Lee Bostridge (Claimant/Appellant) v Oxleas NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice Christopher Clarke,Sir Terence Etherton |
| Judgment Date | 10 February 2015 |
| Neutral Citation | [2015] EWCA Civ 79 |
| Docket Number | Case No: B2/2014/0611,2/2014/0611 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2015 |
[2015] EWCA Civ 79
THE CHANCELLOR
Lord Justice Christopher Clarke
and
Lord Justice Vos
Case No: B2/2014/0611
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE HAND QC
Case Number: 1UD76887
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC and Mr Denis Edwards (instructed by Campbell-Taylor Solicitors) for the Claimant/Appellant
Mr Philip Havers QC (instructed by Clyde & Co LLP) for the Defendant/Respondent
Hearing date: 29 th January 2015
Introduction
The single issue in this appeal is whether the appellant, a mentally disordered patient unlawfully detained in hospital for some 442 days, is entitled to substantial damages instead of the nominal damages awarded by the judge, in circumstances where he would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness.
The short point made by the appellant is as to the effect of the two Supreme Court cases on which HHJ Hand QC relied ( Lumba v. Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245 ( Lumba), and Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299 ( Kambadzi)). The appellant contends that in those cases the Secretary of State always had power to detain the claimants in question, and that she would have exercised that power anyway had the unlawfulness come to light. In contrast in this case, the NHS trust did not have such a power at all; the NHS trust was dependent on lawful compliance with sections 3 and 11 of the Mental Health Act 1983 (the "MHA"), which required actions by third parties, namely by two medical practitioners and by either the nearest relative of the patient or by an approved mental health professional. Accordingly, the Supreme Court's determination that, where the Secretary of State would herself have detained the claimants in any case, those claimants are entitled only to nominal damages for the unlawful detention, cannot be read across to the situation in this case.
The respondent, Oxleas NHS Foundation Trust (the "NHS trust"), contends that it does not matter that it did not itself have the power to detain the appellant. The only question that was relevant to the issue of quantum of damages (as opposed to liability which was admitted) was whether the appellant would in fact have been lawfully detained by some other means in any event.
The agreed facts
The judge recorded the agreed facts at paragraphs 3–14 of his judgment. I can summarise them briefly as follows:-
i) On 16 th July 2008, the appellant, who suffers from schizophrenia, was detained in the NHS trust's hospital under section 3 of the MHA.
ii) On 2 nd April 2009, the First-tier Tribunal (Mental Health) (the "FTT") reviewed the appellant's case and ordered his discharge, but postponed that discharge until 15 th April 2009 in order that a Community Treatment Order ("CTO") could be put in place. A CTO was put in place but was technically flawed, because section 17A(2) of the 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. When the appellant was released on the 15 th April 2009, he was no longer a detained patient, so that the CTO was unlawful and invalid.
iii) On 19 th August 2009, the NHS trust, acting by a responsible clinician, purported to recall the appellant to hospital under section 17E(6) of the MHA in reliance on the CTO, and thereafter detained him in hospital. Detention of the appellant for the 422 days between 19 th August 2009 and 3 rd November 2010 (when he was discharged) was, therefore, unlawful. The NHS Trust accepted liability for the tort of unlawful imprisonment and/or for acting unlawfully under section 6 of the Human Rights Act 1998.
iv) The FTT reviewed the appellant's case twice during his detention on 21 st January 2010 and 26 th May 2010, deciding on both occasions that his condition required continued detention.
v) Neither the appellant nor anyone responsible for his mental health care was aware that the appellant's detention was unlawful until 3 rd November 2010. The appellant's independent psychiatric expert reported on 10 th October 2013 that the appellant's readmission under section 3 of the MHA would have been indicated throughout the period of unlawful detention on the basis of his mental state, known vulnerability and the fact that he was refusing medication.
vi) Had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway.
vii) On 3 rd November 2010, the unlawfulness of the appellant's detention came to light at a scheduled FTT hearing. He was released that same day and then lawfully readmitted and detained under section 3 of the MHA until discharged on 13 th September 2011; he was detained again on 18 th April 2013.
The judge's decision
The judge decided that Lumba and Kambadzi established 3 principles as follows:-
i) The tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully;
ii) There is no principle in the law of England and Wales of "vindicatory" damages; and
iii) Where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal.
The judge held that there was no basis in paragraphs 69–71 of Baroness Hale's speech in Kambadzi for a distinction between illegality at the threshold and illegality in the procedure once the threshold was crossed. In that case, such a distinction was rejected and it was established that every kind of illegality leads to a conclusion of false imprisonment.
The judge held that there was no basis, after Lumba (by which he was bound), for an argument that, irrespective of loss, the infringement of personal liberty amounting to the tort of false imprisonment must be marked by an award greater than nominal damages (see Lord Dyson at paragraphs 90–101, Lord Collins at paragraphs 222–7, Lord Phillips at paragraph 335, Lord Brown at paragraph 361, and Lord Kerr at paragraph 256). The cases where significant sums have been awarded were explained on the basis that the claimants there suffered a loss. Here it was accepted that there was no loss. The judge said that the appellant "would have been detained had his illness been correctly addressed via section 3 [of the MHA], as it should have been on 19 August 2009". He would then have received precisely the same treatment and been discharged in September 2011. In the circumstances, the appellant was entitled only to nominal damages.
The issues raised by the grounds of appeal
The appellant raised the following three issues, for which permission was given by Kitchin LJ at an oral hearing on 4 th July 2014:-
i) Whether the judge was wrong to hold on the basis of Lumba and Kambadzi that the appellant was only entitled to nominal damages when he was detained by the NHS trust without any statutory authority or jurisdiction;
ii) Whether, for policy reasons, an award of substantial damages was required on the basis of the decision of the European Court of Human Rights in Wintwerp v. The Netherlands (1979–80) 2 E.H.R.R. 387; and
iii) Whether, even if the fact that the appellant would anyway have been detained was relevant to the appropriate quantum of damages, those damages ought to have been more than nominal to reflect both his loss of liberty and loss of the procedural and substantive protections afforded by a lawful detention.
In oral argument, Mr Richard Drabble QC, leading counsel for the appellant refined the first and central issue. He contended that the prior cases of Christie v. Leachinsky [1946] KB 124 (CA) [1947] AC 547 (HL) ( Christie) and Kuchenmeister v. Home Office [1958] 1 QB 496 ( Kuchenmeister), when read together with Lumba and Kambadzi, mandated the result that nominal damages were only appropriate when the defendant itself (as opposed to some third party) could and would anyway have detained the claimant under a lawful power had the illegality come to light.
It is, I think, useful to look first at the 4 cases upon which Mr Drabble places central reliance before returning to the issues I have mentioned.
In Christie, the claimants were arrested by police officers on a charge of unlawful possession under the Liverpool Corporation Act 1921, which in the circumstances gave no power of arrest without a warrant. It was common ground that the officers could lawfully have arrested the claimants for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting. The Court of Appeal and the House of Lords held that the officers were liable for the tort of false imprisonment, even though they could quite lawfully have arrested the claimants had they told them they were doing so on the grounds of the suspected felony. There was no discussion in either the Court of Appeal or the House of Lords of the question of what damages should be awarded for the tort of false imprisonment. Instead, the judgments concentrated on the issue of whether or not the officers were liable for the tort at all. The Court of Appeal remitted the case for a jury to assess the damages.
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