Dear Colleagues;
The decision of the UK Supreme Court (a large 9-member bench which, it turns out, was split in 3 different ways!) in
Lumba v Secretary of State for the Home Dept [2011] UKSC 12 (23 March 2011)
http://www.supremecourt.gov.uk/docs/UKSC_2010_0062_Judgment.pdf is an important discussion of the tort of false imprisonment, and the basis on which damages for breach of trespassory torts may be awarded.
I will leave it to others who are more across the administrative law issues than I am, to comment on these. But the upshot of the complaint of the claimants (Mr Walumba Lumba from the DRC and Mr Kadian Mighty from Jamaica), foreign nationals who had committed crimes and who had been placed in periods of detention prior to their deportation, was that the policy under which they were detained was illegal. All the members of the SC, I think, agreed that it was an illegal policy (the published policy completely contradicted a "secret" policy that the Government was found to have been applying, along with demanding that its public servants lie about the policy when asked in court!)
On the question of whether the tort of false imprisonment had been committed, a minority of the Court (Lord Phillips, Lord Brown and Lord Rodgers) held that it had not, because it was conceded that had the correct policy been applied, they would have been lawfully detained. But I support the decision of the majority here, who strongly affirmed that the tort of false imprisonment was prima facie committed by detention, that the defendant bore the onus of proving lawful authority, and here they clearly could not. Lord Dyson, who gave the leading judgement for the majority, summed it on this point by saying:
88. To summarise, therefore, in cases such as these, all that the claimant has to
do is to prove that he was detained. The Secretary of State must prove that the
detention was justified in law. She cannot do this by showing that, although the
decision to detain was tainted by public law error in the sense that I have
described, a decision to detain free from error could and would have been made.
But the six members of the majority differed among themselves on the question of the appopriate remedy. Here I find myself in some doubt, but this is how I read the case: three members of the Court (Lord Dyson, Lord Collins and Lord Kerr) held that, since on the facts the claimants would have been justifiably detained and deported anyway, that it was only appropriate to award "nominal" damages for the false imprisonment (£1).
Three other members, however, seemed to support a more substantial award, to signal clearly that this was a serious case of misuse of government power. None of them thought that it was serious enough to warrant an actual award of exemplary damages. Lady Hale supported the concept of "vindicatory" damages and would have awarded £500- see [217]. Lord Hope at [176]-[180] supported the concept of such damages and decided that the figure should be £1000, in agreement with Lord Walker (see [195]).
Here is where I remain puzzled. How do you determine a verdict in this case? The official summary from the Court (see
http://www.supremecourt.gov.uk/docs/UKSC_2010_0062_psV2.pdf ) says that the result of the majority was £1. Does this mean the very simplistic process of counting votes in favour of a particular verdict (3 for £1, 2 for £1000, 1 for £500)? Suppose that in fact Lady Hale had been persuaded at the last minute to support a verdict of £1000?
At any rate, very interesting. There is a lot more in the judgement about the debate on whether or not there is a separate head of "vindicatory" damages, or whether (as Lord Collins suggests) the best way to look at it is to say that there is a "vindicatory purpose" for other types of "conventional" damages awards- see [236]-[237].
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931