Sapkota, R (on the application of) v Secretary of State for the Home Department

Where detention is unlawful because of procedural unfairness, the defendant must prove, on the balance of probabilities, both that the claimant could lawfully have been detained and that the defendant would in fact have detained the claimant had a fair procedure been followed. It is insufficient to show merely that a rational decision to detain could have been made.

Where that counterfactual case is not established, substantial damages may be awarded for false imprisonment. Damages must be assessed flexibly and by reference to the particular circumstances. Initial shock, previous good character, humiliating treatment, oppressive conduct, inadequate care and continuing psychological effects may materially increase the award, including through aggravated damages.

The claimant’s leave to remain was curtailed and he was detained for 36 days after immigration officers concluded that his proposed marriage was sham and bigamous. The Administrative Court had previously found the decisions procedurally unfair, quashed the curtailment decision and found the detention unlawful.

At the damages hearing, the defendant accepted that detention was unlawful but argued that the claimant would have been lawfully detained in any event. The issues were whether only nominal damages were recoverable, the proper assessment of general and special damages, and whether aggravated damages should be awarded.

1. Unlawful detention and substantial loss. The defendant bore the burden of proving that, had a fair procedure been followed, she could lawfully and would in fact have detained the claimant. The relevant question was the probable counterfactual conduct, not whether a rational decision to detain could have been made: see Lumba v Secretary of State for the Home Department [2011] UKSC 12, and R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 (para [27]).
2. The defendant produced no evidence establishing either that the sham-marriage finding would independently have been made or that the claimant could not promptly have rebutted the allegation of bigamy. The claim that only nominal damages were recoverable therefore failed. The claimant was entitled in principle to compensation for loss and damage caused by the false imprisonment (paras [24]-[30]).
3. General damages. The approach in Thompson v Commissioner of Police for the Metropolis [1998] QB 498 was applied, subject to the warning that the figures must not be applied mechanistically. The initial period attracted an enhanced award because of the claimant’s shock, lack of previous detention, humiliating accusation, inadequate food and heating, and oppressive treatment. The first 24 hours were valued at £11,000 (paras [31]-[38]).
4. The remaining 35 days attracted £12,000, reflecting the lack of proper provision for the claimant’s religious needs and the continuing adverse effect on his mental health. General damages therefore totalled £23,000 (paras [39]-[40]).
5. Aggravated and special damages. The humiliating circumstances and high-handed and oppressive conduct justified an aggravated element of £5,000, included within the first-day assessment to avoid double counting. Special damages of £658.63 were awarded for loss of earnings until 28 December 2015. No further aggravated damages were justified by the conduct of the litigation (paras [35]-[42]).
6. The total award was £24,515.43, together with interest, with the parties invited to agree the appropriate amount of interest (paras [41]-[44]).

The judgment records that the Administrative Court, in an earlier judgment in the same proceedings, found the curtailment and detention decisions procedurally unfair, quashed the curtailment decision and found the detention unlawful. This judgment determined the consequential damages claim.