FXS v The Mulberry Bush Organisation Ltd

This judgment relates to damages and costs.

FXS is the claimant. He was placed at the Mulberry Bush School (“the School”) on 19 June 2008. He was aged 9 at the time of the placement and remained at the School until September 2009, when he was withdrawn by his father - JLM. FXS alleged that during his placement the School acted negligently, and in breach of its duty, by (amongst other things) restraining him frequently and with excessive force; inappropriately confining him to his room; and failing to manage his behaviour appropriately. Further, or alternatively, assaulted him during the restraints, and/or the acts of restraint constituted battery, and/or trespass to the person. It was also alleged that the School falsely imprisoned him, on at least two occasions, by placing a towel in the doorway of his room to prevent him from leaving.

On 10 June 2024, (following a 9-day trial heard in three different tranches over the course of a year) I handed down my judgement on liability only. See [2024] EWHC 1406 (KB) for the full background circumstances and reasons for concluding that:

The recoverable damages and costs remain in dispute. After my judgment on liability was handed down, the parties were directed to provide written submissions. FXS claims basic and aggravated damages. He also claims costs on the indemnity basis. I have set out below, a summary of the written submissions provided by both parties, but I have not addressed every point that was raised; only such matters as have enabled me to determine the outstanding issues.

Ms Walker submitted that the face down restraints were inevitably humiliating and degrading, as well as dangerous, given the risk of not being able to breathe. She challenged the submission that had been made by Ms Foster (at the end of the trial) that, “the vast majority of restraints were appropriate in light of [FXS’s] behaviour, [FXS] would therefore have been unavoidably distressed in any event and the limited incidents in question would represent only minor transitory events in the overall scheme of his placement…” and that any damages would sound in the “hundreds”. Ms Walker submitted that FXS is entitled to substantial damages, and any suggestion that the impact of a battery is lessened by other experiences of legitimate physical contact, is not supported by authority. Ms Walker further submitted that the face down restraints were clearly not “minor transitory events,” because FXS specifically reported them to his father.

As to the quantum of basic damages, Ms Walker relied on Shah v Gale [2005] EWHC 1087 (QB). In the Shah case, Mr Justice Leveson (as he then was) awarded £750 in basic damages to compensate Mr Shah’s estate for “…the physical discomfort, distress and inconvenience of the assault committed in the very short space of time between the moment when his home was unlawfully entered and the knife attack without any reference to personal injury.” That sum, with inflation and the relevant uplift, would today be £1,660.31. The learned judge in Shah also awarded aggravated damages in the sum of £2,000 (which would now be £4,427.50). Ms Walker submitted that as there was no battery in the Shah case, FXS should be awarded basic damages in excess of £1,660.31. She invited the Court to award damages in the sum of £3,000 for each battery, making a total of £9,000.

Ms Walker submitted that aggravated damages would be appropriate for the following reasons:

Ms Walker submitted that aggravated damages in the sum of £8,000 would be appropriate.

Ms Foster submitted that the incidents of battery justify only a very modest award of damages. She invited the Court to take into account the following matters:

Ms Foster submitted that, in determining the quantum of damages, the Court may be assisted by considering the JC Guidelines (17th Edition) - Chapter 14 “Minor Injuries (“minor injuries guideline”). She invited the Court to note that a minor injury, with recovery within seven days, would attract an award of “a few hundred pounds to £840”.

Ms Foster submitted that to the extent that Ms Pusey engaged in restraints outside the terms of the Policy, this was done in extremis and not due to any deliberate intent. Furthermore, there is no evidence that her actions endangered FXS; in fact, they kept him safe. Ms Foster submitted that the suggestion that Ms Day “allowed” Ms Pusey to commit two further assaults is absurd. She further submitted that the suggestion that the School was “high-handed” and “callous,” in its defence of the claim, is inappropriate and ignores the fact that the School succeeded in its defence of the best part of the claim.

Damages for assault and battery can be awarded absent injury (see McGregor on Damages, 22^nd edition (at §43-001)). FXS was not physically injured as a result of the face down restraints. Therefore, compensatory damages are limited to injury to feelings (i.e. discomfort, disgrace, and humiliation). There are no directly comparable cases. In any event, comparable cases are illustrative only; they should not be regarded as providing a rigid benchmark as each case will be fact sensitive. They provide some indication of the general level of compensation that may be awarded to achieve a degree of consistency. Aggravated damages (if claimed) can be awarded in addition to basic damages, where there are features about a defendant’s conduct justifying such an award - see Thompson v Commissioner of Police of the Metropolis and Hsu v the same [1998] Q.B. 498 CA per Lord Woolf at p 514G-H). Such features may include insulting, malicious, oppressive, or high-handed behaviour by those responsible for the assault/battery or the way in which the litigation has been conducted. 

On 16 June 2009, FXS was held on the floor by Ms Pusey with weight applied to his back. The records do not indicate how long FXS was held in this position, but it was long enough for Ms Pusey to call for support and for another member of staff to attend his room. Approximately two weeks later, on 29 June 2009, Ms Pusey held FXS in a wrap (holding his arms across one another) face down on his bed. FXS was held in this position for “roughly 10 minutes before being able to talk about what could help him to settle.” Given the context, this was on any view, a long time. On 15 September 2009, FXS was put in a wrap and pushed onto the ground face down by Ms Pusey. The length of time FXS remained in this position is unknown, but it was long enough for Ms Pusey to call for support and for two members of staff to attend.

Ms Pusey was not a witness at the trial, but even on the assumption that she was doing her best to keep FXS and others safe from harm it would not, as submitted by Ms Walker, render each face down restraint any less of a battery. There is an inherent risk to safety in the use of face down restraints as they may cause breathing problems due to the compression of the chest and airways. Staff were not trained in face down restraint techniques and the Policy expressly prohibited face down restraints. Although FXS was frequently made subject to physical interventions, being restrained in a face down position was inevitably a degrading and humiliating experience. I reject the suggestion that the batteries were part of what was otherwise a lawful restraint. The records do not indicate that the face down restraints were accidental; on each occasion FXS was held in a wrap in a face down position. As stated above, on 16 June 2009, weight was applied to FXS’s back whilst he was on the floor. On 29 June 2009, Ms Pusey held FXS in a face down position for approximately ten minutes and there is no record of a prior physical restraint. On 15 September 2009, there is no indication, from the record, that the wrap that had been applied was ineffective. Nor is there any recorded justification for using an alternative lawful restraint. I also reject the suggestion that the impact of a battery is lessened because FXS would have been physically restrained by some other legitimate method, and I note that no authority for that proposition was provided. In my judgment, the fact that the vast majority of the physical restraints were proportionate, has no bearing on whether FXS is entitled to substantial damages for the restraints which constituted a battery.

In their joint expert report, dated December 2022, Ms McKenzie (expert Child Protection social worker instructed on behalf of FXS) and Mr Vince (Care and Education Management expert instructed on behalf of the School) agreed that FXS was distressed by the restraints; this includes both the lawful and unlawful restraints. There was no direct evidence to indicate that FXS found the unlawful restraints more distressing than the lawful restraints. FXS did not give evidence at the trial and, due to the passage of time, the recollection of the factual witnesses was not as clear, or as detailed, as it might otherwise have been. Therefore, the School’s records provide the only insight into FXS’s presentation immediately after each incident. However, I accept the submission made by Ms Walker that the unlawful restraints could not be properly described as “minor transitory events.” JLM gave evidence that FXS had specifically reported that he had been restrained face down. This aspect of his evidence was not challenged during lengthy cross-examination. FXS had also complained of being pushed over and bent forward which had made it difficult for him to breathe. It is reasonable to infer, that this was a reference to the occasion when FXS was “pushed to the ground” by Ms Pusey and held face down against the bed for “roughly 10 minutes”. I am satisfied that FXS was distressed and humiliated by the experience of being restrained face down.

In determining the quantum of basic damages, I have taken into account the features referred to in paragraphs 14 and 15 above. Individually and cumulatively, the risks, lack of training, and breach of the School’s Policy, are serious. In these circumstances, a substantial award is appropriate. Having used the Shah case (noting that there was no battery in that case) and the minor injuries guideline as a cross check, I conclude that each instance of battery should sound in £2,000 in damages, making a total of £6,000.

It can be difficult to draw a distinction between injury to feelings caused by the wrong itself, and any injury to feelings caused by the manner in which the wrong was committed. As a consequence, there is a risk of double counting or underestimating any compensation. In my judgment, the injury to FXS’s feelings caused by the battery itself is adequately compensated by the basic award, save for two key features worthy of particular disapproval:

In my view, FXS is entitled to aggravated damages in the sum of £4,000.

Ms Walker submitted that this is not a case, in which it would be appropriate for the false imprisonment, to attract nominal damages only. She further submitted that there is no suggestion that the imprisonment would have occurred lawfully under any existing legal and policy framework. She invited the Court to conclude, that in respect of each occasion on which FXS was secluded in his room, he would have experienced some “shock of detention.” She referred the Court to the following comparable cases:

Ms Walker submitted that in respect of the period of false imprisonment on 15 May 2009 (which lasted just under 5 hours) it would be appropriate to make an award of £4,000. The other instances of false imprisonment should each be awarded £1,000. This is less than the guideline in Thompson which suggests that an appropriate sum for the “first shock of detention” would be £500 for the first hour (current rates would make it £1,325.76), with an additional sum awarded after the first hour on a reducing scale.

Ms Walker also referred the Court to R (on the application of MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980 AC and AS v Secretary of State for the Home Department [2015] EWHC 1331 (QB) where aggravated damages in the sums of what would now be £9,538.60 and £7,473.89 respectively, were awarded for false imprisonment. She submitted that, in this case, it would be appropriate to make an award of aggravated damages in the sum of £10,000 in light of the following features:

Ms Foster submitted that, taking into account the following matters, the incidents of false imprisonment justify only a very modest award of damages:

Ms Foster referred the Court to the following cases:

Ms Foster submitted that any party may make representations to the LAA if it considers that an action is not sustainable. The LAA is perfectly able to make independent decisions about the funding of litigation. Ms Foster further submitted that the School’s representations have been borne out by the dismissal of wide-ranging allegations of negligence.

Under the heading “Contributory conduct,” Ms Foster submitted that FXS’s conduct and challenging behaviour, formed part of the wider picture and should be taken into account in the assessment of damages.

Compensatory damages for false imprisonment are intended to compensate for the loss of liberty, shock, and humiliation. Loss of reputation does not apply in this case. Once again, there are no directly comparable cases. The daily rates which can be calculated from other awards are by way of cross-check only.

FXS was falsely imprisoned on 14 occasions. On each occasion the towel method was used to confine FXS to his room whilst leaving a gap in the doorway, through which members of staff could speak to him. The dates and periods of confinement (where known) are set out below:

There is no evidence that the purpose of confining FXS to his room was ever discussed with him in advance, and contrary to the statutory guidance, it was never discussed with his parents as part of a planned strategy. To the extent that it is suggested that FXS would have been in his room in any event, that is not supported by the evidence. On each occasion FXS was initially at liberty but was then confined in his room; the door was used as a barrier to physically prevent him from leaving. Therefore, he would have experienced an "initial shock". Sometimes FXS was detained for a relatively short period and on one occasion it was for a very long period.

The towel in the door enabled members of staff to speak to FXS. Ms Day stated in her witness statement that the towel method “enabled the staff to put some distance between them and [FXS] when he was attacking them.” When FXS stopped attacking and moved away from the door it would be opened. However, there was no evidence to suggest that FXS was behaving violently “during all periods of towel usage….” The records for 12 June 2009 state that when FXS was confined to his room he was “crashing about…and pulling on the door”. This behaviour could be connected to his emotional and behavioural issues, but it could equally have been a response to being confined to his room. What is clear is that FXS was confined to his room when his behaviour was disruptive, but he was not behaving violently throughout on all occasions. For example, on 15 May 2009, there is no reference to any violent behaviour either before or whilst being confined to his room. On 8 June 2009, there is no reference to violent behaviour whilst the towel method was being utilised. However, even if the towel method constituted “short interludes in the context of lengthy episodes of disruptive behaviour,” I am satisfied that there is no good reason why that should go to reduce the damages.

In my judgment, it is reasonable to infer that FXS was encouraged to calm down by members of staff whilst detained in his room. However, the confinement, in and of itself, would have been distressing. The record from 21 June 2009 indicates that, in response to the towel method, FXS pushed things from his bedroom up against the room and then moved them back again. In any event, I accept the submission made by Ms Walker, that FXS is not required to prove that he was more distressed at being falsely imprisoned, than by being lawfully restrained, in order for the false imprisonment to sound in substantial damages. FXS would have been less distressed had the School complied with its duties. I accept that the School was doing its best to keep FXS and others safe from harm but confining him to his room was unlawful.

Ms Foster referred to the case of R. (on the application of NAB v Secretary of State for the Home Department) [2011] EWHC 1191 (Admin) which related to a claimant who refused to comply with a requirement to sign documents to facilitate his deportation. I did not find this case helpful. At all times FXS’s disruptive behaviour was due to his special educational needs and/or disabilities. I reject the suggestion that his behavioural difficulties are relevant for the purposes of the assessment of damages; it implies that the humiliation of a child is somehow less serious if he exhibits significant challenging behaviour.

In determining the quantum of basic damages, I have taken into account the features referred to above. For the period of false imprisonment on 15 May 2009 (which lasted for nearly 5 hours) FXS is awarded £2,000. Doing the best I can, I award the sum of £300 for each of the other periods of false imprisonments. The sum for the shorter periods of unlawful imprisonment reflects the fact that: (i) on six occasions FXS was confined to his room for up to 20 minutes; the majority were (or could be inferred to be) towards the lower end of that time period; and (ii) although on the other seven occasions the time periods are unknown, it is unlikely that FXS was confined to his room for up to one hour; it is likely that the time period was somewhere between a few minutes and no more than 30 minutes.

There was no evidence that the School sought any advice at any stage between 14 December 2008 and 17 September 2009. The School continued to use the towel method even after JLM raised objections in an email dated 8 September 2009. In that email, JLM referred to FXS being “forcibly detained” and that this was contrary to legislation. The practice also continued after the social worker stated on 14 September 2024 that she was “not happy” with the towel method.

In these circumstances, I award aggravated damages in the sum of £3,000.

In summary the award for damages is as follows:

Ms Walker submitted that FXS is the successful party. She invited the Court to exercise its discretion to order the School to pay his reasonable costs on an indemnity basis. In support of this submission Ms Walker pointed to the School’s repeated attempts to procure the discharge of FXS’s legal aid certificate. In particular, in January 2022, the School’s solicitor suggested (to the LAA) that FXS’s solicitors had provided the LAA with information which contradicted assertions (with regard to the expert evidence of Dr Rippon) that had been made at a case management hearing in June 2021. Ms Walker submitted that the School’s solicitor had not attended the case management hearing, and in any event, contradictory assertions had not been made.

Ms Foster submitted that FXS should not have the benefit of an order for costs. Alternatively, FXS should be awarded costs in respect of the issues upon which he succeeded, and the School should be awarded costs in respect of the issues upon which it succeeded. Furthermore, the appropriate way in which to achieve this objective would be to apply a percentage reduction in both cases. This would properly reflect (amongst other things) the fact that FXS did not succeed on any issue that required expert evidence.

There is no dispute as to the applicable principles. In short, in accordance with the general rule (see Civil Procedure Rule 44.2) the unsuccessful party will be ordered to pay the costs of the successful party having taken into account all matters, including whether a party has been partially successful and conduct both before and during the proceedings. As stated in Bank of Credit and Commerce International SA v Ali (no 3) [1999], NLJ 1734, Vol. 149, “For the purposes of the CPR success is not a technical term but a result in real life, and the question as to who has succeeded is a matter for the exercise of common sense.”

FXS is the successful party. The updated schedule of loss and damage dated 12 December 2022, claimed special damages in the sum of £32,776 plus £140,000 for pain and suffering, making a total of £172,776. The School could have made an offer, even a modest offer. It did not. Therefore, for FXS to recover any compensation the matter had to proceed to trial.

The claim in negligence did not succeed, but I am satisfied that it would not be appropriate to limit the recovery of costs or make an issues-based costs order. In reaching this conclusion I note that the face down restraints and use of the towel method were central to this case and took up the vast majority of court time. Furthermore, all three heads of claim were intrinsically linked. To separate the issues, at this stage of the proceedings, would be a hollow exercise given that in relation to the negligence claim, the evidence from the factual and expert witnesses provided helpful context and was extensively relied upon by both parties. This included evidence with regard to the strategies deployed by the School to manage FXS’s challenging behaviour, the training and experience of the staff and the ethos of the School. In these circumstances, I see no good reason to depart from the general rule.

The plain fact is that the School fought hard, successfully defended the weakest elements of the claim, but ultimately lost.

Should the costs be on the standard basis or the indemnity basis? The critical requirement for an indemnity order is some conduct or some circumstance which takes the case “out of the norm” (see Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 87t §31 and §39) or "something outside the ordinary and reasonable conduct of proceedings" (see Esure Services Ltd v Quarcoo [2009] EWCA Civ 595.

I can deal with this matter briefly.

Ms Walker primarily relied on the School’s application to discharge the legal aid certificate. I am not persuaded that the representations made to the LAA justifies costs on the indemnity basis. I accept that it is entirely legitimate for a party to make representations to the LAA if it considers that such action is appropriate. Without more, I concluded that the conduct of the School’s legal representative (presumably on instructions) does not meet the threshold for an award of costs on the indemnity basis. In my judgment it would be unjust and disproportionate to order the School to pay indemnity costs in this case.

For all these reasons, I order that the School pay FXS's costs of the claim, on the standard basis subject to detailed assessment, if not agreed.

Ms Walker invited the Court to approve the most recent costs budgets. Ms Foster objected to this course. She submitted that the correct procedure is for the additional costs to be considered in the context of a detailed assessment.

Both parties had provided updated costs budgets in light of the unforeseen additional trial days. In accordance with CPR 3.15A I am satisfied that it is appropriate to approve the costs budgets. The assessment of those additional costs is to be deferred to the process of detailed assessment (to be dealt with at the same time as the remainder of the assessment of costs), if costs are not agreed.

I am grateful to counsel and those that instructed them for the hard work which evidently went into the preparation of this case for trial.

The parties should seek to agree terms of an Order that reflects my decision on quantum and costs.