R (on the application of Jollah) v Secretary of State for the Home Department
This case concerned an award of damages for false imprisonment in the context of immigration detention. The Secretary of State appealed against an award of damages for false imprisonment of a foreign national (IJ) arising out of the imposition of a curfew. IJ cross-appealed against the quantum of damages.
Following his release from prison, IJ was detained in an immigration detention centre. He was granted bail by the First-tier Tribunal and the bail conditions included a requirement that he reside at a specific address. When the bail came to an end, the Secretary of State imposed a curfew between 11pm and 7am every day and IJ was fitted with an electronic tag from 3 February 2014 and 14 July 2016. IJ challenged the lawfulness of the curfew and the Secretary of State accepted that he had no power to impose a curfew. The judge determined that IJ was entitled to damages for false imprisonment quantified at £4,000.
On appeal, the Court of Appeal emphasised that the concept of deprivation of liberty was not identical to the tort of false imprisonment; in fact, whilst recognising that "the underpinning rational is similar in each case", nonetheless, "the approach to be adopted with regard to Article 5.1 claims is significantly different from that to be adopted by domestic courts in dealing with claims in false imprisonment." The court explained at paragraph 30 that:
…in Article 5.1 cases the courts tended to look at the restraint in question in the context of the whole picture: a distinction between deprivation of liberty and restriction on liberty was maintained, involving an assessment of the whole range of factors present including nature, duration and effects of the restraint, and the manner of implementation and execution and so on. Thus, even extensive curfew requirements… might not necessarily involve an infringement of Art 5..."
There could therefore be deprivation of liberty without false imprisonment and vice versa. What had occurred in this case constituted imprisonment for the purposes of the tort of false imprisonment and IJ was right not to have pursued a claim by reference to Article 5(1).
As to the quantum of damages, the Court of Appeal noted that many cases involving an assessment of damages for false imprisonment in an immigration detention context have eschewed the setting of a general tariff and each case was left to be decided by reference to its own facts and circumstances. In this case, the restrictions on IJ's liberty were not complete or total, and there was no finding that the curfew interfered with IJ's chosen lifestyle in some kind of wholesale way. The Court of Appeal concluded that the award of £4,000 was not plainly wrong such that it should be interfered with.
Although this is not a decision heralding from the Court of Protection, it is nonetheless interesting for its discussion of the principles separating unlawful deprivation of liberty for the purposes of Article 5 and the tort of false imprisonment at common law. It is also relevant to the vexed issue of damages.
Although the Court of Appeal resolutely maintained the distinction between false imprisonment and deprivation of liberty, it was interestingly suggested that an argument could be advanced that the concept of imprisonment for the purposes of the tort of false imprisonment could be aligned with the contempt of deprivation of liberty for the purposes of Article 5. However, this argument was not pursued although the Secretary of State reserved his position to argue it elsewhere. For the time being, false imprisonment and deprivation of liberty continue to be treated differently. We note that this means that it is entirely possible, therefore, that a self-funder in a private care home/hospital may well have no recourse against the care home/hospital which does not seek a DOLS. If they do not meet the rather tighter test for false imprisonment, they could not bring a claim for deprivation of liberty under the HRA 1998 against the care home/private hospital. It is not obvious why this gap in protection is justified.
In relation to damages, the Court of Appeal in this case, like many courts previously, declined to lay down any general guidelines for quantum of damages, but rather recounted the mantra that "each case is left to be decided by reference to its own facts and circumstances." Whilst this does provide flexibility for litigants to argue for or negotiate damages relatively unconstrained by prior cases, it does pose difficulties for practitioners attempting to advise on what damages might be awarded by a court if a claimant is successful at trial. The inherent uncertainty in assessing quantum of damages for false imprisonment and unlawful deprivation of liberty claims will likely continue.