Laura Davidson argues that until the Supreme Court reviews a recent Court of Appeal decision, compensatory awards for ‘technically’ unlawful detentions are likely to be greatly reduced.

The Court of Appeal recently dashed the hopes of many a psychiatric patient when it upheld the first instance decision in Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79.

Bostridge had a diagnosis of schizophrenia and was detained under section 3 of the Mental Health Act 1983 (MHA). He was later discharged by a first-tier (mental health) tribunal, briefly postponed so he could be placed on a community treatment order (CTO). Thus, as section 17A(2) MHA provides that only a person ‘liable to be detained in a hospital in pursuance of an application for admission for treatment’ can be made subject to a CTO, it was unlawful and invalid – as was his later recall to hospital under section 17E(6).

The defect was finally noticed at a third tribunal hearing, and Bostridge was discharged and immediately lawfully readmitted and detained under section 3.

While accepting it caused his false imprisonment and/or acted unlawfully under section 6 of the Human Rights Act 1998, since he had fulfilled the criteria for detention, the trust refused to pay compensation.

An independent psychiatric report agreed that he had been detainable throughout. Applying two immigration cases (R v SSHD, ex parte Lumba [2011] UKSC 12 and R v SSHD, ex parte Kambadzi [2011] UKSC 23), the court held that Bostridge would have suffered the same unhappiness and distress had he been detained lawfully. Thus, he was awarded only nominal damages of £1. 

Appeal grounds

Bostridge appealed on three grounds. Firstly, a distinction was posited between situations where a defendant such as a hospital or trust has the power to detain, and where detention is based upon third party opinion, such as a social worker or a doctor. The logic is somewhat obtuse. Why should a trust be considered more ‘culpable’ in the latter situation, rather than the former?

Certainly, Kambadzi clarified that there is no distinction between illegality at the threshold of detention and illegality in the procedure once the threshold is crossed. In that case, the secretary of state (SoS) did not carry out regular reviews of the claimant’s detention, as required by a published policy. The error ‘bore on and was relevant to the decision to detain’, thereby rendering the detention unlawful. The Supreme Court held that it was no defence that the claimant would still have been detained if the policy had been applied but it was relevant to quantum. No figure was discussed, save that the claimant would be entitled ‘at least to nominal damages’.

While, the appellants in Lumba had been entitled to no more than nominal damages ‘as their detention was at all times justifiable’, the House of Lords noted that ‘this cannot be assumed to be so in every case’. Thus, the court could ‘not foreclose entirely the possibility’ that the claimant was due more than nominal compensation.

Lord Hope further emphasised that ‘[t]he public law duty exists for the protection of everyone, from the most undeserving to the most vulnerable’, such as ‘those suffering from physical or mental illness’, who might have particular protections afforded to them by legislation.

Nonetheless, the Court of Appeal in Bostridge dismissed the appellant’s first ground, holding that ‘[t]he identity of the route by which…[unlawful detention] might have been achieved is unlikely to be significant’. This does, however, leave open the argument that the cause of the unlawfulness might in some cases be so.

Bostridge’s second ground of appeal was based on a policy requirement of a substantial damages award following Winterwerp v The Netherlands (1979-80) 2 EHRR 387. The policy argument was not pursued orally since the appellant accepted that if the first ground failed, ‘Wintwerp would not make the difference’.

It is unclear why this was conceded. Furthermore, arguably different compensation considerations apply under the European Convention on Human Rights (ECHR). Both Lumba and Kambadzi solely 

concerned the common law tort of false imprisonment, which is not synonymous with article 5. Bizarrely, the right to compensation enshrined in article 5(5) was not even mentioned. To suggest that policy is more important than a fundamental human right appears to be missing the point.

Winterwerp was, in any event, an odd case upon which to focus, as the applicant did not seek compensation for the violation of his article 5(4) and 6(1) rights, and neither quantum nor policy were discussed. There was no proper development of the second ground of appeal, with the issue of ‘public policy’ dismissed by Lord Justice Vos : ‘In the circumstances of this case, I do not think that there were any policy considerations that required a substantial award of damages.’

The appellant’s third ground was founded on the principle that compensation should reflect not only loss of liberty, but also loss of the procedural and substantive protections afforded by a lawful detention.

Strangely, ‘this point too was not much pressed’ by the appellant’s counsel. Purportedly relying on Lumba and Kambadzi, Vos LJ concluded that ‘both these grounds for a substantial award are ruled out’. Accordingly, Bostridge’s appeal failed on all three grounds.

Habeas corpus

Further analysis of these conclusions is warranted. In Kambadzi, Lady Hale merely observed that ‘[t]he amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done’. Nominal damages are not inevitable, and monetary compensation is not ruled out. Rather, damages may be reduced.

As for Lumba, the claimants were detained pursuant to an unpublished policy by the SoS at the end of their sentences, pending deportation orders. Having applied neither the policy nor the correct principles, she alleged that had she done so, she would have detained the claimants.

Despite criticising the award of £500 arising from a police cell review which was two hours late in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, the then Lord Justice Dyson emphasised in Lumba that where a power ’has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised’. False imprisonment still results, with an absence of loss relevant to quantum. Of the nine judges, three dissented, with half of the majority favouring nominal damages, and the other half positing damages of between £1,000 and £500.

The Court of Appeal in Bostridge also considered Christie and Leachinsky [1947] AC 547 (HL), where the claimants had been falsely imprisoned, even though they could have been lawfully arrested for a different offence. The police were liable for false imprisonment, and clearly more than nominal damages were contemplated, as the Lords did not disturb the appeal court’s decision to remit the case for a jury to assess damages.

In Kuchenmeister v Home Office [1958] 1 QB 496, the claimant was detained in the London immigration hall en route to Dublin and prevented from making his connection, despite there being no power to detain him. Lawfully, however, he could have been prevented from landing in the first place. He received £150 vindicatory damages.

In Kambadzi the Supreme Court held that such damages would be appropriate where ‘officials’ conduct were not so egregious as to attract exemplary or punitive damages’.

Vos LJ held in Bostridge that Kuchenmeister should not be followed, and that Lumba had clarified that vindicatory damages for false imprisonment were inappropriate where a claimant could have been lawfully detained. The Lords held that to make an award to reflect the special nature of a wrong involving a violation of rights was considered too ‘far reaching’ and would create ‘undesirable uncertainty’. Lord Dyson held that ‘where appropriate’, a declaration and compensatory damages would be sufficient to vindicate an infringed right, which could be nominal in a strict liability tort where no substantial loss was proved.

Yet, English courts have frequently insisted that ‘constitutional protection for those…faced with detention under the MHA should be strictly enforced’, and that ‘[t]here is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with’ (R v Derby City Council, ex parte GP [2012] EWHC 1451 (Admin)).

As Lady Hale stated in Lumba, ‘the whole point of procedural requirements… is that the person whose rights are being infringed should have an opportunity of challenging this. So it will rarely be possible to be confident that, had the correct procedure been followed, the outcome would have been the same’.

An application for a writ of habeas corpus based on the error in Bostridge would have been bound to succeed. Accordingly, real loss flowed from the lack of procedural and substantive protections. Her Ladyship continued, ‘no-one can deny that the right to be free from arbitrary imprisonment by the state is of fundamental constitutional importance in this country… It is a right which the law should be able to vindicate in some way, irrespective of whether compensatable harm has been suffered or the conduct of the authorities has been so egregious as to merit exemplary damages’.

Her suggested figure of £500 was intended to ’recognise that the claimant’s fundamental constitutional rights have been breached by the state and to encourage all concerned to avoid anything like it happening again’.

Hope remains

Post-Bostridge, there remains some hope for claimants. It is notable that in the Court of Appeal’s view, Lumba only prevented vindicatory damages in a case ‘of this kind’. Similarly, Lady Hale held in Kambadzi that vindicatory damages were unavailable ‘in these circumstances’. It is unclear what other cases or circumstances might permit the courts to award such damages, and no doubt the courts can expect some future creative arguments.

Further, it may be successfully argued that a claimant has suffered additional distress as a result of a 

technical breach, warranting more than nominal damages. As the Supreme Court held in R (Faulkner) v SSJ and Another;; and R (Sturnham) v Parole Board [2013] UKSC 23, this must ‘depend to some extent upon the circumstances of the individual case. Where for example there is a particular reason for anxiety, or where there is mental illness, even a relatively short delay may occasion acute mental suffering. It is impossible therefore to lay down absolute rules’.

Additionally, an apparently technical breach could in fact be more substantive. For example, a mistake might render restrictions unnecessarily severe. In many cases, a patient may be relatively stable when a procedural error is identified. If discharged immediately upon discovery, there is a strong argument that on an informal admission they would have been discharged days or weeks earlier, and so damages are warranted. Also, compensation which is vindicatory in purpose may be arguable on the particular facts or circumstances of a case.

Crucially, it is the public authority which has the burden of proof to establish that its actions or omissions did not lead to loss, because false imprisonment is actionable without proof of damage (see R (EO and Others) v SSHD [2013] EWHC 1236 (Admin)). Until so established, the claim is sound, and the cost- benefit analysis under a legal aid certificate met.

Some defendants may take a view and make a small settlement offer to avoid the time and cost involved in obtaining the necessary evidence to prove that a procedural breach made no difference to a claimant. However, although the appellant in Bostridge intends to appeal to the Supreme Court, unless and until he is successful, awards for ‘technical’ unlawful detentions are likely to be greatly reduced.

Article written by Laura Davidson.