Diop, R (On the Application Of) v Secretary of State for the Home Department

Damages for unlawful immigration detention must compensate the claimant for the loss of liberty and consequential injury to feelings. The assessment should ordinarily be global rather than mechanically divided between basic and aggravated damages, because that division risks both double counting and under-compensation. Aggravated damages are compensatory, not punitive, and no fixed threshold of high-handed, insulting, malicious or oppressive conduct is required. A claimant’s conduct cannot reduce damages for false imprisonment under the Law Reform (Contributory Negligence) Act 1945, since false imprisonment is an intentional tort. Mitigation may nevertheless be relevant after the infringement becomes actionable, provided the conduct materially affects the unlawful detention or the loss suffered.

The claimant had been lawfully detained under immigration powers after serving a custodial sentence. The First-tier Tribunal granted bail in principle on 10 November 2017, subject to the Secretary of State providing suitable accommodation within 14 days. The accommodation was not secured until early December, and the claimant was released on 7 December 2017.

A previous judgment had declared the detention unlawful from 10 November to 7 December 2017. The issue before the court was the appropriate compensation for 28 days’ false imprisonment, including whether aggravated damages or deductions should be made because of the claimant’s conduct or the circumstances leading to detention.

1. Damages. The claimant was entitled to compensation for 28 days’ unlawful loss of liberty and for consequential injury to his feelings. The assessment was not mechanical and had to reflect the particular facts, including the length of detention and the claimant’s increasing frustration, anger and anxiety.
2. Global award. Following the reasoning in Thompson v Commissioner of the Police [1998] QB 498, MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980 and later authorities, it was preferable to make one global award. Separating basic and aggravated damages involved an arbitrary distinction and risked double counting. Aggravated damages compensate aggravated injury to feelings; they are not exemplary damages and do not require proof of a fixed category of conduct.
3. The Secretary of State’s failure to take specific steps to comply with the First-tier Tribunal’s accommodation order was inexcusable and, if necessary, would have satisfied any threshold for aggravated damages. Its relevance was the effect on the claimant’s feelings, rather than punishment of the public authority.
4. Conduct and deductions. Section 1 of the Law Reform (Contributory Negligence) Act 1945 did not apply because false imprisonment is an intentional tort. Mitigation could in principle prevent recovery for avoidable loss, but only after an actionable infringement and where the claimant’s conduct materially affected the unlawful detention or loss. The claimant’s earlier conduct and the need for Level 3 accommodation did not materially cause or affect the unlawful detention. Nor was it shown that the intervention of BID caused the Senegalese authorities to refuse an emergency travel document.
5. The court rejected the suggested use of reported cases as rigid guidelines. They provided only general assistance because damages depended on the facts of each case. The appropriate global award was £9,000, with interest at 8 per cent from 7 December 2017. No separate award for basic and aggravated damages was required.

The claim followed an earlier first-instance judgment declaring the detention unlawful: R (Diop) v Secretary of State for the Home Department [2018] EWHC 1934 (Admin) . This judgment determined the consequential damages issue.