Audi Dama Masozera Johnson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Nigel Sweeney |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1260 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-000334 |
[2023] EWHC 1260 (KB)
Sir Nigel Sweeney
(Sitting in Retirement)
Case No: QB-2020-000334
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Dylan Conrad Kreolle Solicitors for the Claimant
Andrew Deakin (instructed by GLD) for the Defendant
Hearing dates: Date of Judgment
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 21 – 23 July 2021 I presided over the liability only trial in this case. Given the Claimant's abandonment of his claims for personal injury, and misfeasance in public office, the ultimate issues for determination were:
(1) Unlawful detention / false imprisonment arising out of the Claimant's immigration detention between 16 February 2014 and 19 June 2015 (a period of some 489 days) in reliance, variously, on DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7 (unlawful deportation order); Hardial Singh 1 (intention to deport), and Hardial Singh 2 & 3 (detention for a reasonable period / sufficient prospect of removal within a reasonable period)
(2) Harassment arising out of the conduct of the attempted removal of the Claimant to Uganda over a two-day period between 9 and 11 December 2014.
The Defendant admitted that, because officials had omitted to carry out what should have been the Claimant's first detention review, his detention in the period from 17 March 2014 to 10 April 2014 had been unlawful. Otherwise, the Defendant contested all the Claimant's allegations.
In my judgment (see [2022] EWHC 3120 (KB)) I noted the admitted period of unlawful detention, but otherwise wholly rejected the Claimant's case – see paras 11 & 12 of the judgment for an index of the matters with which I dealt, and para 227 for my overall conclusion. I required counsel (see para 228) to draft a suggested Order to encompass any necessity for further skeleton arguments in relation to damages and costs (envisaging that those issues would be decided on the papers, rather than at a further hearing).
The resultant Order, which was sealed on 3 February 2023, included the following:
“(1) The Claimant's claim for unlawful detention between 16 February 2014 and 19 June 2015 be dismissed, save for the period 17 March 2014 – 10 April 2014, which the Defendant admits was unlawful.
(2) The Claimant's claim for harassment be dismissed.
(3) The parties are to file and serve skeleton arguments to address the following issues (or such of the following issues that remain in dispute):
a. Whether the Claimant would have been lawfully detained between 17 March 2014 and 10 April 2014 in any event.
b. Whether the Claimant is entitled to substantial or nominal damages.
c. If the Claimant is entitled to substantial damages, the quantum of such damages; and
d. The costs of the determination of those issues.
(4) The skeleton arguments are to be filed and served sequentially……..
(5) After the completion of the filing and serving of the skeleton arguments, the issues will be determined on the papers…….”.
in addition to the trial materials, I have been provided with the following documentation:
(1) Written Submissions on Cost on behalf of the Claimant (21 pages) dated 14 January 2023.
(2) An accompanying bundle, filed by the Claimant, containing:
(i) Statements of Costs (pages 1–16).
(ii). Background documents (pages 17–256).
(3) Claimant's Skeleton Argument as ordered by the sealed Order (1 page) dated 6 February 2023.
(4) Secretary of State's submissions on remedy and costs (9 pages) dated 10 March 2023.
There is no dispute that it is appropriate for me to consider and rule upon both damages and costs without the expense of a further hearing.
The Claimant's position is, in summary, that he criticises the Defendant's conduct of the case in a number of respects and:
(1) Seeks his costs of:
(i) The Defendant's application for a witness summons dated 19 July 2021 (in relation to Mr Duncan Pearce) in the sum of £1,020.
(ii) His own application for specific disclosure sealed on 29 June 2021 (£17,999).
(iii) His own application for a witness summons (in relation to Mr Duncan Pearce) 29 June 2021 (£2,238.00).
(iv) His own cost of the case (approved budget) in the sum of £154,280.00.
(2) Makes no submission in relation to whether, in any event, he would have been lawfully detained between 17 March 2014 and 10 April 2014; whether, in the result, he is entitled to substantial or nominal damages; and, if entitled to substantial damages, the quantum of such damages – taking the position that he leaves those issues in my hands, and arguing that, therefore, there is no need to incur any additional cost to determine those matters.
Whilst accepting some of the criticisms made by the Claimant, the Defendant's position is, in summary, that:
(1) Save for an admission by the Defendant that officials had failed to carry out the Claimant's first detention review, such that he had had been unlawfully detained between 17 March 2014 and 10 April 2014, the Court had comprehensively rejected the Claimant's case and had found for the Defendant on all the grounds of claim that had been pursued to trial and thus, there being no reason to depart from the general principle that costs will follow the event, and in the ordinary way, the Defendant should be awarded reasonable costs – to be subject to detailed assessment, if not agreed.
(2) In so far as the Defendant's conduct can be criticised that should, at most, be reflected in a limited percentage reduction of the costs awarded in his favour.
(3) In any event, the Court should order that the payment of a Costs Order made against the Defendant by Ellenbogen J on 25 May 2021 should be set off against the Court's general award of costs in favour of the Defendant.
(4) Against the background of the Court's conclusion that the Claimant's detention in the periods immediately before and after the period from 17 March 2014 to 10 April 2014 was lawful, the Court can be satisfied that the Claimant would have been lawfully detained if the mandatory review had taken place, and that therefore the Claimant is entitled to no more than nominal damages for that period, and the Defendant is entitled to his costs of the submissions in regard to it.
Outline History
Both sides seek to rely on aspects of the history of the case, which I outline below.
The Claimant's Letter Before Claim, which was served on 27 January 2020, along with a Part 36 offer for settlement, indicated that the issues included whether his detention under the Immigration Act from 14 February 2014 until his release on 19 June 2015 (494 days) was unlawful, false imprisonment, and /or a breach of Article(s) 5 & 8 ECHR, which entitled to him to damages under the tort of false imprisonment. His claim, it was asserted, gave rise to the following non-exhaustive causes of action – false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, misfeasance in public office, negligence, and breaches of Articles 5 & 8 ECHR. It was further asserted that, in December 2014, the Claimant had been subjected to an unlawful “ botched forced removal” to Uganda, during the course of which he had been physically assaulted – being “ tortured to the brink of suicide….assaulted whilst in restraints and as a direct result had one of his front teeth knocked out…”, and that whilst at Entebbe Airport had been “ denied food and water for an extended period of around 10 hours”. It was also asserted that the Claimant had been subjected to unlawful discrimination on grounds of his race, as well as harassment, cruelty, and bad faith. It was further indicated that the Claimant sought general, special, aggravated, and exemplary damages. The letter also identified various categories of documents, including the systems log (GCID notes) in relation to the Claimant, the Claimant's medical records in prison, and correspondence between the Defendant and the Ugandan High Commission, sought disclosure of them, and continued: “….. We should like to see if it is possible to resolve, or at least narrow, any issues by ADR. We consider the appropriate means of ADR to be negotiation, though please let us know if you contend any other method to be suitable. Accordingly, we hope that you will comply with your obligations under the pre-action protocol and act on our invitation to negotiate within this framework. Should you decline to do so we do reserve the right to refer to this, and further relevant correspondence, when seeking any orders that may be necessary from the Court, on case management and also in connection with the costs of any specific application and, indeed, the matter generally”
The Claimant issued proceedings on 29 January 2020. In the Claim Form (which was served on 5 March 2020) he claimed in respect of:
“…[the] tort of false imprisonment for (494) days without lawful authority, trespass to the person, conspiracy to injure / conspiracy to use unlawful means, discrimination based on the assumed Ugandan race, misfeasance in public office for his unlawful detention and attempted forced deportation on 09 December 2014 to Uganda before returning him to the UK on 11 December 2014 upon his rejection by the Ugandan authorities as not their citizen”. Damages “ not exceeding £750,000 but not less than £150,000” were sought.
The Defendant did not negotiate and, on 17 March 2020, indicated (in the Acknowledgement of Service) that it was intended to defend all of the claim.
On 28 April 2020 the Defendant served an application to strike out the claim. That application was...
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