent and so utterly contemptuous of the Claimant’s rights as to amount to exceptional conduct warranting an award of aggravated damages. Two cases from Kemp and Kemp, B v Sudlow and C v S involved aggravated damages. C v S involved a step father who regularly raped the Claimant between the ages of nine and twelve, and thereafter denied his conduct over a four year period prior to the civil trial. An award of £25,000 was made, which at current values would represent something in the order of £35,000.
Aggravated damages should be compensatory rather than punitive, and the total figure of basic and aggravated damages should not exceed fair compensation for the injury which the Claimants had suffered.
The assessment of the total figure would be £35,000 in the case of AT and ML and £30,000 in the cases of NT and AK. The difference was to reflect the fact the latter two Claimants did not face the prospect of giving evidence at the criminal trial.
Exemplary damages
The pre-conditions for such an award were to be found in Rookes v Barnard [1964] AC 1129. This type of award was where the Defendant has calculated that money is to be made out of his wrongdoing, and that such money would probably exceed the damages at risk. Treacy J also referred to the case of Borders (UK) Limited and Others v Commissioner of Police of the Metropolis [2005] EWCA Civ 197. The rationale behind exemplary damages was not the punishment of the Defendant, but the prevention of his unjust enrichment.
In this case, the Defendants’ assets had been confiscated and the confiscation orders now totalled £786,000.
Treacy J did not think that the making of the confiscation orders in the criminal proceedings would in any way preclude an award of exemplary damages. Moreover there had been no criminal compensation order made. Although very large confiscation orders had been, the First Defendant was found to have no assets and the Second Defendant was ordered to pay £4,000 only as representing her realisable assets.
Treacy J noted that the Claimants had to charge up to £50 for a fifteen minute sexual encounter, and apparently they were each generating between £500 to £1000 per day. They were also told that they had to pay a daily rental of £300 and a bond of £20,000 each. He had used these figures in order to gain a figure for an award of exemplary damages.
He would have regard to Riches v News Group Newspapers Limited [1986] !B 256. He would fix an overall sum and then divide it equally between the Claimants. Therefore a further sum would be divided equally between the four complainants, so that the figure of £15,000 was to be added to each of the sum awarded to them by way of basic and aggravated compensatory damages.
AT - £175,000
NT - £162,000
ML - £132,000
AK - £142,000