MK (Algeria) v Secretary of state for the Home department

Damages for false imprisonment must reflect the claimant’s particular circumstances. The court should make a global assessment rather than apply a rigid daily rate. The amount attributable to additional time should ordinarily reduce as detention continues.

Aggravated damages may compensate for humiliation or high-handed, insulting, malicious or oppressive conduct connected with the arrest, detention or litigation. In judicial review proceedings, the decisive procedural requirement is that the defendant receives fair notice of such a claim and a proper opportunity to answer it.

An exaggerated settlement demand does not by itself justify awarding the opposing party its subsequent costs, particularly where the demand did not affect negotiations and the opposing offer was not upheld at trial.

The appellant was detained by the Secretary of State for 24 days after his EEA residence permit had been revoked. His wife remained an EEA national exercising treaty rights. The Secretary of State ultimately conceded that the revocation, removal directions and detention had been unlawful.

A deputy High Court judge awarded £8,500 in compensatory damages, refused to entertain a late claim for aggravated damages and ordered the appellant to pay the Secretary of State’s costs incurred after the concession of liability. The appellant challenged the amount of damages, the refusal of aggravated damages and the costs order.

The central issues were the proper compensation for the unlawful detention, whether the Secretary of State had received fair notice of the aggravated damages claim, and whether the appellant’s settlement position justified the adverse costs order.

1. The appeal was allowed unanimously. The compensatory award was increased from £8,500 to £12,500. A further £5,000 was awarded as aggravated damages, producing total damages of £17,500. The order requiring the appellant to pay the Secretary of State’s costs after 31 March 2009 was quashed and replaced by no order for costs for that period.

2. Damages for false imprisonment are fact-sensitive and must reflect the harm suffered by the particular claimant. The assessment is global rather than mechanistic. Although longer detention increases the gravity of the wrong, the amount attributable to additional time should ordinarily taper because the initial shock generally warrants greater compensation and the overall award must remain proportionate to awards in other fields.

3. The £8,500 award did not adequately reflect the circumstances. The appellant was arrested at home before his family, threatened with removal and separated from his wife and child. The Secretary of State continued the detention and opposed bail despite being told by solicitors that the appellant’s wife was exercising treaty rights. The lawful basis for residence persisted throughout. Home Office guidance was not itself a source of law.

4. This was a clear case for aggravated damages. The Secretary of State had acted in a blinkered and high-handed manner. The uncontentious facts were sufficient to determine the issue without an adjournment or further evidence.

5. Although Civil Procedure Rules 1998 Part 54 did not on its face require aggravated damages to be pleaded in the judicial review claim form, including the claim there would promote clarity. The governing question was whether the defendant had fair notice. The correspondence disclosed the relevant circumstances, and the Secretary of State’s detailed grounds had answered the aggravated damages claim in substantive terms.

6. The adverse costs order was wrong in principle. An exaggerated settlement demand did not justify requiring the successful appellant to pay the Secretary of State’s later costs where it did not affect negotiations and her offer was not maintained at trial. Since the appellant’s counsel had sought no costs after the concession of liability, the proper order for that period was no order as to costs.

• Court of Appeal (Civil Division): The appeal was allowed unanimously. Compensatory damages were increased, aggravated damages were awarded, and the adverse costs order was replaced by no order for costs after 31 March 2009: [2010] EWCA Civ 980.

• Queen’s Bench Division, Administrative Court: Ms Belinda Bucknell QC, sitting as a deputy High Court judge, awarded £8,500 damages, refused to entertain the aggravated and special damages claims, and ordered the appellant to pay the Secretary of State’s costs incurred after 31 March 2009. No citation is stated.