3 would award nothing as they think there was no wrong (bizarrely)
3 would award a pound
2 would award £1,000
1 would award £500

There was only a majority in favour of an award of at least £1 (6:3). No
other award has a majority.

Even if Lady Hale (who went for £500) had been in favour of an award of
£1000 there would have been no majority for that view.

A bit frustrating that they split 3:3 on the vindicatory damages point. I
would have given substantial damages FWIIW. The wrong was constituted by
the detention, not the policy.
Rob



> 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
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/
>
>
>
>
>
>
>
>
>


--
Robert Stevens
Professor of Commercial Law
University College London