NAB, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

I now proceed to decide the question of damages in this case. The substantive judicial review was decided by me and is published as R (NAB) –v- Secretaryof State for the Home Department [2010] EWHC 3137 (Admin). In that judgment I set out fully the facts of the case. I will not repeat them here. This judgment should be read together with the findings of fact there set out.

The Claimant needs to be compensated for false imprisonment derived from a breach of statutory duty on the part of the Secretary of State, leading to unlawful continuation of immigration detention from 14 September 2009 to 4 December 2009. This is a period of 82 days additional detention. It is relevant to note that this period of unlawful detention followed two successive longer periods, when I have found that detention was lawful. The Claimant was a man who should have been deported to Iran, but who persistently and in a determined fashion refused to sign documents which the Iranian Authorities held to be necessary, before they would accept his return. As I set out in the earlier judgment, this refusal for a very long period justified the Claimant’s detention. However, by the beginning of the period identified, the inactivity of the Secretary of State rendered the remainder of his period in detention unlawful, since there was no realistic prospect of removal and the Defendants had no longer any feasible or practicable plan to achieve the Claimant’s removal.

As I have made clear in the principal judgment the fault on the part of the Secretary of State in this case consisted of inactivity and drift. I have not found any bad faith, malice, fraud, insolence or cruelty. In my judgment the facts here do not amount to “oppressive, arbitrary or unconstitutional action by the servants of government” so as to fulfil the relevant category giving rise to exemplary damages as defined by Lord Devlin in Rookes –v- Barnard [1964] AC 1129 and approved in Broome –v- Cassell [1972] AC 1027. The unlawful detention in this case is very different from the conduct analysed by the judge in Muuse –v- Secretary of State for the Home Department [2009] EWHC 1886 (QB) and addressed on appeal in [2010[ EWCA 453.

In short, in my judgment this is not a case where it is appropriate to award exemplary damages.

The authoritative guidance as to the award of aggravated damages was developed by the Court of Appeal in Thompson & Another -v- TheCommissioner of Police for the Metropolis [1998] QB 498. Although there have been a number of awards (and decisions refusing awards) of aggravated damages since then, it appears to me that little or nothing of principle is added, and there is no call for a parade of learning here. Once again, on the facts of the instant case in my view, there is no aggravation of the illegality, nothing in the manner in which the detention was continued which added injury to insult, or would otherwise justify an award of aggravated damages in this case. I decline to make such an award.

I am not convinced that, absent a special statutory basis for the award of vindicatory damages such as arises in a number of Caribbean jurisdictions, such damages have yet been agreed as a discrete species of compensation in English law. I have considered the passage in the judgment of Lord Dyson in Lumba & Another –v- Secretary of State for the Home Department [2011] UKSC 12 at paragraphs 98 – 101. It seems to me there is no support there for a separate claim for vindicatory damages. I do note the passage in paragraph 100 where Lord Dyson implies support for the notion that conventional compensatory damages may have a valuable vindicatory effect, marking illegality on the part of government servants.

The Supreme Court in Lumba agreed by a majority to award nominal damages only in a case of unlawful immigration detention. The decision to detain in that case derived from a secret government policy preventing the release of the claimants. The secrecy meant that no such claimant could possibly challenge the application of the policy to himself. Despite that, the majority in the Supreme Court held that nominal damages were appropriate where, in the absence of the secrecy policy, or if the policy had not been published and open, lawful detention would have followed in any event. The logic of such an award is easy to follow.

That logic does not apply to this case. The very heart of this case is that those responsible for immigration detention had run out of all other options to achieve deportation but had not recognised that.

The Secretary of State sought to argue before me that the Claimant’s persisting refusal to sign the relevant Iranian documents represented contributory negligence, giving rise to all or most of the damage of the continuing detention. Counsel for the Claimant met this argument by suggesting that the tort of false imprisonment does not fall within the ambit of the Law Reform (Contributory Negligence) Act 1945. The argument turns on part of the wording of Section 1 and Section 4:

“1

Apportionment of liability in case of contributory negligence.

(1)

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, ………..the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s hare in the responsibility for the damage……..

4.

Interpretation.

The following expressions have the meanings hereby respectively assigned to them, that is to say-

……………..

“fault” means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”

The question of whether contributory negligence can arise in a case of this kind or in such parallel torts as involve intentional and deliberate misconduct, has been very vexed. The difficulty is attested by the treatment by the editors of McGregor on Damages 18^th Edition at paragraphs 5 – 001 to 5 – 005. The Claimant relies upon various dicta in Lumba tending to diminish the utility of any notion of contribution to the tort in a case similar to this. It may be that a close analysis of those judgments would help if I thought the question was live on the instant facts. However I do not.

As I have already stated, the essence of the breach of duty here was delay and inaction, in the face of the persisting refusal to co-operate on the part of the Claimant. Of course, it is obvious that had he changed his approach, detention could have been ended. The point is that he never did and was never going to, a fact fully recognised by the Secretary of State at the time. His continuing refusal to sign was a given condition and the Defendant had to decide what to do in the face of it. It would seem to me illogical to hold that the Claimant himself contributed to the illegality of his detention on those facts. There would be a real danger in doing so, since the implication would be that the continued detention was at least to some degree justified, which was not my finding.

After some reflection, I have come to a similar conclusion when considering whether the continued refusal to sign represents a failure to mitigate the Claimant’s loss. The basic principle at question here is that identified long ago in the speech of Viscount Haldane LC in British Westinghouse Coal –v- Underground Railway [1912] AC 673 at 689 where he said:

“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposing on a claimant the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

As far as I am aware, the application of this principle to immigration detention is not the subject of any authority. It could not have arisen on the facts of Lumba. At first blush it might be thought attractive to hold that there was unlawful detention here but no damage, because the Claimant could have removed the damage by signing the document. On consideration, I have rejected that, substantially for the same reason I have rejected contributory negligence. To hold that there was a technical breach of the law but that all damage was extinguished by the Claimant’s refusal to sign would once more undermine the principal logic by which illegality has been established. This Claimant’s detention was justified in law for very much longer than otherwise could possibly have been the case, by reason of his refusal to sign the waiver documents. Once again, the Defendant had to decide what to do in the face of that continuing refusal to sign. In such circumstances, to withhold any compensation on the basis the Claimant had failed to mitigate the whole of the loss would be to undermine the basis of illegal detention itself. Moreover, it might be easily read as a signal that almost indefinite persistence by the authorities in detaining such a Claimant was acceptable.

However, all that I have said above does not mean that the continuing refusal to sign is irrelevant for the purposes of compensation. The principle set out in Thompson and Hsu –v- Commissioner of Police for the Metropolis (Supra) at pages 515 – 518 represent the starting point. It is to be emphasised that each case turns on its own facts and there is a very large range of appropriate ways to approach to cases of false imprisonment or unlawful detention. That is exemplified by the very different approaches to compensation and levels of award to be found in reported cases.

In Muuse –v- Secretary of State [2009] EWHC 1886 (QB) John Leighton Williams QC, sitting as a Deputy High Court Judge, awarded £25000 in basic damages for approximately 126 days unlawful detention under the immigration legislation. However, it is necessary to read closely the facts of that case and to understand the enormous impact of detention on that detainee. It is also a case where the outrageous treatment offered to the detainee clearly induced fear and resentment at a very high level.

Equally in B –v- Secretary of State for the Home Department [2008] EWHC 3189 (Admin), Kenneth Parker QC, sitting as a Deputy High Court Judge, awarded basic damages for unlawful detention over a period of about 6 months in the sum of £32000. Once again the behaviour in that case and the impact upon the detainee is of a different nature and extent to the facts here.

Closer to the facts in the instant case, it appears to me, is the case of R –v Governor of HMP Brockhill ex p Evans [1999] QB 1043. There a straightforward miscalculation of release date meant that a prisoner spent 59 additional days in prison at the end of her sentence. There was no illegality behind her entry into custody. The element of avoiding any disruption of ordinary life did not arise. She remained in familiar surroundings for too long and without realising until the end that her detention had been unlawful. All of those factors must have been reflected in the very much lower award, calculated at a rough daily rate, than in either of the two previous examples I have quoted.

What are the critical factors affecting this case? The unlawful detention carried no “first shock” and no disruption of an otherwise ordinary life in the community. By the time illegality arose, the Claimant had already sustained the effects of a long period of continued detention. I bear in mind that this did include some impact on his mental health, but there is no evidence that the additional 82 days of detention had any identifiable incremental impact in those terms. The unusual situation here was that the Claimant chose detention in the United Kingdom over freedom in Iran. For the reasons I have given that does not impact upon the illegality, however in my judgment it does mean that the appropriate level of damages must be very much lower than in most of the reported authorities and it seems to me should be markedly lower even than the appropriate compensation for a prisoner in the position of Ms Evans.

Doing the best I can I award the Claimant compensation of £75 per day, a total award of £6,150.

In response to submissions from all counsel, it was agreed that I would make a single Order covering all necessary points, once my judgment on damages was available. I invite the parties to agree terms of such an Order, and in so far as they cannot be agreed, to make brief oral submissions as against draft on the day when this judgment is handed down.