Bianca Durrant v Chief Constable of Avon & Somerset Constabulary (No. 2) [2017] EWCA Civ 1808

Tim Adkin successfully appealed to the Court of Appeal against the decision of the High Court arising from the failure of the trial judge to consider the operation of the two-stage burden of proof and also the quantum of damages in a claim of race discrimination against a police force. The Court considered the Presidential Guidance on injury to feelings.

Brief case summary

This appeal concerned the discriminatory treatment of Bianca Durrant by Police Officers from the Avon & Somerset Constabulary.

In an earlier decision (Bianca Durrant v Chief Constable of Avon & Somerset Constabulary [2017] EWCA Civ 1275) the Court of Appeal held that the trial judge had failed to operate the burden of proof provided by section 57ZA of the Race Relations Act 1976, with the result that an additional finding of the judge was found to be discriminatory. This finding was that the Appellant Ms Durrant had been denied toilet facilities during her arrest and detainment despite her repeated requests for this.

In this second decision, reassessing damages and taking account of the additional discriminatory act, the Court of Appeal increased the level of damages from £4,950 to £14,000. In doing so the Court also took account of two factors:

1. It was appropriate to use the ‘new’ Vento guideline figures for injury to feelings awards proposed by the Presidential Guidance issued in September 2017.  Although the Guidance suggested that it should apply for claims presented on or after 11 September 2017, it was appropriate to use the new bands to allow for the effect of inflation and the ‘long and hard road’ taken by the Appellant to achieve vindication in claims which initially arose out of events in June 2009 and a claim issued in 2010 [paragraph 18].
2. Following British Telecommunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327 it was appropriate to compensate the Appellant for matters arising out of and consequential on the acts of discrimination.  In Ms Durrant’s case that included a lengthy journey to achieving the findings of discrimination including complaints made to the Respondent Police force and the Independent Police Complaints Commission and the protracted nature of the litigation caused in part by defaults of the Respondent including failures to file evidence on time [paragraph 16(f)].

Comment – this appears to be the first authority to consider the Presidential Guidance on injury to feelings, and confirms that discretion may be used to apply the figures in this Guidance for cases presented before September 2017.  This decision confirms, following Reid, that the process of seeking redress following discrimination may sound in the assessment of damages, including the litigation process itself.

20.11.2017