MB v Secretary of State for the Home Department

An appellate court decides the issues actually before the lower court, as shaped by the pleadings and submissions. A claim for damages for wrongful detention requires a sufficiently clear allegation of when the detention became unlawful. Where the claimant seeks release and argues only that detention was unlawful by the hearing date, the judge need not determine an earlier date. Discussion of possible dates during argument does not itself make an earlier damages claim an issue. Skeleton arguments should identify the relief sought and the factual basis relied upon.

The appellant, an Iraqi national subject to a deportation order, had been detained under the Immigration Act pending removal. After approximately twenty-three months, Mitting J held that the continued detention had become unlawful and ordered his release on bail, without deciding when unlawfulness began.

The Secretary of State obtained permission to appeal but did not pursue an appeal. The appellant then sought permission to appeal so as to obtain a declaration that his detention had been unlawful from 19 April 2006 and damages for wrongful detention. The central issue was whether Mitting J had failed to determine part of the claim.

1. Disposition. The application for permission to appeal was refused.
2. The claim form referred to judicial review of the decision to detain and continuing detention and included a claim for damages. However, the particulars of claim contained no reference to damages and identified no date from which detention was alleged to have become unlawful. The rational reading of the pleaded case was that it sought release on the basis that detention was unlawful, rather than damages for detention unlawful from a specified earlier date.
3. A party’s skeleton argument should deal fully with the issues before the court. It should identify the relief sought and the facts said to justify it in a manner that makes the case clear. The appellant’s written submissions argued that detention had become unlawful by the date of the hearing, but identified no earlier date and gave no indication that damages were being pursued.
4. The judge’s function was to decide the issues actually before him. Issues may develop between the claim form and the hearing. To order release, it was sufficient for the judge to decide that detention had become unlawful by the date of the hearing. The precise earlier date was irrelevant to the relief then sought.
5. The fact that counsel had canvassed various dates during argument did not convert those dates into a substantive claim for damages. The judge had explained that he had not decided when detention became unlawful, and no objection had then been made that he had failed to determine an essential issue. There was therefore no realistic prospect of establishing an error in the judgment.

• Court of Appeal (Civil Division) — On an application for permission to appeal, refused permission: [2008] EWCA Civ 454.
• High Court, Queen’s Bench Division — Mitting J quashed the Secretary of State’s decision to continue detention and ordered the appellant’s release on bail. No citation for that decision was stated in the judgment.