Holownia v Secretary of State for the Home Department

Compensatory damages for unlawful detention are assessed by reference to the claimant’s actual loss of liberty and consequential injury to feelings, not by a fixed daily tariff. The initial shock of detention may attract greater compensation, while damages generally taper over time. Aggravated damages remain compensatory and require an additional feature that increased the seriousness of the wrongful conduct’s impact on the claimant. Exemplary damages are distinct and punitive. They require one of the recognised categories, including oppressive, arbitrary or unconstitutional governmental action or conduct calculated to obtain a gain. An unlawful policy, without evidence of conscious wrongdoing, bad faith, malice or an ulterior profit motive, does not necessarily justify exemplary damages.

The claimant, a Polish national, brought proceedings concerning his detention under a Home Office policy directed at EEA nationals alleged to be rough sleepers and not exercising Treaty rights. Liability for unlawful detention had been admitted following the lead judgment in Gureckis and others [2017] EWHC 3298 (Admin). The present hearing determined basic, aggravated and exemplary damages for 153 days of detention. A claim concerning psychiatric or psychological injury was adjourned for separate determination. The central issues were the proper assessment of compensatory damages, whether the detention and its surrounding circumstances aggravated the claimant’s injury, and whether exemplary damages were available.

1. Compensatory damages. The claimant was entitled to damages for 153 days’ unlawful detention. Basic damages compensate for loss of liberty and consequential injury to feelings and reputation where relevant. They are assessed fact-sensitively, without a fixed daily rate. The initial shock of detention may justify a higher rate, while compensation normally tapers with time and should remain proportionate to awards in comparable areas of law.
2. Aggravated damages. Aggravated damages are compensatory, not punitive. They are available only so far as an additional feature increased the seriousness of the effect of the unlawful conduct on the claimant. Relevant features may concern the manner of detention, a malicious or prejudicial motive, or conduct during or after detention that directly aggravates the original wrong. The focus remains the additional distress caused to this claimant, with care taken to avoid double-counting and punishment by another name.
3. The evidence did not establish that dental treatment was withheld, that delay caused medically unnecessary surgery, or that the claimant was treated callously during his partial hunger strike. The likely distress caused by the protest and hunger strike was, however, reflected in the compensatory award. Criticism of the policy’s application, litigation delays and absence of an apology did not establish aggravating conduct or a proven additional impact on the claimant.
4. Exemplary damages. The reference in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 to arbitrary and outrageous executive action was fact-specific and did not exclude the other categories identified in Rookes v Barnard [1964] AC 1129. Nevertheless, the policy’s unlawfulness did not, on the evidence, amount to conscious wrongdoing, bad faith, malice or oppressive, arbitrary or unconstitutional governmental action. Nor was conduct calculated to make a profit established. The existence of many potential claimants also militated against a calibrated punitive award.
5. The claimant was awarded £32,000 basic damages and a further £5,000 to reflect the hunger-strike element, making a global compensatory award of £37,000. Exemplary damages were refused. Psychiatric injury remained outstanding, and consequential orders and further case-management directions were left to be agreed.

First-instance determination of damages following an admitted liability for unlawful detention. The judgment records the lead decision in Gureckis and others [2017] EWHC 3298 (Admin), which found the underlying policy unlawful.