#6689 - Borders V. Commissioner Of Police - Commercial Remedies BCL

Borders v. Commissioner of Police

Facts

Mr Jordan is a street trader. He has never, at least for present purposes, held a street trader's licence and so was charged on a number of occasions with unlicensed street trading. On these occasions a total of 46,780 books were seized from his stall, his vehicle, his house and his lock-up garage. The claimants, a consortium of national and London booksellers, had begun marking their books, especially the children's books and travel guides in which Mr Jordan was noted to be specialising, and were eventually able by these means to identify themselves as the principal losers. But the books recovered were, as Master Leslie noted, only a fraction of those received and sold by the appellant. The claimants reckoned that they had lost something like a quarter of a million books to Mr Jordan's operation, which the Master took to have been functioning for at least three years into the late summer of 2003.

Compensation for the difference in value of retrieved books: The master assessed compensatory damages in the sum of 233,142.25. He arrived at this figure by discounting the retail value of the retrieved books at the time they were stolen by their resale value when recovered.

Value of books that had been sold on by the defendant: The Master then turned to the claim for exemplary damages. He noted that the claim which he had now quantified related only to the difference between the original net value of the books recovered by seizure and their residual value on recovery. This left out of account all the other books which Mr Jordan had received and sold over some three years. The particulars of claim said: “The claimants aver and believe that the second defendant [Mr Jordan] has profited to a greater extent from his selling of stolen books than the level of damages sought by the claimants.”

The second head was never claimed as compensatory loss: If this part of the claim had been framed as a further claim for compensatory damages, it is evident from the master's findings that it would have succeeded. Indeed it is evident that while Master Leslie had no difficulty in quantifying this element of the claim as part of the claimants' losses, he had rather more difficulty in characterising it as exemplary damages. But neither at the hearing, where the claimants were represented by counsel, nor before this court, was any application made to amend paragraph 36 of the claim so as to make it a further head of compensatory damages.

Holding

Does punishment under criminal law bar exemplary damages?

The argument from double jeopardy is not in my judgment a sound one. The convictions were a legitimate part of the evidence in support of the civil claim, but there is no duplication of penalty. If the 100,000 award of exemplary damages stands, the appellant's available assets will be depleted by that amount by the time the matter returns to the Crown Court for completion of the confiscation proceedings. If confiscation does not reach all his assets, while this court cannot dictate what is to happen, it can confidently anticipate that Mr Jordan will not be mulcted in the same sum twice.

Can the second head of loss (which are actually compensatory) be claimed as exemplary damages?

It is entirely possible to present the instant case in terms which match Lord Devlin's second category. This was, as Mr Convey submits it was, tortious conduct persisted in with complete indifference to the harm it was causing and in defiance of repeated interventions by the law. It was calculated (in the sense, which I accept is the correct one, of likely) to make a profit beyond what would probably be recovered in cash or in kind by legal process. It was appropriate in this situation to deter such conduct, whether by Mr Jordan or by others, by penalising him beyond the amount of the net loss on...