Negligent False Imprisonment – Scope for Re‐emergence?

Publication Date01 Jul 1998
AuthorUlele Burnham
One can only agree that further litigation is required since there appears to be no
other means to clarify these uncertainties. As the Court said, Article 7(e) raises
difficulties of interpretation and these difficulties were not resolved in the abstract
context of Infringement Proceedings. The future appears confused: on the one hand
the Commission produced an extraordinarily low key Report on the Directive14
suggesting for the most part that all was well, the Directive (and indeed the
defence) have produced very little litigation and almost no authority and most
Member States have incorporated the defence. On the other hand France15 appears
likely to omit the defence and thus follow Finland and Luxembourg and (in
relation to certain sectors) Spain and there are advanced proposals to abolish the
exemption from liability for primary agricultural products and game.16
The radical (and logical, if the preceding arguments are accepted) solution to
redress the failure of the Directive to achieve the simplification which was a major
part of its purpose would be to remove the development risk defence as well.
Negligent False Imprisonment – Scope for
Ulele Burnham*
In WvThe Home Office,1concerning the prolonged detention of a Liberian
asylum-seeker as a result of the carelessness of the Immigration Service, the Court
of Appeal held that there was no duty of care in negligence on the part of the
Immigration Service to avoid carelessly continued detention.
The plaintiff in Wwas detained in the custody of the Home Office pending his
examination under Schedule 2 of the Immigration Act 1971 (‘The Act’) with a
view to admission to the United Kingdom. The decision as to whether he should be
held in custody or granted ‘temporary admission’ pursuant to Schedule 2 paragraph
21 of the Act was dependent upon the authorities being satisfied that he was a
genuine Liberian national. Liberian nationality could be established by the
successful completion of a ‘Liberian’ questionnaire provided by the Immigration
Officer. The plaintiff was never in fact asked to complete the requisite
questionnaire until 11 April 1994 but was denied temporary admission until that
date on the basis of the Immigration Service’s erroneous belief that the plaintiff
had performed poorly on the questionnaire. This belief was in fact the result of the
Immigration Service’s careless placement of someone else’s unsatisfactorily
completed questionnaire on the plaintiff’s file. It was the plaintiff’s case that the
carelessness of the Immigration Service was causative of his prolonged detention.
14 First Report on Council Directive On the Approximation of Laws, Regulations and Administrative
Provisions of the Member States Concerning Liability for Defective Products, COM (95) 617 final, 13
December 1995.
15 The only Member State still to implement the Directive.
16 COM (97) 478 final, 1 December 1997.
* Cloisters, Chambers of Laura Cox QC.
1The Times, 14 March 1997.
July 1998] WvThe Home Office
The Modern Law Review Limited 1998 573

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