R Ameth Diop v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 13 December 2018 |
| Neutral Citation | [2018] EWHC 3420 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5657/2017 |
| Date | 13 December 2018 |
[2018] EWHC 3420 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/5657/2017
Anthony Vaughan (instructed by Leigh Day) for the Claimant
Eric Metcalfe (instructed by Government Legal Department) for the Defendant
Hearing date: November 21st 2018
Approved Judgment
John Howell QC:
The Claimant, Mr Ameth Diop, was detained unlawfully by the Defendant between November 10th 2017 and December 7th 2017 and is entitled to damages in respect of his false imprisonment between those dates. So Mr David Pittaway QC, sitting as a Deputy High Court Judge, has declared: see R (Diop) v Secretary of State for the Home Department [2018] EWHC 1934 (Admin). The issue now is: what is the amount of compensation to which the Claimant is entitled?
WHAT THE CLAIM FOR DAMAGES IS FOR
Unfortunately the parties have been unable to agree the amount of any damages to which the Claimant may be entitled. Moreover, when the hearing to determine that amount began, there was no properly formulated statement of the claim for damages in the Claimant's grounds and, therefore, there was no response in the Defendant's detailed grounds for opposing the claim. That was because, in the original grounds on which his claim was made, the Claimant had merely claimed damages, reserving the right to particularise the claim, including claims for aggravated and exemplary damages, after disclosure, and because the order giving directions for this hearing (which was sealed on September 21st 2018) made no provision for any such pleadings. On October 31st 2018 the Claimant made an application to amend his grounds to deal with a different point but incidentally included a proposed amendment to state simply that the Claimant sought an award of damages including aggravated damages. However the Claimant's case in respect of “basic” and aggravated damages had been set out in a skeleton argument dated October 24th 2018 and the Defendant's response to that was contained in a skeleton argument filed on his behalf dated November 1st 2018. In those circumstances the parties were content to proceed with the hearing on the basis of those documents. Mr Eric Metcalfe, who appeared on behalf of the Defendant, did not indicate that, had an application been made before the hearing to amend the grounds to set out a properly formulated claim in respect of basic and aggravated damages as reflected in the Claimant's skeleton argument, the Defendant would have wished to adduce any further evidence than he already had or that the Defendant had been prejudiced by this procedure in any way in respect of those claims. I nonetheless directed the Claimant to file and serve a properly formulated proposed claim for damages reflecting his skeleton argument and the Defendant to file and serve his response to that document.
In the event, after the hearing had been completed, however, a proposed amended statement of grounds was submitted seeking not only “basic” and aggravated damages but also exemplary damages, a claim for which had been expressly disclaimed in the Claimant's skeleton argument, in the sum of £10,000. Permission was also sought to withdraw that disclaimer. I refuse permission for this belated attempt to raise a wholly new head of the claim for damages after the hearing had been completed. There is no justification provided for the delay in advancing this claim for exemplary damages and certainly none that in these circumstances would justify a further hearing, which I would have directed in order to determine the claim, in which submissions could be made on whether the criteria for an award of exemplary damages in respect of the Claimant's unlawful detention had been shown to be met and, if so, the amount of any award. As pleaded, for example, the claim would raise the question whether, rather than merely setting out a claim for exemplary damages in respect of the Claimant's unlawful detention, what was alleged amounted in fact to a claim for exemplary damages for misconduct in public office, that is to say knowingly operating an unlawful system of bail accommodation for “high risk” detainees knowing that its unlawful operation would be likely to harm such individuals, an alleged tort which has never been raised by the Claimant or addressed by the Defendant. The proposed amendments to the grounds on which the claim for aggravated damages is made also go beyond that made in the Claimant's skeleton argument in a number of potentially significant respects. That is also not something that I am prepared to permit in the circumstances.
For those reasons the Claimant will have permission to amend his grounds to reflect the claims made in the skeleton argument but not otherwise. Accordingly I grant permission to the Claimant to amend his grounds to add the proposed amended paragraph 14.5 (minus the words “and exemplary damages”); the proposed paragraphs 90 to 95; the subsequent particular (i), (ii) (but only insofar as it relates to the response on March 22nd 2017), (iii), (v), (vi), (ix) (but only insofar as it relates to the Claimant's case), and (xi); proposed paragraph 97; and proposed paragraphs 101.1 and 101.2. Permission is refused to amend the grounds to include the proposed paragraph 96; particular (ii) (insofar as it relates to the response on November 13th 2017), (iv), (vii), (viii) and (x); and proposed paragraph 101.3. The Defendant has permission to amend his grounds as proposed in response accordingly.
INTRODUCTION
The Claimant is a foreign national offender who was lawfully detained by the Defendant under immigration act powers on the completion of the custodial part of his sentence of imprisonment on September 5th 2016. On November 10th 2017 the First Tier Tribunal (“ FTT”) granted him bail in principle, requiring the Defendant to provide him with initial accommodation within 14 days. Mr David Pittaway QC (“ the Judge”) found, however, that, had the Defendant acted lawfully, he should have secured bail accommodation for the Claimant by that date and that there was then no prospect of the Defendant deporting the Claimant within a reasonable period. He accordingly found that the Claimant's detention from November 10th 2017 until his eventual release from detention on December 7th 2017 was unlawful.
On behalf of the Claimant Mr Anthony Vaughan contended that the Claimant should be awarded £21,000, comprising £16,000 by way of basic damages and £5,000 by way of aggravated damages, plus interest at a rate of 8% from December 7th 2017. On behalf of the Defendant Mr Metcalfe contended that the Claimant is only entitled to basic damages of £2,800, and certainly to no more than £3,920, and that he is not entitled to any award of aggravated damages. He took no issue with the provision for interest claimed.
BACKGROUND
i. the Claimant's immigration history and his conduct in this country
The Claimant is a national of Senegal. He is now 29. He first arrived in the UK on December 8th 2010, with entry clearance, as the dependent of his British spouse, Ms Summerhill, whom he had met in Spain when she was on holiday. That leave eventually expired on June 1st 2012. By then Ms Summerhill had given birth to their daughter on May 20th 2010. On December 18th 2012 the claimant applied for an EEA residence card on the basis of his relationship with Ms Summerhill. That was refused on June 6th 2013. On September 3rd 2013 Ms Summerhill gave birth to their son. The Claimant's appeal against that decision was dismissed by the FTT on December 20th 2013. He was subsequently granted permission to appeal by the Upper Tribunal but his appeal was dismissed on March 10th 2016 and his appeal rights were exhausted on March 23rd 2016. By then the Claimant's relationship with his wife had broken down and he had been convicted of eight serious and violent criminal offences, all relating to domestic violence. Two of those assaults had been in the presence of children.
On August 30th 2013 the Claimant was convicted in Scotland of assault with a domestic abuse aggravator and admonished. On November 20th 2013 he was convicted of assault and vandalism and sentenced to two months imprisonment. His victim was Ms Summerhill's mother. On October 14th 2014 the Claimant's two children were placed on the child protection register following concerns about the Claimant's domestic physical abuse of women other than Ms Summerhill. On March 4th 2015 the Claimant was again convicted of assault with a domestic abuse aggravator and sentenced to six months imprisonment. His victim was Ms Summerhill. His children were removed from the child protection register on July 8th 2015, however, as the Claimant was then in prison. On November 10th 2015 the Claimant was convicted of hamesucken in March 2015, assaulting a person in their own house, when subject to bail and, having pleaded not guilty, he was sentenced to 22 months and 16 days imprisonment (after deducting the time he had spent in custody) from October 30th 2015. His victim was a former partner and the assault was carried out in front of her daughter.
His violent conduct continued while he was in prison: the Claimant was placed in segregation for extended periods because of his violence towards other inmates.
Before the custodial part of his sentence expired, the Claimant was served with the Defendant's decision to deport him under section 32(5) of the UK Borders Act 2007. He submitted representations against deportation on the basis of Article 8 of the European Convention on Human Rights given the relationship that he claimed that he had with his two children. These were refused, the...
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