MK (Algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice Smith,Lord Justice Rimer |
| Judgment Date | 29 April 2010 |
| Neutral Citation | [2010] EWCA Civ 980 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2009/1002 |
| Date | 29 April 2010 |
[2010] EWCA Civ 980
Before: Lord Justice Laws
Lady Justice Smith and
Lord Justice Rimer
Case No: C4/2009/1002
IN THE COURT OF APPEAL (CIVIL DIVISION)
(Ms Belinda Bucknall QC)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ms Margaret Phelan (instructed by Polpitiya Solicitors) appeared on behalf of the Appellant.
Mr Sarabjit Singh (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Laws:
This is an appeal with permission granted by Sir Richard Buxton on 25 November 2009 against orders made by Ms Belinda Bucknell QC sitting as a deputy High Court judge in the Queen's Bench Division on 3 April 2009.
The proceedings arise out of the appellant's admitted unlawful detention by the respondent Secretary of State for 24 days from 14 April 2008 to 7 May 2008. The orders complained of are: 1) the judge's award of £8,500 damages, which is said to be low on grounds which I will explain; and 2) her order that the appellant should pay the defendant's costs of the proceedings incurred after 31 March 2009.
The background is as follows. The appellant is a national of Algeria born in 1973. He came to the United Kingdom in 2001 and claimed asylum. That was refused on 13 March 2001. His appeal against that refusal was dismissed on 28 April 2004. On 2 June 2005 he married his wife, who was an EEA national born in Portugal. On 16 December 2005 he was granted a five-year EEA residence card. That was in right of his wife's exercise of her EEA rights. In April 2007 the appellant sent his new Algerian passport to the Secretary of State with a request that it be endorsed with his right of residence. On 3 September 2007 the appellant and his family moved to King's Lynn. On 27 September 2007 the respondent wrote to the appellant at an address on their records, not being the King's Lynn address, seeking evidence that the appellant's wife was exercising her EEA treaty rights. There was no reply. At length on 22 November 2007 the Secretary of State decided to revoke the appellant's residence permit on the asserted basis that the appellant's “EEA family member”, that is of course his wife, was no longer exercising treaty rights in the United Kingdom. However, as was common ground, notice of this decision did not reach the appellant at the time. His passport had still not been returned. The next he knew was that on 10 April 2008 a number of immigration officers (stated to be seven or eight), together with a police officer, arrived at his home at King's Lynn, arrested him in the presence of his wife and child and removed him to a place of detention. It is said that they had his correct address because it was revealed through “enforcement checks” so it must presumably have been on a Home Office file.
On 16 April 2008 the decision of 22 November 2007 and a Reasons for Removal letter was served on the appellant. On the same day, 16 April, the appellant's solicitors wrote asserting that the appellant's wife was working and continued to exercise her treaty rights in the United Kingdom. That was indeed the case. The solicitors asked that removal directions which had been set should be cancelled. On 17 April 2008 the Secretary of State declined to do so unless judicial review proceedings were lodged. The appellant lodged an appeal to the Asylum and Immigration Tribunal against the revocation of his residence card. On 22 April 2008 further removal directions were set for 27 April. On 25 April judicial review proceedings were lodged at the Administrative Court. On 7 May, in the face of opposition from the Secretary of State, an immigration judge granted bail to the appellant, thus bringing to an end his period of detention.
On 12 June 2008 the late Hodge J granted judicial review permission. On 27 June 2008 the appellant's appeal against the revocation of his residence card was allowed. There followed some correspondence between the parties, which is summarised in the appellant's skeleton argument conveniently as follows. On 16 March 2009 the appellant wrote to the respondent inviting settlement and making a Part 36 offer of £50,000. On 24 March 2009 by telephone the respondent or the Treasury Solicitor declined to pay any such sum but offered £2,000. On 25 March 2009 Munby J ordered the Secretary of State to produce the appellant's file of papers in their custody. That had been sought under the Data Protection Act. The appellant refused the counter-offer of £2,000. On 27 March the respondent wrote apologising for a late skeleton argument and making a further offer, this time of £5,000. On 31 March the appellant refused that offer but made a further counter-offer of £28,000 plus £10,000 aggravated damages. The respondent on that date conceded that the appellant's detention had been unlawful, maintained his offer of £5,000 and no more and submitted detailed grounds of defence. Some of the papers kept under the Data Protection Act were provided or served.
So the matter went before the deputy High Court judge a few days later on 3 April 2009. By that stage, as the judge observed at paragraph 4 of her judgment, the Secretary of State had conceded that the decision to revoke the appellant's residence card and the removal directions should be quashed and that there should be a declaration that the appellant's detention had been unlawful. Accordingly, all that in effect remained was a claim for damages and costs.
The unlawfulness of the detention, as the correspondence shows, had been conceded on 31 March 2009. That was in the Secretary of State ‘s detailed grounds of defence. It was done on the basis that the appellant's wife was throughout exercising treaty rights so that there was no proper basis for the withdrawal of the appellant's residence permit. As I indicated at the outset, the judge awarded £8,500 damages for unlawful detention or, as it is perhaps more familiarly known, false imprisonment. The appellant has two complaints about this: 1) it is too low as a figure for standard compensatory damages; and 2) there should have been an element of aggravated damages, which would have of course have increased the figure further. The appellant also complains, as I have foreshadowed, about the deputy judge's order for costs.
I turn to the first of these complaints. There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans [1999] QB 1043; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.
In Thompson the court gave specific guidance (515 D-F) to the effect that in a “straightforward case of wrongful arrest and imprisonment” the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten years ago and, while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation. Mr Singh for the...
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