Dear Rob and all,

 While I did not have yet the chance to read the decision, I think it raises questions which are not only interesting in general, but also for Rob’s framework. The case, as summarised by Neil strikes me as raising similar issues to that raised in Chester v Afshar. While in Chester the claim was based in negligence and here in false imprisonment, both cases (I’m aware of the disputed interpretation of Chester) raise the issue of liability for vindicatory purposes while no but-for causation exists.

 I recall that Rob describes himself as “Hofmanian” so I wonder if Hoffman’s dissent in Chester (which is sound in my opinion) should not lead also to adopt a rejection of the claim in Lumba?

 Rob said “The wrong was constituted by the detention, not the policy”. This somewhat begs the question of the relevance of causation in trespass cases (and again I’m aware of the orthodoxy that it is not). If the claimants could have been detained lawfully, in what sense their right was violated other than the right (shared bay all of us?) the government would not lie, give misleading instructions and the like? But in that case, wouldn’t it be more accurate to say that the relevant wrong is the policy, rather than the detention? (similarly to Hoffman’s distinction between the consequences of the lack of informed consent which on the facts of Chester were not the defendant’s responsibility and the need to vindicate the interest in making autonomous decisions for which full compensation of the consequences is not warranted).

 Of course, the award of substantive damages could be explained, or justified by policy considerations such as deterrence, but I don’t think this would satisfy Rob. 
 I also have doubts (although cannot forM a conclusive view at least till I read the decision) whether substantive amount should be given to someone whose detention could have been lawful 
due to deterrence considerations.

 Interestingly, the Israeli Supreme Court went in a similar direction few years back in the case of Avna’al v State in which the court decided that a) a misleading reasoning was given to the claimant 
by the custom authority for the withholding of an import permit; b) the administrative decision itself could have been supported due to violations of the claimant of the conditions of the permit; 
so c) the court awarded NIS 50,000 (roughly £8000) for the head of damages “injury to autonomy” (previously recognised in the Israeli version of Chester – the case of Daaka – adopting what Hoffman 
in Chester at [34] termed as a modest solatium) under the tort of negligence.  While a substantive award in Lumba-like cases makes (possibly much) more sense than in Avna’al-like cases,
 I have doubts whether this direction is desirable.

Best wishes

Tsachi

On 24/03/2011 10:04, Robert Stevens wrote:

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/

-- 

Dr. Tsachi Keren-Paz
School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 734358
Email: t.kerenpaz@law.keele.ac.uk
http://www.keele.ac.uk/law/staff/academicstaff/tsachikeren-paz/