MK (Algeria) v Secretary of state for the Home department

This is an appeal with permission granted by Sir Richard Buxton on 25 November 2009 against orders made by Ms Belinda Bucknell QC sitting as a deputy High Court judge in the Queen's Bench Division on 3 April 2009.

The proceedings arise out of the appellant's admitted unlawful detention by the respondent Secretary of State for 24 days from 14 April 2008 to 7 May 2008. The orders complained of are: 1) the judge's award of £8,500 damages, which is said to be low on grounds which I will explain; and 2) her order that the appellant should pay the defendant's costs of the proceedings incurred after 31 March 2009.

The background is as follows. The appellant is a national of Algeria born in 1973. He came to the United Kingdom in 2001 and claimed asylum. That was refused on 13 March 2001. His appeal against that refusal was dismissed on 28 April 2004. On 2 June 2005 he married his wife, who was an EEA national born in Portugal. On 16 December 2005 he was granted a five-year EEA residence card. That was in right of his wife's exercise of her EEA rights. In April 2007 the appellant sent his new Algerian passport to the Secretary of State with a request that it be endorsed with his right of residence. On 3 September 2007 the appellant and his family moved to King’s Lynn. On 27 September 2007 the respondent wrote to the appellant at an address on their records, not being the King’s Lynn address, seeking evidence that the appellant's wife was exercising her EEA treaty rights. There was no reply. At length on 22 November 2007 the Secretary of State decided to revoke the appellant's residence permit on the asserted basis that the appellant's "EEA family member", that is of course his wife, was no longer exercising treaty rights in the United Kingdom. However, as was common ground, notice of this decision did not reach the appellant at the time. His passport had still not been returned. The next he knew was that on 10 April 2008 a number of immigration officers (stated to be seven or eight), together with a police officer, arrived at his home at King’s Lynn, arrested him in the presence of his wife and child and removed him to a place of detention. It is said that they had his correct address because it was revealed through "enforcement checks" so it must presumably have been on a Home Office file.

On 16 April 2008 the decision of 22 November 2007 and a Reasons for Removal letter was served on the appellant. On the same day, 16 April, the appellant's solicitors wrote asserting that the appellant's wife was working and continued to exercise her treaty rights in the United Kingdom. That was indeed the case. The solicitors asked that removal directions which had been set should be cancelled. On 17 April 2008 the Secretary of State declined to do so unless judicial review proceedings were lodged. The appellant lodged an appeal to the Asylum and Immigration Tribunal against the revocation of his residence card. On 22 April 2008 further removal directions were set for 27 April. On 25 April judicial review proceedings were lodged at the Administrative Court. On 7 May, in the face of opposition from the Secretary of State, an immigration judge granted bail to the appellant, thus bringing to an end his period of detention.

On 12 June 2008 the late Hodge J granted judicial review permission. On 27 June 2008 the appellant's appeal against the revocation of his residence card was allowed. There followed some correspondence between the parties, which is summarised in the appellant's skeleton argument conveniently as follows. On 16 March 2009 the appellant wrote to the respondent inviting settlement and making a Part 36 offer of £50,000. On 24 March 2009 by telephone the respondent or the Treasury Solicitor declined to pay any such sum but offered £2,000. On 25 March 2009 Munby J ordered the Secretary of State to produce the appellant's file of papers in their custody. That had been sought under the Data Protection Act. The appellant refused the counter-offer of £2,000. On 27 March the respondent wrote apologising for a late skeleton argument and making a further offer, this time of £5,000. On 31 March the appellant refused that offer but made a further counter-offer of £28,000 plus £10,000 aggravated damages. The respondent on that date conceded that the appellant's detention had been unlawful, maintained his offer of £5,000 and no more and submitted detailed grounds of defence. Some of the papers kept under the Data Protection Act were provided or served.

So the matter went before the deputy High Court judge a few days later on 3 April 2009. By that stage, as the judge observed at paragraph 4 of her judgment, the Secretary of State had conceded that the decision to revoke the appellant's residence card and the removal directions should be quashed and that there should be a declaration that the appellant's detention had been unlawful. Accordingly, all that in effect remained was a claim for damages and costs.

The unlawfulness of the detention, as the correspondence shows, had been conceded on 31 March 2009. That was in the Secretary of State 's detailed grounds of defence. It was done on the basis that the appellant's wife was throughout exercising treaty rights so that there was no proper basis for the withdrawal of the appellant's residence permit. As I indicated at the outset, the judge awarded £8,500 damages for unlawful detention or, as it is perhaps more familiarly known, false imprisonment. The appellant has two complaints about this: 1) it is too low as a figure for standard compensatory damages; and 2) there should have been an element of aggravated damages, which would have of course have increased the figure further. The appellant also complains, as I have foreshadowed, about the deputy judge's order for costs.

I turn to the first of these complaints. There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans [1999] QB 1043; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.

In Thompson the court gave specific guidance (515 D-F) to the effect that in a "straightforward case of wrongful arrest and imprisonment" the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten years ago and, while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation. Mr Singh for the respondent Secretary of State before us commends in particular the decision of Mr Kenneth Parker QC, as he then was, in Beecroft v SSHD [2008] EWHC Admin 3189. That is a helpful decision. It is very different on the facts from the case before us and it is right to say, as indeed Thompson itself makes clear, all these case are fact-sensitive.

The appellant's principal submission on this first issue as to standard compensatory damages is that the deputy judge has paid insufficient regard to the particular facts surrounding his particular detention. This is all the deputy judge had to say, paragraph 9:

But there is, says the appellant, a good deal more to it than that. His points are crisply put in counsel's supplementary skeleton argument as follows:

The respondent accepts (see paragraph 15 of the detailed grounds of defence of 31 March 2009) that at the time of the appellant's detention on 14 April 2008 there was no "strong evidence" that the appellant's wife was "no longer" exercising treaty rights in the United Kingdom, but chapter 55.9.2 of the applicable Home Office guidance indicates that where the subject is married to an EEA national, detention should not be considered without such strong evidence. This was the specific basis on which on 31 March 2009 the respondent conceded that the detention had been unlawful.

It seems to me worth emphasising that the true ground for holding the appellant's detention unlawful is not and cannot be some departure from Home Office guidelines. They are not a source of law. The true ground is that from start to finish the appellant was entitled to rely on EEA rights of residence derived through his wife. The respondent seems to have based her decision to revoke the appellant's EEA permit only on the fact that there had been no reply to the Home Office letter of 27 September 2007 seeking evidence as to the appellant's wife's exercise of her rights. It seems to me extraordinary that that failure to reply, for which there might be many reasons such as a simple change of address, was regarded at the time as sufficient to take such action, and then five months later to descend on the appellant and detain him and to do so, as it happens, at a different address from that to which they sent the September letter but which was in fact in their files. Thereafter, as I have made clear, two days after they detained the appellant they were told in terms by solicitors that the appellant's wife was exercising her treaty rights.

There is no explanation as to what the Secretary of State made of this. Did she disbelieve the solicitor? Did she not at least consider that some further inquiry should be made? Nothing in fact was done. The respondent Secretary of State opposed bail on 7 May 2008. In response to the judicial review she had first put in what can only be described as a rambling Acknowledgement of Service, dated I think 20 May 2008, which takes extremely fragile points about whether the appellant was "appeal rights exhausted". As I have made clear, the illegality of the appellant's detention was not accepted until 31 March 2009 and then in grudging and not wholly appropriate terms.

In my judgment a higher award of this case than the £8,500 given by the judge is justified by way of simply compensation. The right figure to my mind would be £12,500. That is before one gets to aggravated damages, which is the subject of the second point in the case, to which I now turn.

The argument is that the deputy judge should have allowed the appellant's application to seek aggravated damages. For the meaning which is to be attributed to aggravated damages it is necessary to go no further than the leading case I have already cited, Thompson, which has this at 516B:

I consider, in contrast to the deputy judge (see paragraph 7 of her judgment), that this is pre-eminently a case for aggravated damages. The Home Office, I am very sorry to say, have acted in a blinkered and high-handed manner, I have already given the details which to my mind justify such a conclusion. However the deputy judge declined to entertain the aggravated damages claim. This is what she said:

“Also at the outset of the hearing the claimant sought leave to add to the claim for damages simpliciter a claim for aggravated damages and a claim for special damages. I should mention in relation to this that the skeleton served on behalf of the claimant on 23rd March 2009 made no mention of the damages claim at all, except for a brief reference in the last paragraph which merely stated that the claimant was entitled to damages. I was told that the defendant had had no notice in open correspondence that a claim for either aggravated or special damages might be added, and the only notice which had been given was in without prejudice correspondence of very recent origin. The claimant submitted that there is no requirement in judicial review proceedings for damages to be pleaded as they must be in other divisions of the High Court. That may be so, I express no view on that point, but fairness requires a defendant to be given proper notice that aggravated and/or special damages are to be claimed, with sufficient detail provided to enable the defendant to investigate the facts relied upon, research the law and, if thought appropriate to do so, to make an offer to settle in light of such claims. An application made on the morning of the hearing does not satisfy that requirement. Accordingly, the application is refused.”

The appellant says that CPR Part 54 dealing with judicial review does not require that aggravated damages be pleaded in the claim form. That is true on the face of it, though it would plainly be better if such a claim were so included. That would make for clarity and the avoidance of any uncertainty as to what was being sought. In any event, however, the real question must be whether the defendant has fair notice of such a claim where it is sought to be advanced. Here the appellant had in correspondence relied on many factors which pointed to the making of an aggravated damages claim. More important, perhaps, is the fact that the respondent's detailed grounds of defence dated, as I have said, 31 March 2009 dealt in terms with aggravated damages notwithstanding the fact that there was no formal claim before the court for such relief. The issue is dealt with through paragraphs 28 to 32 of the grounds of defence and is dealt with not in great detail but in something considerably more than merely skeletal form.

Mr Singh, for the respondent, submitted this morning that we should pay attention to a very late pleading on the appellant's behalf which particularised the aggravated damages claim, in particular at paragraph 14 of that document. He takes issue with some of the facts there asserted. He says that had his client had proper notice of these matters, he might have been in a position to call evidence on some of the factual points. I have considered that with some care. There is no doubt that the aggravated damages pleading by the appellant came late. Equally there is no doubt, as I have just explained, that the respondent was able to deal with aggravated damages to the extent that that was done in paragraphs 28 to 32 of the grounds of defence.

I have concluded that the potential factual issues to which Mr Singh was able to point are in truth marginal. The overall picture here is patent from uncontentious facts. I would not therefore accede to Mr Singh's submission that if aggravated damages are in the court's contemplation the case should be adjourned for further investigation and evidence.

In the particular circumstances that I think would be disproportionate. In the result I would award the sum of £5,000 by way of aggravated damages and I make it clear that I have based that figure advisedly on what seemed to me to be the admitted or uncontentious facts of the case. Accordingly, if my Lord and my Lady agree, the total award of damages to the appellant will be in the sum of £17,500.

That leaves the last complaint relating to costs. After judgment was delivered there followed a long exchange between bench and bar relating to issues of costs. The respondent was seeking her costs from 27 March 2009. The correspondence which I have described by reference to the summary in the appellant's counsel's skeleton was gone over. It was submitted for the respondent that from 27 March at the latest it was clear that the appellant's solicitors were not adopting a reasonable approach towards settlement. It was on that date that the respondent made a counter-offer of £5,000, which, as I have shown, was refused on 31 March. The respondent's contention was that the appellant had made hopelessly exaggerated offers to settle. At length the deputy judge ordered that the appellant have his costs up to 31 March 2009, the date on which the respondent conceded liability, but that the respondent should have her costs thereafter.

Granting permission to appeal Sir Richard Buxton said this in relation to the costs:

I entirely agree with that reasoning. It seems to me that the judge's order that the respondent have her costs against the appellant from 31 March was wrong in principle. However, it is to be noted that the appellant's counsel at trial conceded that there should be no order for costs from 31 March. She was not, it seems, herself asking for the appellant's costs beyond that date. In her grounds of appeal the same position is taken, though in a supplementary skeleton she asserts that the appellant should have had all his costs at first instance. In my judgment the deputy judge cannot really be criticised for not making an order more favourable than what was being sought by the appellant through her counsel and in those circumstances the fair and proper result here is to quash the judge's order for costs in favour of the respondent and to say that there should be no order for costs from 31 March in relation to the first instance proceedings.

For those reasons I would allow this appeal to the extent indicated and make the orders which I have described.

I agree.

I also agree.