…………. . Of missing milk and toiletries plus a miserly Ombudsman
District Judge Hickman : “When this matter was before me in January the parties agreed to my disposing of it on written representations. This I now do. I have received a bundle of copy documents from the Defendant dated 10th March, and have received letters from Mr Thakrar dated 5th March, 4th April and 11 th April. In 2009 the Claimant Mr Thakrar was a prisoner at HMP Whitemoor, He was transferred to HMP Frankland. He is now at HMP Woodhill, which is why the case comes before this court.
“His personal property was cleared from his cell at HMP Whitemoor. It is, I think, common ground that the clearance was not done properly. “A quantity of toiletries” was removed from the cell and placed in a sealed bag. The toiletries were not itemised, which they should have been, and the bag appears to have been mislaid between Whitemoor and Frankland. Mr Thakrar also says that he had ten cartons of long life milk and ten cartons of soya milk in his cell at Whitemoor. No record of these was made.
“The Prison Ombudsman accepted that Mr Thakrar’s toiletries were lost and recommended a payment of £10 for them. The Ombudsman concluded that there was “no evidence to indicate that Mr Thakrar had milk in his cell at the time it was cleared” and made no recommendation in respect of that. The difficulty with that conclusion by the Ombudsman, as I pointed out when the matter was before me in January of this year, is that the reasoning appears to be: the prison officers make no record of there being milk in the cell, therefore there is no evidence that it was there. But the selfsame prison officers have demonstrably lost some of his property in any event. Their record is demonstrably inaccurate.
I think I should make it clear at this point that because I decide a particular issue in favour of one side I am not saying the people on the other side are liars. Civil cases are decided on a balance of probability, in other words what is more likely than not. It’s not the same as in the criminal courts where proof is supposed to be “beyond reasonable doubt”. And on that basis, I proceed on the footing that the milk was there and that Mr Thakrar is entitled to be compensated for the loss of it.
“How much was it worth? Mr Thakrar addresses this in his letter of 10th January, and his figures are not contradicted by the Defendant: the UHT milk was £0.52 each and the soya milk £0.49. On that basis, the milk was worth about £10. What of the toiletries? Mr Thakrar itemises the missing items with some care in his letter of 10th January and arrives at a figure of £39.04. In the light of this, the £10 figure suggested by the Prison Ombudsman has the appearance of being “plucked out of the air”.
“It is long established that where it is the defendant’s fault that the value of the property cannot be exactly assessed, the court should give the claimant the benefit of any doubt. That was established as long ago as 1722 in the great case of Armory v Delamirie where a chimney sweeper’s boy found a jewel and took it to the shop of the defendant, a goldsmith, to know what it was. The defendant stole it. The Chief Justice said that: “several of the trade having been examined to prove what a jewel of the finest water that would fit the socket would be worth, the jury, unless the defendant produced the jewel and showed it not to be of the finest water, should presume the strongest against him and make the value of the best jewels the measure of the damages.” I should “presume the strongest” against the Ministry. I take the total value of the property to be £49.
I am not clear whether the £10 which the Ombudsman considered appropriate in respect of the toiletries has actually been paid. I rather think not, but if it has been paid obviously Mr Thakrar must give credit for it.
“What is Mr Thakrar entitled to in addition to the £49 which I find was the value of the property in question? As he pointed out in January, the sum involved may be small change to a lawyer (or a judge) but is a lot to a serving prisoner. And being deprived of his toiletries until he was able to afford to replace them will have made his incarceration more unpleasant than it should have been (As Sir Alec Paterson said long ago, “Men are sent to prison as a punishment, not for punishment”). That is something for which he is entitled to be compensated.
“Mr Thakrar advances claims for stress and for aggravated damages. I pointed out to him in January that these claims faced difficulties, and my note is that he indicated that he was not expecting a four figure or even a three figure sum; his recollection that I expressed a view that aggravated damages were “likely to be in the high three figures” does not accord with my recollection or my view of the matter.
“Much of the material I have been sent has concerned the parties’ discussions with a view to settlement. Strictly, most of that is material I should not have seen and by which I should not be influenced. The lawyers’ term “without prejudice” is much misunderstood, but what it means is this: Someone should be able to make an offer to settle without it being thrown in his face if it is refused. “Will you accept £x to settle?” does not mean “I admit that lowe you £x”. “I would accept £y in settlement” does not mean “I admit that my claim is worth no more than £y”. By making the offer to settle, a party does not prejudice his position. And for that reason, unless someone goes out of his way to say “This is an open proposal”, communications with a view to settlement are not admissible in evidence, whether or not they are marked “without prejudice”.
“Mr Thakrar wants an apology. On what I have seen, he is entitled to one, but I can’t order the Ministry to tender it. He will have to’ rest content with an award of damages.
“I understand that the Ministry has sought to make stipulations as to the account into which any damages should be paid. This is something they are not entitled to do. Any damages awarded are Mr Thakrar’s property and he is entitled to say what should happen to them.
“A prompt acknowledgement that something had gone wrong would have been sensible, as well as appropriate. I conclude, on reflection, that there should be some modest acknowledgment of the distress caused to Mr Thakrar by being deprived of his property and ‘moreover being powerless to do anything about it. I propose, therefore, to award a total of £75. Mr Thakrar was, of course, exempt from paying court fees so nothing further is payable in respect of that. Costs are not normally awarded in connection with a small claim.
“I strictly should not be aware of it, but I am aware that Mr Thakrar has been hoping for much more than this, and so in case he may wish to appeal against my decision, and I will say a word or two about this, which should not be taken as an encouragement to him to appeal. There is a limited right of appeal against a judgment on a small claim. An appeal will be allowed only if the original decision was clearly wrong, or unjust because of a serious irregularity. Normally the appeal will not be a rehearing but a review of the original decision, and it is not usual for the judge hearing an appeal to hear evidence. He will normally consider the evidence that was before the judge who originally dealt with the matter.
“A party who wishes to appeal must seek permission from the Circuit Judge in his appeal notice. The appeal notice, which is County Court Form N164, must be lodged with the court, accompanied by a sealed copy of the order being appealed from, and must set out the grounds for the appeal. Unless the party seeking to appeal is exempt from paying court fees, there is a fee of £ 115.
“Normally an appeal must be lodged within twenty one days of the original decision, but the Circuit Judge can be asked to extend that time. For the avoidance of doubt, as this decision is being posted to the parties rather than being handed down in their presence, I shall provide that the time for seeking permission to appeal will expire in the first instance at 4 pm on Friday, 3rd June 2011”.
