Wamala v Tascor Services Ltd

Liability for battery and assault is strict. Once a claimant proves intentional force or threatened force, the defendant must establish lawful justification.

Immigration escorts may use statutory powers only where the statutory and contractual conditions governing the escort arrangements are satisfied. Removal must be carried out in accordance with valid removal directions. A detainee may use reasonable force to resist an unlawful removal or unlawful force. The escort’s lack of knowledge of the unlawfulness does not alter the position.

General powers to prevent crime, preserve the peace or maintain good order cannot justify force which impairs that right of resistance. The court awarded substantial damages, including aggravated and exemplary damages, for unlawful removal and the force used.

The claimant was an immigration detainee subject to removal directions for an EgyptAir flight. After that flight had departed, the defendant’s employees took him from detention and attempted to place him on a Qatar Airways flight, relying on an altered movement notification. No valid removal directions or UKBA authority existed for the Qatar flight.

A struggle followed when the claimant sought to speak to the captain. The claim concerned battery, assault, personal injury and damages under article 3 of the Convention. The central questions were whether the defendant had lawful authority to take custody of the claimant and use force, and, alternatively, whether the force used was excessive.

1. Outcome. The defendant was liable in damages for the threatened and actual use of force. The court awarded £30,000 for physical and psychiatric injuries, £8,000 aggravated damages and £10,000 exemplary damages, a total of £48,000.
2. Battery and assault are trespassory torts actionable without proof of fault. Once force or threatened force is established, the burden lies on the defendant to prove lawful justification. The reasoning in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 applied by analogy.
3. Under the Immigration Act 1971, a person may be placed on an aircraft only in accordance with valid removal directions. The Qatar flight had no such directions, and the MS778 movement notification ceased to authorise custody once the EgyptAir flight had departed.
4. The Immigration and Asylum Act 1999 did not assist the defendant. The duties and power to use reasonable force under Schedule 13 arose only where the detainee was one for whose delivery or custody the DCO was responsible in accordance with escort arrangements. There was no effective UKBA instruction authorising the defendant to take custody for the Qatar flight. The existence of the services agreement alone was insufficient.
5. The claimant was entitled to use reasonable force to resist the unlawful removal and the unlawful force used against him. The defendant’s employees could not rely on self-defence while the claimant was acting within that entitlement. Nor did prevention of crime, keeping the peace or maintaining good order justify the force used. The court also rejected the suggested reliance on the Air Navigation Order offences.
6. The force was unlawful from the initial light holds on the aircraft stairs. The force on board, including the immediate handcuffing, restraint, twisting of the head and neck, pressure applied by an escort and the subsequent dragging, was also unjustified and, alternatively, excessive.
7. The court declined to determine broader questions under article 3 of the Convention because the common law provided at least equivalent protection and no additional damages were claimed.

First-instance judgment. The judgment records earlier interlocutory decisions, including a preliminary-issue order by Mr Justice Mitting and a declaration by Mrs Justice Patterson that there was no valid removal direction for the Qatar Airways flight.