FXS v The Mulberry Bush Organisation Ltd

Damages for battery may be awarded without physical injury. The compensatory award may reflect discomfort, disgrace, humiliation and injury to feelings. Comparable awards assist as a cross-check but do not impose a rigid benchmark.

Aggravated damages may be awarded where the defendant’s conduct, including the manner of committing the wrong or conducting the litigation, is insulting, malicious, oppressive or high-handed. In false imprisonment claims, damages compensate for loss of liberty, shock and humiliation. A claimant need not prove that unlawful detention caused greater distress than lawful restraint.

The unsuccessful party ordinarily pays the successful party’s costs. Indemnity costs require conduct or circumstances outside the norm. Costs budgets may be approved while assessment of additional costs is deferred.

The claimant was placed at the defendant’s residential school between June 2008 and September 2009. In an earlier liability judgment, the court found three face-down restraints to constitute battery and 14 uses of a towel to confine the claimant to his room to constitute false imprisonment. The negligence claim failed.

The court then determined the level of basic and aggravated damages, the appropriate costs order, whether costs should be assessed on the indemnity basis, and whether updated costs budgets should be approved.

1. Battery. Damages were recoverable without physical injury. The relevant compensatory harm was injury to feelings, including discomfort, disgrace and humiliation. The three face-down restraints involved inherent safety risks, lack of staff training and breach of the school’s policy. The fact that other restraints were lawful did not reduce the damages for the batteries. Awards in other cases and the minor injuries guideline were used only as cross-checks. Basic damages were assessed at £2,000 for each battery, totalling £6,000. (paras 12–16)
2. Aggravated damages. Aggravated damages may be awarded for features of the defendant’s conduct or litigation conduct that are insulting, malicious, oppressive or high-handed. The school’s failure to appreciate the seriousness of face-down restraint and its reluctance to acknowledge the policy breaches justified £4,000 aggravated damages. (paras 12, 17–18)
3. False imprisonment. Compensatory damages reflected loss of liberty, shock and humiliation. The claimant’s challenging behaviour did not reduce the seriousness of the unlawful confinement, and he did not need to prove that the confinement caused greater distress than lawful restraint. Basic damages were £2,000 for the nearly five-hour detention and £300 for each of the other 13 occasions, totalling £5,900. Continued use of the towel method despite objections justified £3,000 aggravated damages. (paras 26–34)
4. Costs. The claimant was the successful party in the practical sense. The negligence claim’s failure did not justify an issues-based costs order because the heads of claim were intrinsically linked and the evidence relevant to negligence also informed the successful claims. The school was ordered to pay the claimant’s costs on the standard basis, subject to detailed assessment. Indemnity costs were refused because the conduct relied upon did not take the case out of the norm. (paras 38–45)
5. Updated costs budgets were approved under CPR 3.15A, with assessment of additional costs deferred to detailed assessment if costs were not agreed. (paras 46–47)

This was a first-instance determination of damages and costs following the court’s earlier liability judgment in FXS v The Mulberry Bush Organisation Ltd, [2024] EWHC 1406 (KB). The negligence claim had failed, but the claimant had succeeded on three batteries and 14 instances of false imprisonment.