Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2)

Damages for false imprisonment are assessed by asking what would probably have happened if the tort had not been committed. Nominal damages are appropriate only where the defendant proves, on the balance of probabilities, that the claimant would have been detained lawfully and placed in substantially the same position. It is unnecessary to prove inevitability.

A curfew unlawfully imposed under immigration restriction powers constitutes imprisonment where compliance is reinforced by criminal sanctions and electronic monitoring. Compensatory damages must reflect the actual effect of the restriction, assessed globally and sensitively to the facts. Aggravated damages require additional conduct making the basic award insufficient.

The claimant had been released from immigration detention and was subjected to an overnight curfew between 3 February 2014 and 14 July 2016. The curfew was imposed under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The defendant accepted that this power did not authorise a curfew, following the Court of Appeal’s decision in R (Gedi) v Secretary of State for the Home Department, [2016] 4 W.L.R. 93.

An earlier judgment had determined that the curfew amounted to detention for the purposes of false imprisonment. The remaining issues were whether only nominal damages were payable, the amount of compensatory damages, and whether aggravated damages were appropriate.

1. Liability. The claimant had established both ingredients of false imprisonment: imprisonment and absence of lawful authority. A requirement to remain at specified premises for eight hours each day, backed by criminal sanctions and electronic monitoring, constituted detention. The statutory power to impose restrictions on residence did not authorise a curfew; such a condition could only be imposed as a condition of bail under the Immigration Act 1971, as explained in R (Gedi) v Secretary of State for the Home Department, [2016] 4 W.L.R. 93.
2. Nominal damages. The compensatory principle is to place the claimant in the position he would have occupied had the tort not occurred. The defendant had to prove that a lawful power existed and that it would, on the balance of probabilities, have been used so that the claimant would have been subjected to the same curfew. It was unnecessary to prove inevitability. The defendant abandoned that argument and had not adduced evidence capable of discharging the burden.
3. Compensation. The assessment was global and fact-sensitive. Relevant matters included that the claimant was confined only at his own home during night hours, remained free during the day, and experienced restricted social activity, anxiety about breach consequences and a limited additional contribution to pre-existing depression. The appropriate compensatory award was £4,000.
4. Aggravated damages. The defendant’s repeated legal errors did not amount to high-handed, insulting, malicious or oppressive conduct, nor did they make the compensatory award insufficient. Aggravated damages were refused.

The defendant was permitted to amend her defence and withdraw the nominal-damages argument. The claim succeeded to the extent of an award of £4,000, with no award for aggravated damages.

The judgment records an earlier judgment in the same proceedings, R (Jollah) v Secretary of State for the Home Department, [2017] EWHC 330 (Admin) , which determined that the curfew constituted detention for false-imprisonment purposes. This judgment determined the damages issues.