The Court of Appeal has today – 10 February – dismissed the appeal in the case of Bostridge v Oxleas NHS Foundation Trust, confirming ( EWCA Civ 79) that the principles set down in the immigration detention context in Lumba v Secretary of State for the Home Department  UKSC 12 (Lumba) and Kambadzi v Secretary of State for the Home Department  UKSC 23 (Kambadzi ) also apply to claims for false imprisonment/breach of Article 5 ECHR brought in the context of the MHA 1983.
The facts of Mr Bostridge’s case are, insofar as relevant for present purposes, these. He was discharged from detention by the FTT (Mental Health) in April 2009, his discharge being deferred so a Community Treatment Order could be put in place. However, for technical reasons that need not detain us here, what was then purported to be put in place as CTO was not, in fact, a CTO such that, when his condition deteriorated in August 2009 and he was recalled to hospital and detained thereafter (with six days of leave) until November 2010, his detention was at all stages – and was admitted by the Defendant Trust – to be unlawful. The Defendant admitted that the period of 442 days amounted to false imprisonment and/or unlawful deprivation of liberty for purposes of Article 5 ECHR. His case was reviewed twice by a Tribunal during his detention (with no one realising the fact that the detention was unlawful), on both occasions the Tribunal finding that his condition warranted continued detention. The Claimant never realised that his detention was unlawful, nor did anyone involved in his care. A jointly instructed psychiatrist who reported in the subsequent claim brought on his behalf after it was realised that he had been unlawfully detained indicated that his re-admission to hospital in August 2009 was necessary as at that point, that there was no evidence that he had suffered damage during the period of unlawful detention due to his being unlawfully detained, and that he would have suffered the same unhappiness and distress had been lawfully detained.
It was therefore common ground that the Claimant had suffered no actual loss, because he would have been detained had his illness been correctly addressed via s.3 MHA 1983, as it should have been on 19 August 2009, and thereafter he would have received precisely the same treatment and he would have been discharged in September 2011.
Against that backdrop of agreed facts, HHJ Hand QC at first instance had to assess the quantum of damages that fell to be awarded the Claimant for both false imprisonment and unlawful deprivation of liberty. In concluding that the Claimant was not entitled to any more than nominal damages, HHJ Hand QC relied heavily on the cases of Lumba and Kambadzi (discussed in more detail in my article, co-written with Catherine Dobson, “At what price liberty? The Supreme Court decision in Lumba and compensation for false imprisonment”  Public Law 628).
The Claimant appealed. Before the Court of Appeal, the main ground of the appeal was that Lumba and Kambadzic could be distinguished because, 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, whereas, in the instant case, the NHS trust did not have such a power at all; the NHS Trust was dependent on lawful compliance with ss.3 and 11 MHA 1983, 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. It was also argued on Mr Bostridge’s behalf that the prior cases of Christie v. Leachinsky  KB 124 (CA)  AC 547 (HL) (Christie) and Kuchenmeister v Home Office  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.
The Court of Appeal disagreed. Giving the sole reasoned judgment, Vos LJ held
“20… [t]he tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed. Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages. The identity of the route by which this same result might have been achieved is unlikely to be significant”
23. As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed. To do that, the court must ask what would have happened in fact if the tort had not been committed. In each of Lumba and Kambadzi, the answer was obvious. Had the torts of false imprisonment not been committed, the Secretary of State would have applied the published policy or undertaken the appropriate custody reviews. In both cases, the claimants would still have been detained. They sustained no compensatable loss. The majority of the Supreme Court determined, in addition, that vindicatory damages were not available in these circumstances (see paragraph 74 of Baroness Hale in Kambadzi).”
Vos LJ held that none of the authorities relied upon by Mr Bostridge compelled the conclusion argued for (and that, to the extent that Kuchenmeister suggested that vindicatory damages were appropriate in a case of false imprisonment even where the claimant could have been lawfully detained or anyway impeded in his journey, that first instance authority should no longer be followed as inconsistent with Lumba.
Vos LJ therefore held that the judge was right to decide on the basis of Lumba and Kambadzi that the appellant was only entitled to nominal damages and, now that the law has been clarified by these cases, neither Christie nor Kuchenmeister pointed to any different conclusion.
Perhaps a little surprisingly, Leading Counsel for Mr Bostridge placed little reliance upon Article 5 and the right to compensation enshrined in Article 5(5). Both Lumba and Kambadzi were cases solely concerned with the common law tort of false imprisonment, and it might perhaps have been expected that arguments might have been addressed as to the fact that the tort is not entirely co-existent with Article 5.
A tentative argument was advanced that, on the basis of Winterwerp (confusingly called Wintwerp in the judgment), there was a ‘policy’ reason for the award of substantial damages in cases such as Mr Bostridge. However, whilst Vos LJ accepted that it was “not in doubt that a breach of either substantive or procedural rules will lead to a finding of false imprisonment. In my judgment, however, the ECtHR’s decision says nothing about the appropriateness of the compensation to be awarded once that finding is made. In the circumstances of this case, I do not think that there were any policy considerations that required a substantial award of damages.”
It was also argued – again somewhat tentatively – that damages should have been more than nominal to reflect both the appellant’s loss of liberty and the loss of the procedural and substantive protections afforded by a lawful detention. However, as Vos LJ noted:
“30. This point too was not much pressed by Mr Drabble. Indeed, it was also not suggested with any force that the judge ought to have made a greater than nominal award under section 6 of the Human Rights Act 1998 by way of ‘just satisfaction’ for a breach of article 5 of the Convention. In my judgment, once it is clear that the appellant sustained no loss, because he would in fact have been lawfully detained anyway whether or not the breach had occurred, it is hard to see how an award of anything more than nominal damages could be justified, whether as compensatory damages or as a just satisfaction. For this reason, I do not think that the damages ought to have been more than nominal either to reflect the loss of liberty or the loss of the procedural and substantive protections afforded by a lawful detention. Both these grounds for a substantial award are ruled out, as Baroness Hale acknowledged at paragraph 74 in Kambadzi, by the inappropriateness after Lumba of vindicatory damages in this kind of case.”
This decision will, I suspect, be greeted with considerable relief by public authorities, and in particular those concerned with potential liability for claims for unlawful deprivation of liberty in post-Cheshire West cases. Although concerned with damages in relation to unlawful detention under the MHA 1983, the confirmation that the principles set down in Lumba and Kambadzi apply not only outside the immigration detention setting and also in relation to claims relying upon Article 5 ECHR, very strongly suggest that the same approach will be adopted wherever it is clear that an individual has suffered no loss as a result of an unlawful deprivation of liberty. That will apply to very many of those who have been subjected to what is – in shorthand but inaccurately – known as ‘technical’ deprivation of liberty – i.e. where there is no question but that the deprivation has fulfilled at all stages all the substantive criteria for detention under Article 5(1)(e) ECHR and would have fulfilled the procedural criteria if (for instance) the supervisory body been able to complete the assessment procedure more speedily.
There will undoubtedly still be room for claims to be brought where it can be shown that the claimant has, in fact, suffered loss. This will most obviously be where it can be shown that, had the public body taken the steps mandated of it by the MCA at an earlier stage, a less restrictive option would have been identified, and they would, for instance, have been returned home.
It is also important, perhaps, to highlight that the burden of proof does not lie with the claimant to establish that the actions/omissions of the public authority led to loss, at least if the claim is framed both in terms of false imprisonment and unlawful detention contrary to Article 5 ECHR. Once it has been established that imprisonment was false as a result of the actions/omissions of the public body, it then lies with the public authority to establish that they made no difference. Otherwise, “the result would be to transform the tort of false imprisonment from being one actionable without proof of damage into one in which the claimant, in a large number of cases, would have to prove loss. [such an approach is] incompatible with the approach of the Supreme Court in Lumba. If the [public body] wishes to say that a claimant would have been detained anyway, [they] must establish that proposition” R(EO & Ors) v SSHD  EWHC 1236 (Admin) per Burnett J at paragraph 74. I would suggest that the same principles also hold true in relation to claims brought in relation to Article 5 given the requirement in Article 5(5) that everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation (even if compensation may not amount to more than a declaration as to the breach).