Does this extraordinary outcome not suggest a severe lack of
leadership from the President of the Court, or at least failure to
co-ordinate the magnificent nine to produce a clear result? How many
of them will be needed for the next UKSC case on the subject?

Hector

--
Hector L MacQueen
Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting Robert Stevens <robert.stevens@ucl.ac.uk>:

>
> 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
>
>
>



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