AXD v The Home Office (No 2)

I handed down my liability judgment in this case on 13^th May 2016 ([2016] EWHC 1133 (QB)). I held that the Defendant was liable to the Claimant for damages under the common law tort of false imprisonment in relation to the period 1^st April 2013 to 5^th December 2014 (20 months and 5 days), alternatively from 1^st November 2013 (13 months and 5 days), in the further alternative from 1^st January 2014 (11 months and 5 days). I provided these alternative formulations to address the complex submissions I received on the various Hardial Singh principles, and in recognition of the fact that this case may go further.

At the last hearing the parties agreed that, on account of the density of the issues and the range of potential outcomes, the assessment of the Claimant’s damages, if any, should be adjourned to a further hearing.

Claims are advanced for basic or compensatory, aggravated and exemplary damages. The factual matrix for a proper consideration of these claims is as follows.

It is unnecessary to repeat what I set out in some detail in my liability judgment. I propose to highlight the key points, and to address matters which I left unresolved.

The Claimant was detained at HMP Woodhill between November 2011 and 14^th May 2014 when he was transferred to IRC The Verne. I have found that his detention between November 2011 and 31^st March 2013 was not unlawful. As the authorities make clear (see below), this is not a case where the Claimant falls to be compensated for the “initial shock” of being detained.

According to paragraphs 6 and 7 of the Claimant’s witness statement, his experiences at HMP Woodhill were worse than at IRC The Verne because he was locked up in his cell for far longer. The Claimant’s evidence about this is not altogether clear, but he states that in 2012 and 2013 he was locked in his cell for 21 hours a day, with only 30 minutes of fresh air every day. At IRC The Verne he was locked up from 8pm to 8am. I have found the Claimant to be a poor witness generally, but he was not cross-examined on these matters and in my judgment they are far from being inherently incredible. I accept the Claimant’s evidence in this respect.

According to paragraph 5 of the Claimant’s witness statement:

This seam of evidence is difficult to assess, and again the Claimant was not cross-examined upon it. On the one hand, there are references in the medical notes to persecutory complexes consequent on paranoia; on the other hand, there is a medical note entry for 27^th November 2014 which generally supports the Claimant’s account, at least at around that time. In my view, it is entirely plausible that a gay man with possibly promiscuous tendencies would be the recipient of verbal and physical abuse from other prisoners – that, to adopt the vernacular, would go with the territory. Yet, the Claimant’s evidence is vague in this regard, and it is difficult to gain a sense of how often he was abused in this way. The issue is also compounded by the Claimant’s paranoia, such that the boundary between truth and confection becomes uncertain. Overall, I find that the Claimant received some unpleasant verbal abuse and was physically assaulted on one occasion. I reject the possibility that the Claimant was sexually exploited in prison in the sense that he was the unwilling focus of attention. As Ms Victoria Laughton accepts, he has denied that this was the case.

The Claimant was probably suffering from paranoid schizophrenia by 1^st April 2013, if not before. Given my liability findings, I do not have to be more precise. I am not satisfied that the Claimant abused alcohol at HMP Woodhill, but he clearly was doing so at IRC The Verne – and to a significant extent. The Claimant was taking a so-called “legal high”, “spice”, at both institutions. He freely admitted this in his oral evidence, although it was difficult to gain a clear sense of how often this occurred. I said in my liability judgment that Dr Maloney has undervalued the degree to which the Claimant’s paranoid schizophrenia may have been exacerbated by his substance abuse. To the extent, therefore, that the Claimant’s symptoms are self-induced, this is a factor to which I must have regard. It is not a factor which carries great force, but it does weigh materially in the scales. Equally, in my view, it is relevant that the Claimant presents with an element of anti-social behaviour disorder, and to the extent that my liability judgment did not make this crystal-clear, I accept Dr McKay’s evidence on this point.

Ms Laughton submits that the Claimant’s damages are aggravated by the Defendant’s failure adequately to diagnose and treat his paranoid schizophrenia, from which illness I have found him to be suffering at all times material to my findings. At paragraph 162 of my liability judgment I stated that the nurses responsible for the Claimant’s care at HMP Woodhill were probably negligent. This finding was founded on a number of matters, including the fact that Dr McKay was critical of the absence of proper psychiatric review after July 2013. At paragraph 163 I stated that there is “little evidence of marked, significant or florid psychiatric presentation between July 2013 and May 2014”. After 14^th May 2014 Dr Maloney accepts that the Claimant received adequate treatment for his mental illness.

As against this, I have also found that the Claimant was receiving olanzapine at a daily dose of 5mg between the end of July 2013 and his arrival at IRC The Verne on 14^th May 2014, when his dosage was increased. The Claimant himself agrees that his mental health was “a little bit better” once he was given tablets. In Dr McKay’s view, if the Claimant was in fact taking olanzapine at 5mgs/day (as I have found), this dosage would have contained his symptoms. Dr Maloney did not opine one way or the other, probably because he was proceeding on the basis that the Claimant did not in fact receive any treatment over this period. In any event, he was not cross-examined on the alternative hypothesis that the Claimant was. On the other hand, I note that on 15^th May 2014 the Claimant was telling Dr Fowler that he was hearing voices “all the time” and that nothing caused them to stop. This suggests, if it is reliable, that the Claimant’s symptoms were not fully under control.

In my judgment, the better view on the evidence is that the Claimant’s symptoms improved after 14^th May 2014, and the most important reason for the improvement was the enhancement in the dose of his anti-psychotic drug from a daily dose of 5mgs to 20mgs. However, in the light of all the available evidence, some of which is difficult to interpret, I also find that after July 2013 the Claimant’s symptoms improved to a significant, albeit sub-optimal, extent. Further, and in the light of Dr Maloney’s evidence which I accept, it is probable that between April and July 2013 the Claimant suffered from some unnecessary symptomatology which could have been improved by earlier intervention.

There was a debate between the experts as to whether earlier, effective treatment would have achieved a better prognosis for the Claimant in the long-term. I am aware from other litigation that this issue is hotly contested in the psychiatric community, and to my mind insufficient evidence was adduced before me properly to address it. Given that the burden of proof rests on the Claimant, I am unable to make any positive findings in his favour in this regard.

As a counter-balancing factor (in the Defendant’s favour) I should set out the common ground between Dr Maloney and Dr McKay (see paragraph 6.1 of the Joint Report) to the effect that “detention protected [the Claimant] from harm from heavier substance use and consequential symptoms and effects, and also reduced his risk of re-offending and consequential stresses”.

Ms Laughton also invited me to consider the impact of releasing the Claimant into the community without appropriate supervision and community support being in place. Although I found against the Claimant on this issue within the context of his Article 3 claim, because I was not satisfied to the criminal standard of proof, I consider that it is open to him to invite me to make relevant facts to the civil standard on all the available evidence.

Reference was made by Ms Laughton to the assessment by Prison Community Mental Health Service on 1^st September 2014 and the Community Care Assessment dated 21^st October 2014, both to the effect that the Claimant would be vulnerable in the community if released without an appropriate support package. In the first of these reports it was stated that, if the Claimant were released, he would require referral to a Community Mental Health Team. Dr Cornish’s report, expressing a similar view, also mentioned the risk of alcohol abuse in the community. In the second of these reports, the author suggests that “he would need to be in a supported environment and would need to regain his skills in living independently”, indicative of the degree of institutionalisation which has intruded. The evidence before me was to the effect that the Community Care Assessment was provided to IRC The Verne by the Defendant. On 4^th November 2014 the Claimant’s solicitors wrote to the Defendant underscoring the need for the emplacement of adequate arrangements in the event that he was released from detention.

Paragraphs 7.1 to 7.3 of the Joint Expert report is particularly salient in this regard, and should be cited in full:

I agree with Ms Laughton, consistently with the conclusions reached at paragraphs 154 and 170 of my liability judgment, that the Claimant was released into the community on 5^th December 2014 without any prior warning to his legal representatives, without a confirmed address and without access to mental health care. The Claimant provided details of a friend called “Anwar” with whom he had last spoken in 2011. I draw the inference from paragraph 10 of the Claimant’s witness statement that he did not reveal this last fact to the prison officer, but there is no evidence that any proper inquiry by the authorities was made. The Claimant was also released without being given documentary evidence of his immigration status in a manner which might have allowed him to access the system of welfare and healthcare which exists as a safety net for vulnerable individuals in the Claimant’s position.

In the event, the evidence shows that the Claimant abused alcohol, did not take his medication and slept rough for 12 nights before he reoffended on 17^th December and was re-arrested. I should make clear that Ms Laughton did not seek to submit that the Claimant’s reoffending was caused by the Defendant’s conduct: a combination of ex turpi causa and novus actus precludes such a contention.

The general principles applicable to assessing awards for false imprisonment damages at common law in an immigration context have been helpfully collected by the Court of Appeal at paragraphs 8 and 9 of its judgment in MK (Algeria) v SSHD [2010] EWCA Civ 980:

The “initial shock” point has been further explored in two subsequent cases. In R v Governor of Brockhill Prison, ex parte Evans [1999] QB 1043, Lord Woolf MR reduced the award that would otherwise have been made to reflect the fact that the Claimant had served a lawful custodial sentence of 2 years before being unlawfully detained for 59 days. The Court of Appeal’s award at contemporary values was £5,000.

The identification of features which may aggravate the basic or compensatory award has been furnished, non-exhaustively, in Thompson. There, the Court of Appeal made clear that such features may include, insofar as is relevant for present purposes, behaviour which is high-handed, insulting, malicious or oppressive. Aggravating features can also include the way in which the litigation and trial are conducted.

In Lumba v SSHD [2012] 1 AC 245 Lord Dyson JSC held that disapproval of conduct of the litigation, including a lack of candour, could result in an award of aggravated damages. In R (oao Lamari) v SSHD [2013] EWHC 2130 (QB) HHJ Cotter QC held that the circumstances of release, in consequence of which the Claimant was required to sleep outside for a night, amounted to an aggravating feature.

The principles governing an award of exemplary damages in an immigration context were set out by the Court of Appeal in Muuse v SSHD [2010] EWCA Civ 453. In paragraph 64 of the judgment of Thomas LJ (as he then was) reference was made to the familiar criteria for an award of exemplary damages as explained by Lord Woolf MR in Thompson at page 516, in terms which do not require citation in this judgment. At paragraphs 70 and 71, Thomas LJ said this:

At paragraphs 73-77 of his judgment, Thomas LJ made clear that exemplary damages could be awarded in a case of high-handed and arbitrary, outrageous conduct and manifest incompetence, and may well include a deterrent element. Further, it made no difference to these ascriptions that the misconduct at issue might be systemic.

Finally, in R (oao Santos) v SSHD [2016] EWHC 609 (Admin) the failure to give full and accurate information to the court in a defence to a claim for judicial review was one of the reasons why an award of exemplary damages was merited.

Some general guidance as to the levels of awards for basic/compensatory, aggravated and exemplary damages was provided by the Court of Appeal in Thompson. However, the length of this Claimant’s detention, and the progressively reducing scale of awards as time elapses, makes it difficult to apply the Thompson guidance with any precision.

In PB v SSHD [2008] EWHC 3189 (Admin), Kenneth Parker QC awarded £32,000 basic and £6,000 aggravated damages for 6 months’ unlawful detention for a victim of torture. If there was a period of prior lawful detention in that case, it was of short duration. These awards fall to be uplifted for inflation, and by 10% (in line with paragraph 20 of the judgment of the Court of Appeal in Simmons v Castle [2013] EWCA Civ 1039), by a composite factor of slightly in excess of one-third. The basic award equates to a daily rate of around £230.

In Muuse (loc.cit.) a detention of just over 4 months’ unlawful detention following an initial lawful detention (pursuant to the sentence of the Crown Court) resulted in an award of basic damages of £25,000, aggravated damages of £7,500, and exemplary damages of £27,500. These awards fall to be uplifted for inflation, and the further 10%, by a factor in the region of one-third. The basic award equates to a daily rate of approximately £266. Muuse was an egregious case characterised by the Defendant’s ignoring of the Claimant’s protests that he was a Dutch national who could not be removed from the UK. There was also the factor of Mr Muuse’s family circumstances aggravating the award.

In R (oao NAB v SSHD [2011] EWHC 1191 (Admin), the Claimant was unlawfully detained for an additional period of 82 days following two successive periods of lawful detention which were substantial. At paragraphs 18 and 19 of his judgment in that case, Irwin J observed as follows:

In Lamari (loc.cit.) the Claimant received a total award of £25,000 for 23 days’ detention composed of a basic award of £10,000, aggravated damages in the sum of £5,000 and exemplary damages in the sum of £10,000. The uplifts in relation to these sums are modest because the judgment of HHJ Cotter QC post-dated Simmons v Castle. In that case the damages were enhanced by a finding that the Defendant was in contempt of court.

In the Scottish case of NS (Palestine) v SSHD [2013] CSOH 139 the Outer House of the Court of Session awarded the sum of £36,000, inclusive of interest, for 12 months’ detention, equating to a daily rate of £82. This award was upheld by the Inner House, on the Home Secretary’s appeal. At first instance the Lord Ordinary appears to have accepted the Petitioner’s submissions on quantum. Ms Laughton characterised these as lacking in ambition, and in view of other English authority to which I have referred this would appear to be so. The Inner House accepted that this case was dissimilar from NAB inasmuch as the Petitioner did not chose detention in the UK over freedom in Jordan, but did not deal with Irwin J’s analysis to the effect that it was this factor (on the facts of the case before him, detention in the UK over freedom in Iran) which served substantially to reduce the basic award that would otherwise have been payable.

Finally, in Santos 154 days’ detention attracted an award of £40,000 basic, £10,000 aggravated and £20,000 exemplary damages. This equates to a daily rate of nearly £260. This was another “initial shock” case.

The precedential effect of these comparable cases needs to be considered. In my judgment, these cases are illustrative only, and should not be regarded as providing any clear framework, let alone any form of constraint. These cases are fact-sensitive; and, although consistency in judicial decision-making is important, the evaluative exercise in this domain must be even less precise, and even more of an art, than in the realm, say, of personal injury damages.

Ms Laughton submitted that when assessing the basic award the length of the unlawful detention is clearly the most important factor. It is also relevant that the Claimant is a vulnerable individual who probably suffers from paranoid schizophrenia, and is a refugee whose status ought to have been recognised sooner. Ms Laughton’s further submitted that, applying a tapering approach and paying particular regard to Muuse and Santos, the basic/compensatory award in this case should be in the region of £120,000.

Ms van Overdijk submitted that the following points may be inferred from my liability judgment, namely that: (i) the Claimant was not unfit to be detained on account of his mental health; (ii) a diagnosis of schizophrenia was only warranted on the evidence from July 2013, when the Claimant was assessed by Dr Maloney; (iii) the evidence does not support a finding that the Claimant’s mental health was exacerbated by detention (e.g. there is evidence of substance abuse and anti-social behaviour); (iv) the Claimant’s schizophrenia was adequately treated once it had been diagnosed; (v) there was no deterioration in the Claimant’s presentation after July 2013; and, (vi) the Claimant did appear to improve once he was transferred to IRC The Verne in May 2014, but that may have been the result of a less bullying and more supportive regime, possibly leading to a reduction in his anti-social behaviour disorder.

Ms van Overdijk submitted that the basic/compensatory award in this case should be in the region of £50,000-55,000, the equivalent, she said, of £83-91 per day (based on a total period of 614 days).

In my judgment, it is irrelevant to the Claimant’s basic or compensatory award that his claim for refugee status should have been recognised sooner. This factor is plainly relevant to the liability issues, and it may be of indirect relevance to the subsequent claim for aggravated damages, but it has no pertinence at this stage of the analysis. This is not a case where the Claimant was tortured in Somalia or where his status impacted on his ability to cope with the conditions of his incarceration. Nor, in my view, is it relevant that the Claimant has had a diagnosis of paranoid schizophrenia at all material times – at least, without more. I agree with Ms van Overdijk that I cannot conclude on the available material that the Claimant was unfit to be detained. A failure to treat the Claimant’s schizophrenia could well be an aggravating factor, but there is no evidence that a man with paranoid schizophrenia is worse off in prison than outside, save to the limited extent that his illness may have caused him to believe that he was the subject of taunts and threats when this was not the case. Put bluntly, a person with schizophrenia may in many ways be better off in a closed environment because a mental health team is readily accessible, his drug regime will be imposed, and alcohol will be less readily available. As I have found, the Claimant’s treatment at IRC The Verne was better than it was at HMP Woodhill, but he was also worse off, through his own fault, because he abused alcohol after May 2014.

I do, however, accept Ms Laughton’s submission that the Claimant must have been fearful of being returned to Somalia, and I find that this enhances his basic award to some limited extent. Plainly, however, the focus must be on the period after 1^st April 2013. The enhancement is modest because in my view the Claimant’s insight is not great.

In my judgment, it is relevant that the Claimant was kept in his cell for 21 hours a day at HMP Woodhill, and that the regime at IRC The Verne was less closeted. It is also relevant that he experienced personal difficulties on account of his sexual orientation at both institutions, although the better view is that these improved after May 2014. The Claimant’s anti-social personality disorder exacerbated his problems, both in dealing with prison staff and fellow prisoners/detainees, and this is a factor which weighs against him.

In my view, it is not possible to reconcile the authorities to which I was referred by the application of principle, logic and analysis. Ultimately, the decision must be one of policy, calibrated with reference to the court’s sense of the overall justice of the case. I consider that I must have something of a free hand inasmuch as the Claimant falls to be compensated in respect of a period of detention very much longer than addressed elsewhere, and the authorities do emphasise that the rate progressively falls as time elapses. Even making allowance for this important factor, I am not prepared to go as high as did fellow first instance judges in PB, Muuse and Santos (having due regard also to the fact that Santos was an “initial shock” case and the period of lawful detention in PB was brief).

I take into account all the features of this Claimant’s case, as previously identified, and I refrain from applying a mechanistic approach and/or one tethered to the application of any daily rate.

In my judgment, the appropriate basic/compensatory award in this case should be £80,000. On my alternative formulations, namely 13 months 5 days and 11 months 5 days, the basic awards would be £62,000 and £58,000 respectively.

Ms Laughton submitted that there are several aggravating features in this case, namely: (i) the failure by many officials to consider the correct issues rather than adopt a “blinkered, high-handed and oppressive approach”; (ii) the ignoring of the obvious impediments to deportation which existed; (iii) the Claimant’s vulnerability as a man with paranoid schizophrenia; (iv) the inadequacy of the Claimant’s treatment at all material times; (v) the fact that the Claimant has become institutionalised; (vi) the failure to set up and implement a proper, structured released plan; (vii) the failure to furnish the Claimant with clear evidence of his immigration status before releasing him; (viii) the absence of an apology; and, (ix) the Defendant’s overall conduct of the litigation, in particular the provision of misleading statistics relating to returns to Somalia (other matters are also invoked under this rubric).

Ms Laughton submits that the level of an award of aggravated damages should be in the region of £30,000-40,000.

Ms van Overdijk submitted that the claim for aggravated damages should be dismissed. On these facts there is no aggravation of the illegality, and nothing in the manner in which the detention was continued which added insult to the injury, or would otherwise justify an award of aggravated damages. Her position on exemplary damages (see below) was a fortiori.

In my judgment, the Claimant’s detention was aggravated by four factors. First, although I acquit the Defendant of anything approaching bad faith or deliberately having regard to improper considerations, I do consider that the decision-making in this case was characterised by unacceptable drift and reactivity, with senior officials refraining from taking responsibility for the serious delays that were accumulating and from focusing on the practical realities of this claim. The delays became more serious once Dr Maloney, a doctor respected by the Home Office, gave his professional opinion that the Claimant was suffering from paranoid schizophrenia. At the very least, officials should have insisted that the Claimant was examined by a psychiatrist such as Dr Cornish as soon as possible. Further, no explanation has been given for the failure to re-interview the Claimant in relation to his religious affiliations. Secondly, the Claimant received sub-optimal treatment for his schizophrenia between July 2013 and May 2014. Consistently with the conclusion reached in my liability judgment, he was likely poorly served between April and July 2013, but this adds little to the overall picture. Thirdly, I accept Ms Laughton’s submission that the Claimant should not have been released into the community without a proper welfare plan in place. It was close to inevitable that, vulnerable and institutionalised as he was, the Claimant would abuse alcohol and be unable to cope, and likely that he would be homeless for a period. Fourthly, I also accept Ms Laughton’s submission that the Defendant should have provided at an earlier stage - in Ms Lesley Todd’s witness statement - the unpublished information relating to returns to Mogadishu, eventually disclosed in the replies to the Claimant’s Request for Further Information. I am not critical of her personally, but the Defendant’s duty of candour required the revelation of this information, even if it was unaudited and not necessarily 100% reliable.

I do not accept the relevance or causative potency of the other aggravating factors invoked by Ms Laughton in the context of the Defendant’s conduct of this litigation. In particular, the Defendant’s failure to call witnesses with personal knowledge of the Claimant’s case is not an aggravating factor. All it meant was that I could not properly draw inferences in the Defendant’s favour, and that the case was more likely to be lost.

The appropriate award of aggravated damages in this case is one of £25,000. On my alternative formulations I would reduce it to £15,000 and £13,500 respectively.

Ms Laughton submitted that I should award exemplary damages in this case to reflect the Defendant’s oppressive, arbitrary or unconstitutional conduct in failing to “take responsibility for properly and adequately considering the lawfulness of the Claimant’s ongoing detention”. Further, reliance is placed on the circumstances surrounding the Claimant’s release from IRC The Verne on 5^th December 2014.

In my judgment, the Defendant’s conduct falls short of the sort of oppressive, arbitrary or unconstitutional behaviour by a government department which would merit on award of exemplary damages. Although each case turns on its own facts, and Muuse is indicative only, I do not find myself reaching for the sort of language Thomas LJ deployed in paragraphs 73-77 of his judgment in that case to stigmatise the Defendant’s conduct. Ms Laughton’s strongest point under this head was directed to the circumstances of the Claimant’s abrupt release into the community on 5^th December 2014. I have thought carefully about this, but ultimately I have concluded that it was not entirely unreasonable for the prison officer to believe that the Claimant had an appropriate address at which he might reside.

The Defendant has not apologised for its conduct in this case. In the light of my overall evaluation of it, I do not consider that this failure takes this case across the notional line from the province of aggravated damages into that of exemplary damages.

The Claimant is entitled to interest under section 35A of the Supreme Court Act 1981 from 20^th November 2014 to 5^th July 2016, at the rate of 2% per annum (i.e. at 3.36%). On the total award of £105,000, this yields an additional amount of £3,528.

Ms van Overdijk sought permission to appeal from my liability judgment on two grounds. First, she submitted that I should have drawn the inference that, even had the Claimant brought an earlier appeal against any decision refusing to revoke the deportation order, he would have sought to introduce the issue of his mental health at that stage and before Dr Maloney came onto the scene in July 2013. This would, perforce, have led to the suspension of deportation action and further delay. Secondly, complaint is made of my analysis of the period November 2013 to January 2014.

I ruled at the end of the hearing that in my view there was no arguable merit in either of these grounds. The Defendant did not submit at the trial of this action that I should draw the inference that she now seeks to press. It is true that I drew an inference (in the Defendant’s favour) that the Claimant’s further application in the summer of 2012 to revoke the deportation order on the basis of his sexual orientation and religious affiliations would have been made had the Defendant made a timeous decision on the application as then constituted, but in that context the inference was irresistible (see my analysis at paragraph 235 of my liability judgment, noting the timescales). In my judgment, what the Claimant would or might have done, on the basis of advice, had the Defendant acting with reasonable expedition determined the further claim by the end of November 2012, at least seven months before Dr Maloney’s email was sent, must be, at best, a matter of speculation, not inference. As for the second proposed ground of appeal, this – it seems to me – raises a narrow issue of fact rather than of law.

The Claimant has been largely successful in this action. He has failed in relation to the first period of detention and in relation to his Article 3 claim. The first period of detention put the Defendant to the cost of disclosing the relevant documentation and advancing brief submissions on the point, both in writing and orally. This aspect of the case was quite straightforward. The evidence relating to the Article 3 claim was equally relevant to the issue of quantum of damages.

In my judgment, the justice of the case is met by awarding the Claimant 90% of the costs and the Defendant 10%. A mutual set-off applies, reducing the Claimant’s entitlement to 80%.

Since preparing a draft of this judgment, the Ms Laughton has drawn to my attention that two CPR Part 36 offers were made by her instructing solicitors before and during the course of this litigation. I have invited representations from Ms van Overdijk on the Claimant’s contention that, in the light of these offers, he is entitled to 100% of the costs and to a damages uplift of 10%. I should make clear that my ruling as to costs is provisional, and that it may be necessary in due course to make a final order in different terms.

There must be judgment for the Claimant in the sum of £105,000 (net of any 10% uplift which may flow from the CPR Part 36 offers) together with interest in the sum of £3, 528.