AXD v The Home Office (No 2)

Damages for unlawful immigration detention must be assessed globally and sensitively to the claimant’s actual harm. The court should avoid a mechanistic daily rate, while recognising that compensation generally tapers as detention continues and that the initial shock of detention may justify a higher rate. Prior lawful detention may reduce the award where it means that no initial shock or disruption of ordinary community life is attributable to the unlawful period.

Aggravated damages may reflect unacceptable decision-making, inadequate treatment, an improper release plan and failures of candour. Exemplary damages require oppressive, arbitrary or unconstitutional conduct of an outrageous character; serious maladministration and an absence of apology do not necessarily cross that threshold.

The claimant brought a claim in false imprisonment against the Home Office arising from his immigration detention. In an earlier liability judgment, the court held the defendant liable for unlawful detention during a period beginning on 1 April 2013, subject to alternative dates arising from the application of the Hardial Singh principles.

This hearing concerned the assessment of basic or compensatory damages, aggravated damages and exemplary damages, together with interest, permission to appeal and costs. The central issues were the appropriate valuation of a lengthy period of unlawful detention, the significance of prior lawful detention and the circumstances of the claimant’s release.

1. Basic damages. The assessment had to be fact-sensitive and global. The authorities did not establish a reliable tariff or framework, and the court declined to apply a fixed daily rate. The rate generally reduces as detention continues, because the initial shock of detention attracts greater compensation than its continuation. The claimant’s prior lawful detention meant that he was not compensated for an initial shock attributable to the unlawful period.
2. The court considered the claimant’s prolonged confinement, the differing regimes at the two institutions, difficulties connected with his sexual orientation, mental illness, substance abuse and anti-social behaviour. His refugee status and diagnosis of schizophrenia were not, without more, relevant to the basic award. Fear of return to Somalia modestly enhanced it. The basic award was £80,000, alternatively £62,000 or £58,000 on the shorter liability periods.
3. Aggravated damages. The detention was aggravated by unacceptable drift and reactivity in decision-making, sub-optimal psychiatric treatment, release without a proper welfare plan and failure to disclose relevant information about returns to Mogadishu. Other alleged features, including the failure to call witnesses and the absence of an apology, did not justify additional aggravated damages. The award was £25,000, alternatively £15,000 or £13,500.
4. Exemplary damages. The defendant’s conduct did not reach the required threshold of oppressive, arbitrary or unconstitutional behaviour of an outrageous character. The abrupt release and absence of an apology did not take the case beyond aggravated damages. No exemplary damages were awarded.
5. Interest was awarded under section 35 A of the Supreme Court Act 1981 at 2% per annum from 20 November 2014 to judgment. Judgment was entered for £105,000, subject to any 10% uplift arising from the claimant’s Civil Procedure Rules 1998 Part 36 offers. Permission to appeal was refused. Costs were provisionally apportioned 90% to the claimant and 10% to the defendant, with mutual set-off reducing the claimant’s entitlement to 80%.

The judgment followed the court’s earlier liability judgment in the same litigation, [2016] EWHC 1133 (QB). The present judgment assessed damages and dealt with consequential matters; it was not itself an appellate decision.