Considerations that influence judgments, orders and awards

The award of £1 to Meghan Markle in the United Kingdom as part of compensation for breach of her privacy and copyright by a newspaper with regard to correspondence with her father came as a surprise to many, particularly Kenyans who are used to court awards in the millions for the high and mighty – politicians and state officers.

This piece will look at some cases that were decided in 2021 and try to explain what determines the kind of awards and court orders that are given by judges and the courts in a number of cases.

Starting with the example of the £1 award, this is known in law as a nominal damages award. Its purpose is to establish that the claimant had a right to enforce the claim, but that the monetary award was not necessarily the main reason for the litigation.

That would be the case in the Meghan Markle case; she did not need the compensation money from the newspaper. Rather, she was asserting a more important right; that her confidential information should not be disclosed to the public.

At about the same time the nominal damages award was made, another court in the same country made what was probably the highest payment upon divorce. This was in the case between Princess Haya and her former husband Sheikh al-Maktoum, the Prime Minister of the United Arab Emirates.

The court made an order that could exceed half a billion pounds. It was made up of an upfront payment of £250 million and a bank guarantee of a further £290 million for annual payments due to his former wife and for the maintenance of their two children.

The wife had not sought any financial compensation for herself. The sum was meant to be for the maintenance of the children and for their security because the court found that the wife and children would require security for a long time due to their exposure following the divorce. This was necessary to avoid putting her at the mercy of her former husband through reductions and or delays in making the payment.

The legal bills in this matter were equally high and were estimated at £70 million. In this case, the factor of consideration was the exposure of the former princess and her children and the need to provide them with security that befits their status.

Sued groom’s family

The other reason a court awards damages is where the judge needs to send a message and compensate a person for harm incurred due to the failure of another person from whom that duty is due. This was the case with the claim by Ms Gosia Anthony, who sued the groom’s family after she slipped, fell and injured her hamstring at a wedding party while dancing.

The court was told the reason for her slipping was that a water dispenser at the venue did not have a drip tray and therefore water spilled onto the dance floor. The venue was owned and operated by the family of the groom.

The judge who heard the case agreed that the pub owners had created a hazard by not providing a drip tray or clearing up the spillage. He awarded her more than £30,000 for her pain and reimbursement of her medical costs and the costs of the case.

Sometimes, however, the orders and awards made in some cases are meant to discourage conduct exhibited by a party to the case. That was the case of Mr Yacob Adan. He sued a bakery where he used to work. He claimed that he fell at work, broke his collarbone and sustained brain damage that rendered him unable to cook, wash or dress himself.

He attended court in crutches claiming that he could not walk without them.

However, secretly recorded footage produced in court showed that he went about his life normally and had been seen without the crutches on many occasions. Judge Heather Baucher stated that she was satisfied that although it was true that the claimant had been knocked unconscious in the fall at work, he had exaggerated his injuries and had not suffered the disabilities he claimed in court.

The judge stated that the suit was filed solely for material gain – to take a massive payout from his former employers. The judge declined to make the award. The claim was dismissed and Mr Adan ordered to pay the costs of his former employer’s lawyers in the case.

The judge sent the message that dishonesty and false evidence would not be entertained in the courts – a lesson litigants in Kenya would do well to heed.

Serious abuse of office

The judgments and sentences in criminal cases also come with lessons. One such case was that of Major Michael Whately of the Household Cavalry regiment in the United Kingdom.

The major was charged with serious abuse of office. He tricked authorities in Germany and Sweden into sending to him a haul of tanks and other artillery under the pretext that these would be used in a military museum. Instead, he sold some of the military equipment and kept the money.

In July 2021, he pleaded guilty to the charges. In appreciation of his plea, the judge sentenced him to a two-year suspended sentence with the words that he may leave the court but with his head hung in shame.

He was also ordered to pay a portion of the costs of his prosecution and render 150 hours of unpaid community service. All this was to teach him a lesson that he misused his public office for personal gain.

But it was the case of Ben John that took the law books for the sentence a judge made against a convicted criminal in 2021.

Mr John, aged 21 at the time, was last year accused of and convicted of terror offences after downloading white supremacist documents aimed at spreading terror. When it came to sentencing, the judge thought that the offender’s problem was a lack of education, owing to his age.

Rather than sending the racist convict to a term in prison, Judge Timothy Spencer sought to liberate his mind by sentencing him to stop downloading the supremacist material and instead spend time reading classical literature by Charles Dickens, Thomas Hardy, William Shakespeare and Jane Austen.

He was then to report to court every four months for the judge to test his knowledge on these authors’ works. This sentence drew protests and objections by, among others, the Attorney-General in that country, who referred the sentence to the Court of Appeal on the ground that the sentence was unduly lenient for terror charges.

It was clear that the judge’s intention was to change the mind and hopefully reform the offender from his wayward ways.

These cases give indications of the considerations and objectives of court judgments and orders in both criminal and civil cases. This could range from compensating a victim for loss or damage suffered, to mere legal recognition of a right worthy of enforcement, all the way to punishing an offender, or endeavours at reform for the offender.

The writer is Head of Legal at Nation Media Group PLC. [email protected]