Neutral Citation Number: [2015] EWCA Civ 79
Case No: B2/2014/0611
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE HAND QC
Case Number: 1UD76887
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 10th February 2015
Before:

THE CHANCELLOR
LORD JUSTICE CHRISTOPHER CLARKE
and
LORD JUSTICE VOS
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Between:

	Lee Bostridge

	Claimant/
Appellant	
	- and –
		
	Oxleas NHS Foundation Trust	Defendant/Respondent	
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 (Transcript of the Handed Down Judgment of
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Mr Richard Drabble QC and Mr Denis Edwards (instructed by Campbell-Taylor Solicitors) for the Claimant/Appellant
Mr Philip Havers QC (instructed by Clyde & Co LLP) for the Defendant/Respondent
 
Hearing date: 29th January 2015
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Judgment
Lord Justice Vos: 
Introduction
1.	The single issue in this appeal is whether the appellant, a mentally disordered patient unlawfully detained in hospital for some 442 days, is entitled to substantial damages instead of the nominal damages awarded by the judge, in circumstances where he would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness. 
2.	The short point made by the appellant is as to the effect of the two Supreme Court cases on which HHJ Hand QC relied (Lumba v. Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245 (Lumba), and Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299 (Kambadzi)).  The appellant contends that in those cases the Secretary of State always had power to detain the claimants in question, and that she would have exercised that power anyway had the unlawfulness come to light.  In contrast in this case, the NHS trust did not have such a power at all; the NHS trust was dependent on lawful compliance with sections 3 and 11 of the Mental Health Act 1983 (the “MHA”), which required actions by third parties, namely by two medical practitioners and by either the nearest relative of the patient or by an approved mental health professional.  Accordingly, the Supreme Court’s determination that, where the Secretary of State would herself have detained the claimants in any case, those claimants are entitled only to nominal damages for the unlawful detention, cannot be read across to the situation in this case.
3.	The respondent, Oxleas NHS Foundation Trust (the “NHS trust”), contends that it does not matter that it did not itself have the power to detain the appellant.  The only question that was relevant to the issue of quantum of damages (as opposed to liability which was admitted) was whether the appellant would in fact have been lawfully detained by some other means in any event.
The agreed facts
4.	The judge recorded the agreed facts at paragraphs 3-14 of his judgment.  I can summarise them briefly as follows:-
i)	On 16th July 2008, the appellant, who suffers from schizophrenia, was detained in the NHS trust’s hospital under section 3 of the MHA.
ii)	On 2nd April 2009, the First-tier Tribunal (Mental Health) (the “FTT”) reviewed the appellant’s case and ordered his discharge, but postponed that discharge until 15th April 2009 in order that a Community Treatment Order (“CTO”) could be put in place.  A CTO was put in place but was technically flawed, because section 17A(2) of the MHA provides that only a person “liable to be detained in a hospital in pursuance of an application for admission for treatment” can be made subject to a CTO.  When the appellant was released on the 15th April 2009, he was no longer a detained patient, so that the CTO was unlawful and invalid.
iii)	On 19th August 2009, the NHS trust, acting by a responsible clinician, purported to recall the appellant to hospital under section 17E(6) of the MHA in reliance on the CTO, and thereafter detained him in hospital.  Detention of the appellant for the 422 days between 19th August 2009 and 3rd November 2010 (when he was discharged) was, therefore, unlawful.  The NHS Trust accepted liability for the tort of unlawful imprisonment and/or for acting unlawfully under section 6 of the Human Rights Act 1998.  
iv)	The FTT reviewed the appellant’s case twice during his detention on 21st January 2010 and 26th May 2010, deciding on both occasions that his condition required continued detention.
v)	Neither the appellant nor anyone responsible for his mental health care was aware that the appellant’s detention was unlawful until 3rd November 2010.  The appellant’s independent psychiatric expert reported on 10th October 2013 that the appellant’s readmission under section 3 of the MHA would have been indicated throughout the period of unlawful detention on the basis of his mental state, known vulnerability and the fact that he was refusing medication.
vi)	Had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway.
vii)	On 3rd November 2010, the unlawfulness of the appellant’s detention came to light at a scheduled FTT hearing.  He was released that same day and then lawfully readmitted and detained under section 3 of the MHA until discharged on 13th September 2011; he was detained again on 18th April 2013.

The judge’s decision 
5.	The judge decided that Lumba and Kambadzi established 3 principles as follows:-
i)	The tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully;
ii)	There is no principle in the law of England and Wales of “vindicatory” damages; and
iii)	Where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal.
6.	The judge held that there was no basis in paragraphs 69-71 of Baroness Hale’s speech in Kambadzi for a distinction between illegality at the threshold and illegality in the procedure once the threshold was crossed.  In that case, such a distinction was rejected and it was established that every kind of illegality leads to a conclusion of false imprisonment.
7.	The judge held that there was no basis, after Lumba (by which he was bound), for an argument that, irrespective of loss, the infringement of personal liberty amounting to the tort of false imprisonment must be marked by an award greater than nominal damages (see Lord Dyson at paragraphs 90-101, Lord Collins at paragraphs 222-7, Lord Phillips at paragraph 335, Lord Brown at paragraph 361, and Lord Kerr at paragraph 256).  The cases where significant sums have been awarded were explained on the basis that the claimants there suffered a loss.  Here it was accepted that there was no loss.  The judge said that the appellant “would have been detained had his illness been correctly addressed via section 3 [of the MHA], as it should have been on 19 August 2009”.  He would then have received precisely the same treatment and been discharged in September 2011.  In the circumstances, the appellant was entitled only to nominal damages.
The issues raised by the grounds of appeal 
8.	The appellant raised the following three issues, for which permission was given by Kitchin LJ at an oral hearing on 4th July 2014:-
i)	Whether the judge was wrong to hold on the basis of Lumba and Kambadzi that the appellant was only entitled to nominal damages when he was detained by the NHS trust without any statutory authority or jurisdiction;
ii)	Whether, for policy reasons, an award of substantial damages was required on the basis of the decision of the European Court of Human Rights in Wintwerp v. The Netherlands (1979-80) 2 E.H.R.R. 387; and
iii)	Whether, even if the fact that the appellant would anyway have been detained was relevant to the appropriate quantum of damages, those damages ought to have been more than nominal to reflect both his loss of liberty and loss of the procedural and substantive protections afforded by a lawful detention.
9.	In oral argument, Mr Richard Drabble QC, leading counsel for the appellant refined the first and central issue.  He contended that the prior cases of Christie v. Leachinsky [1946] KB 124 (CA) [1947] AC 547 (HL) (Christie) and Kuchenmeister v. Home Office [1958] 1 QB 496 (Kuchenmeister), when read together with Lumba and Kambadzi, mandated the result that nominal damages were only appropriate when the defendant itself (as opposed to some third party) could and would anyway have detained the claimant under a lawful power had the illegality come to light.
10.	It is, I think, useful to look first at the 4 cases upon which Mr Drabble places central reliance before returning to the issues I have mentioned.
Christie
11.	In Christie, the claimants were arrested by police officers on a charge of unlawful possession under the Liverpool Corporation Act 1921, which in the circumstances gave no power of arrest without a warrant.  It was common ground that the officers could lawfully have arrested the claimants for the felony of stealing a bale of cloth, which they had reasonable grounds for suspecting.  The Court of Appeal and the House of Lords held that the officers were liable for the tort of false imprisonment, even though they could quite lawfully have arrested the claimants had they told them they were doing so on the grounds of the suspected felony.   There was no discussion in either the Court of Appeal or the House of Lords of the question of what damages should be awarded for the tort of false imprisonment.  Instead, the judgments concentrated on the issue of whether or not the officers were liable for the tort at all.  The Court of Appeal remitted the case for a jury to assess the damages.

Kunchmeister
12.	In Kunchmeister, a German airline passenger en route from Amsterdam to Dublin was detained in the immigration hall at London Airport and prevented from making his connection.  The immigration officers had no power to detain him as they did under article 2(1)(b) of the Aliens Order 1953, but would have had power to prohibit him from landing in the first place, which they in fact had not done.  Barry J held that the defendant was liable for false imprisonment notwithstanding that it could have lawfully exercised the power to prevent the claimant landing.  The judge awarded damages of £150 even though “no pecuniary damage [had] been suffered” on the basis that it was “a fair figure which will vindicate the plaintiff’s rights without amounting to a vindictive award”. 
Lumba
13.	It is important to understand precisely what was decided by the majority of the Supreme Court in Lumba.  The appellants were detained by the Secretary of State on conclusion of their terms of imprisonment pending the making of deportation orders against them.  Their detention arose as a result of the application of an unpublished policy.  But it was held by the judge at first instance that, even if the Secretary of State had applied her published policy, she would anyway have detained them pending deportation.  
14.	The majority of the Supreme Court (6 out of the 9 Justices) decided that false imprisonment was a trespassory tort that was actionable per se whether or not the victim had suffered harm.  Once direct and intentional imprisonment by the defendant had been established, the burden passed to the defendant to show a lawful justification.  If that justification was by a public authority with power to detain, that authority had to show the power had been lawfully exercised.  If the power were not lawfully exercised, then the claim would succeed if the breach of public law bore on and was relevant to the decision to detain.   It was not a defence to show that a lawful decision to detain could and would have been made.  Accordingly, the Secretary of State was liable for the tort of false imprisonment.
15.	In addition, a majority of the Justices in Lumba decided that the claimants had suffered no loss as a result of the unlawful exercise of the power to detain, because it was inevitable that they would anyway have been detained had the published policy and the correct principles been applied. Accordingly, there was no justification for either exemplary or vindicatory damages, and the claimants were entitled to no more than nominal damages.
The Kambadzi case
16.	In Kambadzi, the facts were similar to Lumba save that the unlawfulness relied upon was the Secretary of State’s failure to carry out regular reviews of the claimant’s detention. The majority of the 5 justices in the Supreme Court held that the failure to adhere to the published policy as to regular reviews of detention without good reason was an error which bore on and was relevant to the decision to detain the claimant, and made the detention itself unlawful.  It was no defence to the claim for false imprisonment to show that, if the reviews had been carried out, the claimant would still have been detained, although that might be relevant to the quantum of damages.  The Supreme Court did not decide the question of damages but held that the claimant was entitled at least to nominal damages based on normal compensatory principles (Lord Hope at paragraph 55, Baroness Hale at paragraph 77, and Lord Kerr at paragraph 89). 
Issue 1: Was the judge wrong to hold that the appellant was only entitled to nominal damages?
17.	The appellant seeks to interpret certain dicta in Lumba and Kambadzi to make good his proposition that those cases only decided that there would be nominal damages for false imprisonment if the defendant could show that it could and would itself have exercised a lawful power to detain, had it not acted unlawfully.  Mr Drabble points first to the dissenting judgment of Lord Brown.  He submits that the case falls within Lord Brown’s first category at paragraph 347 namely where “[f]alse imprisonment is the inescapable result of detention absent any power to detain”, and observes that Lord Brown would not have been in favour of awarding only nominal damages (see paragraph 361).  It should, however, be noted that Lord Brown did not think that the tort of false imprisonment was made out at all on the facts of either Lumba and Kambadzi.  It is also at least possible that this case falls outside Lord Brown’s first category, but within his second, namely that “the tort of false imprisonment is committed … if someone is detained in breach of a condition precedent to the exercise of a detention power”.  
18.	Mr Drabble then refers to the following particular passages from the judgments in Lumba as supporting his argument:-
i)	Lord Dyson at paragraph 169: “The Appellants are, however, only entitled to nominal damages because, if the Secretary of State had acted lawfully and applied her published policy, it is inevitable that both Appellants would have been detained” (my emphasis).
ii)	Lord Dyson at paragraph 93, having commented that Roberts v. Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 was wrongly decided as to damages: “I agree that the Plaintiff was entitled to be put into the position in which he would have been if the tort of false imprisonment had not been committed.  But I do not agree that, if the tort had not been committed, the Plaintiff would not have been detained between 5.25am and 7.45am.  On the judge’s findings, if the tort had not been committed, he would have been detained during this period.  It seems to me that the fallacy in the analysis in Roberts is that it draws no distinction between a detainee who would have remained in detention if the review had been carried out (and therefore no tort committed) and a detainee who would not have remained in detention if the review had been carried out. But the position of the two detainees is fundamentally different.  The first has suffered no loss because he would have remained in detention whether the tort was committed or not.  The second has suffered real loss because, if the tort had not been committed, he would not have remained in detention” (original emphasis).
iii)	Baroness Hale at paragraphs 210-211: drew a distinction between cases where the defendant has no power to detain, and cases where, as in Lumba, the defendant did have such a power that it could have exercised lawfully.  Lord Kerr drew a similar distinction at paragraph 253.
19.	In oral argument, Mr Drabble submitted that Christie was direct authority for the proposition that, where an action for false imprisonment lies, more than nominal damages will follow.  He said that the House of Lords had upheld the order of the Court of Appeal to direct that a jury assessed damages on the basis that the detention was unlawful.  There was, as Lord Brown had pointed out at paragraph 345 in Lumba, no hint that the reasoning was affected by the fact that the arrest could have taken place lawfully.  Finally, Mr Drabble submitted that Lord Brown was right in his analysis up to the point where he considered the proper approach to damages on the footing that the reason for false imprisonment was a procedural error committed by the tortfeasor in the course of the detention, which that tortfeasor would otherwise have had the power to maintain.  
20.	In my judgment, the dicta relied upon by Mr Drabble do not provide the full picture.  The tort of false imprisonment is compensated in the same way as other torts such as to put the claimant in the position he would have been in had the tort not been committed.  Thus if the position is that, had the tort not been committed, the claimant would in fact have been in exactly the same position, he will not normally be entitled to anything more than nominal damages.  The identity of the route by which this same result might have been achieved is unlikely to be significant.
21.	The majority of the Justices in Lumba make it clear that nothing more than nominal damages can be awarded where the claimant would have been detained anyway.  Paragraph 93 of Lord Dyson’s judgment (cited above) shows that a detainee who would have remained in detention had the proper procedures been followed (and had no tort been committed) “has suffered no loss because he would have remained in detention whether the tort was committed or not”.  Lords Phillips and Collins agreed with Lord Dyson as to nominal damages (paragraphs 335 and 237).  Lord Kerr was to a similar effect at paragraph 253 where he said: “I believe that a distinction is clearly merited between those cases where it is plain that the detainees would have been released and those where it can be shown that they would have been lawfully detained, had the correct procedures been followed” (original emphasis).  None of these Justices is making a distinction between situations in which the power to detain is held by the defendant and situations where third parties would have effected the detention.  Lords Brown and Rodger agreed that it would be wrong to award substantial compensation (paragraphs 342 and 361).  Lady Hale was not in the majority on the question of nominal damages, so it is hard for Mr Drabble to draw support from what she said (see paragraphs 210-13).
22.	Even Lord Dyson’s single conclusion at paragraph 169 to the effect that the appellants were only entitled to nominal damages “because, if the Secretary of State had acted lawfully and applied her published policy, it is inevitable that both Appellants would have been detained” does not help the appellant.  Lord Dyson is referring to what the Secretary of State would have done because that was the situation in that case.  He cannot, I think, be taken to have meant that it was a requirement that the lawful power to detain vested in the Secretary of State herself.
23.	As I have said, the principle dictates that the court, in assessing damages for the tort of false imprisonment, will seek to put the claimant in the position he would have been in had the tort not been committed.  To do that, the court must ask what would have happened in fact if the tort had not been committed.  In each of Lumba and Kambadzi, the answer was obvious.  Had the torts of false imprisonment not been committed, the Secretary of State would have applied the published policy or undertaken the appropriate custody reviews.  In both cases, the claimants would still have been detained.  They sustained no compensatable loss.  The majority of the Supreme Court determined, in addition, that vindicatory damages were not available in these circumstances (see paragraph 74 of Baroness Hale in Kambadzi).
24.	That leaves Christie and Kuchenmeister.  In my judgment, Christie says nothing whatever about the proper assessment of damages in a case of false imprisonment.  It was concerned only with the question of whether the tort had been committed.  Moreover, the Justices in Lumba only referred to Christie as a case concerned with the commission of the tort (see Lord Dyson at paragraphs 57, 75 and 76, Lord Collins at paragraph 221).  Only Lord Brown seeks at paragraph 345 to draw out of Christie the fact that nominal damages were not mentioned.  But Lord Brown was considering the commission of the tort at that point in his judgment (on which issue he was dissenting).  It might also be noted that it is hardly surprising that the House of Lords in Christie said nothing about damages, when the Court of Appeal, which was substantially upheld, had remitted the assessment of those damages to a jury.  Mr Drabble was unable to say what arguments were addressed to that jury or what it ultimately decided.
25.	It is true that Kuchenmeister held that vindicatory damages were appropriate in a case of false imprisonment even where the claimant could have been lawfully detained or anyway impeded in his journey.  But that first instance decision must now be inconsistent with Lumba, which clearly laid down that vindicatory damages are not appropriate in a case of this kind.  Moreover, in Kuchenmeister, the immigration authorities could not in fact have lawfully impeded the claimant’s progress once they had failed to prevent him from landing (see paragraph 201 of Baroness Hale to this effect).
26.	It does not seem to me to be useful to consider further possible examples that are removed from this case.  It is clear, as the judge held, that the appellant in this case sustained no loss, because he would in fact have been lawfully been detained on 19th August 2009 under section 3 of the MHA, had the lack of authority to make a CTO been drawn to the NHS trust’s attention.  That, as it seems to me, is enough.  It demonstrates that, no substantial damages are necessary to put the appellant in the position that he would have been in, had the tort relied upon not been committed.
27.	I would, therefore, conclude that the judge was right to decide on the basis of Lumba and Kambadzi that the appellant was only entitled to nominal damages. Now that the law has been clarified by these cases, neither Christie nor Kuchenmeister points to any different conclusion.
Issue 2: Was an award of substantial damages required for policy reasons on the basis of Wintwerp?
28.	Mr Drabble did not argue this issue orally, accepting, I think, that if we were to reach the conclusion that I have intimated in respect of the first issue, Wintwerp would not make the difference.  He relied in his skeleton on the following passage at paragraph 39 of the judgment of the European Court of Human Rights:-
“The next issue to be examined is the ‘lawfulness’ of the detention for the purposes of Article 5(1)(e).  Such ‘lawfulness’ presupposes conformity with the domestic law in the first place and also … conformity with the purpose of the restrictions permitted by Article 5(1)(e); it is required in respect of both the ordering and the execution of the measures involving deprivation of liberty…

As regards the conformity with the domestic law, the Court points out that the term ‘lawful’ covers procedural as well as substantive rules.  There thus exists a certain overlapping between this term and the general requirement stated at the beginning of Article 5 (1), namely, observance of “a procedure prescribed by law”.”

29.	It is not in doubt that a breach of either substantive or procedural rules will lead to a finding of false imprisonment.  In my judgment, however, the ECtHR’s decision says nothing about the appropriateness of the compensation to be awarded once that finding is made.  In the circumstances of this case, I do not think that there were any policy considerations that required a substantial award of damages.
Issue 3: Ought damages anyway to have been more than nominal to reflect both the appellant’s loss of liberty and the loss of the procedural and substantive protections afforded by a lawful detention?
30.	This point too was not much pressed by Mr Drabble.  Indeed, it was also not suggested with any force that the judge ought to have made a greater than nominal award under section 6 of the Human Rights Act 1998 by way of “just satisfaction” for a breach of article 5 of the Convention.  In my judgment, once it is clear that the appellant sustained no loss, because he would in fact have been lawfully detained anyway whether or not the breach had occurred, it is hard to see how an award of anything more than nominal damages could be justified, whether as compensatory damages or as a just satisfaction.  For this reason, I do not think that the damages ought to have been more than nominal either to reflect the loss of liberty or the loss of the procedural and substantive protections afforded by a lawful detention.  Both these grounds for a substantial award are ruled out, as Baroness Hale acknowledged at paragraph 74 in Kambadzi, by the inappropriateness after Lumba of vindicatory damages in this kind of case.
Disposal
31.	For the reasons I have sought shortly to give, I would dismiss this appeal.

Lord Justice Christopher Clarke:
32.	I agree.
The Chancellor, Sir Terence Etherton:
33.	I also agree.