BB & Ors v The Home Office

A private-law claim for damages for unlawful immigration detention is not ordinarily abusive merely because related removal decisions were challenged by judicial review. The Queen’s Bench Division may determine public-law issues arising within a damages action, including whether detention was lawful. The claim is not required to be brought by judicial review where the claimant seeks damages alone, particularly where the judicial-review claim has become academic and the damages claim requires disclosure and cross-examination. Abuse depends on the particular circumstances, including whether the private action is being used for a purpose significantly different from its ordinary and proper use. Overlap of factual issues, or the availability of a public-law remedy at an earlier stage, is insufficient without more.

The claimants appealed against an order of Deputy Master Rose dated 19 August 2010 striking out their claims as an abuse of process under CPR 3.4(2)(b). They sought damages for alleged unlawful detention at Yarlswood Immigration Centre, breaches of article 5 of the ECHR, and related medical and negligence claims.

The first claimant had previously brought judicial-review proceedings concerning removal directions, fresh immigration claims and medical matters. Those proceedings did not claim damages for unlawful detention, and became academic after the removal directions were withdrawn and the family was released. The central issue was whether the subsequent Queen’s Bench damages action was abusive because it should have been brought within, or instead of, the judicial-review proceedings.

1. Appeal allowed. The Deputy Master’s order was set aside and the claimants’ Queen’s Bench action was permitted to proceed.
2. A claim for damages for unlawful detention is a private-law claim which may be brought in the Queen’s Bench Division or County Court. The court determining it may resolve the public-law question whether the detention was lawful. A judicial-review claim is not required where the claimant seeks damages alone.
3. The procedural exclusivity principle in O’Reilly v Mackman [1983] AC had been significantly eroded by the CPR and subsequent developments. The relevant question was whether the judicial-review safeguards had been flouted in circumstances inconsistent with a just determination, not whether the formally correct procedure had been selected.
4. The Court of Appeal’s decision in ID v Home Office [2006] 1 WLR 1003 was particularly applicable. It supported bringing immigration detention damages claims as private actions, especially where the Administrative Court had no jurisdiction to entertain damages alone and the issues required detailed disclosure, expert evidence and cross-examination.
5. The judicial-review proceedings challenged removal directions and immigration decisions. They did not determine the lawfulness of the detention throughout the relevant period, nor claims for damages or inadequate medical treatment. The limited overlap of facts did not make the later action abusive.
6. The children were not parties to the judicial-review proceedings. They were properly treated as interested parties, no litigation friend had been appointed, and the solicitor had not been instructed to represent them.
7. The court applied the abuse-of-process approach in Attorney General v Barker [2000] 1 F.L.R. 759. The defendant had not shown that the damages action was being used for a purpose or in a way significantly different from its ordinary and proper use. The substantial additional evidence and the need for a full trial also militated against strike-out.
8. Case-management directions were made for disclosure, amended pleadings, witness evidence and mediation.

• High Court (Queen’s Bench Division): Appeal from the Deputy Master’s order dated 19 August 2010 allowed. The strike-out order was set aside and the claims were permitted to proceed.