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

Damages for unlawful detention are assessed globally and fact-sensitively. There is no tariff or daily rate. The award ordinarily reflects both the initial shock and the continuing deprivation of liberty, with the rate generally tapering after the first 24 hours. Aggravated damages require features of the detention which increased the claimant’s injury to feelings. The unlawfulness of the underlying policy, post-release conduct of litigation, absence of an apology, and lack of contrition do not aggravate damages unless they affected the claimant’s pain and suffering. Exemplary damages for governmental conduct require an outrageous misuse of executive power, not merely an unlawful policy.

The claimant, a Polish national, claimed compensatory, aggravated and exemplary damages for 38 days of unlawful immigration detention. His detention occurred during the Home Office’s operation concerning EEA nationals found sleeping rough. The Secretary of State admitted liability after the policy was held unlawful in R (Gureckis) v Secretary of State for the Home Department [2018] 4 WLR 9. The issues were the proper assessment of non-financial loss, whether particular features justified aggravated damages, and whether the conduct reached the threshold for exemplary damages.

1. Compensatory damages. The assessment is neither mechanical nor precise. It requires a global evaluation of the claimant’s injury to feelings, pain and suffering, and the particular circumstances of the detention. The authorities provide general guidance, not a tariff or constraint on the outcome.
2. The basic award ordinarily includes compensation for the initial shock of detention and for the continuing loss of liberty. The initial period attracts a higher rate. Thereafter, the rate generally tapers, while still reflecting the seriousness of continuing detention. Comparisons with personal-injury awards may assist at a broad level, but cannot replace case-specific assessment.
3. A further element may compensate for special features aggravating the claimant’s injury to feelings. There is no fixed threshold. Relevant matters may include the circumstances of detention, the defendant’s conduct during detention, and continuing effects on health or well-being.
4. On the evidence, the claimant’s alcohol dependency did not aggravate the detention because appropriate safeguards were taken and no deterioration was shown. The generic unlawfulness of the rough-sleeping policy did not affect his pain and suffering. Litigation delays, failure to settle, opposition to interim payments, and arguments advanced in the lead litigation occurred after release or were not shown to have increased the injury caused by detention. The absence of an apology or contrition likewise added nothing to the compensatory measure.
5. The claimant was entitled to £6,400 for the initial period and £8,400 for the remainder of the detention, giving total compensatory damages of £14,800. No aggravated damages were awarded.
6. Exemplary damages were unavailable. Although governmental conduct may qualify where it involves an oppressive, arbitrary or unconstitutional misuse of power, the conduct must be outrageous and involve a gross misuse of executive power. The unlawful policy and the material relied on did not meet that threshold.