R (WL (Congo)) v Home Secretary [2011] UKSC 12; [2012] 1 AC 245

The measure of damages determines the appropriate compensation for a Claimant's loss or injury. It includes both tangible losses, like property damage, and intangible losses, like emotional distress, based on the extent and impact of the harm.

Public law errors and abuse of power in detention occur when authorities exceed their legal authority or act improperly. This can lead to unlawful detention, and claimants may seek compensation for any resulting harm.

If it is shown that Claimants would have been detained regardless of any unlawful actions, the impact of the unlawful detention may be reduced, affecting the assessment of damages.

• Claimants may receive more than nominal damages if they can show that the false imprisonment caused significant harm, considering factors like the duration and conditions of the confinement.

Mighty & Lumba (“Claimants”), foreign nationals convicted of crimes and imprisoned, were detained by the Home Secretary after their sentences under paragraph 2(2) of Schedule 3 to the Immigration Act 1971, pending deportation.

• After deportation orders were issued, they continued to be detained under paragraph 2(3) while awaiting removal.

The Claimants challenged their detention, arguing it was unlawful due to the application of an unpublished blanket policy of detention, which contradicted the published policy and legal powers.

• They also sought damages for false imprisonment.

The judge found the unpublished policy was not a blanket policy but involved a presumption in favor of detention.

The judge declared the policy was unlawful due to lack of publication but dismissed the damages claim, ruling the detention was lawful as it was not caused by the unlawful policy.

On appeal, the Court of Appeal ruled the unpublished policy was indeed unlawful but upheld the dismissal of damages, finding the policy was not the direct cause of the claimants' detention.

• It was later revealed that the Home Office continued the policy despite legal concerns and instructed caseworkers to provide misleading reasons for detention.

The Home Secretary’s unpublished policy was found unlawful as it functioned as a blanket policy and was inconsistent with the published policy.

• The Home Secretary was required to publish the policy to allow affected individuals to make informed representations.

• Thus, the detention of claimants under this unlawful policy was an abuse of power. (Lord Phillips of Worth Matravers PSC dissenting)

Allowing the appeals (with dissent from Lord Phillips of Worth Matravers PSC, Lord Rodger of Earlsferry, and Lord Brown of Eaton-under-Heywood JJSC), it was ruled that false imprisonment is actionable per se.

• The burden of proof shifts to the defendant to show lawful justification for imprisonment.

• Breaches of public law principles can support a claim for false imprisonment if they are relevant to the detention decision.

• The Home Secretary’s unlawful detention made them liable for false imprisonment.

If the detention had been lawful, the claimants would have been detained anyway.

• Thus, they suffered no actual damage from the unlawful detention.

• Despite misconduct by Home Office officials, there was no basis for exemplary or vindicatory damages, so the claimants were entitled only to nominal damages. (Per Lord Phillips of Worth Matravers PSC, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore, and Lord Dyson JJSC) 

The Home Secretary’s power to detain should only be used for deportation purposes, for a reasonable duration, and with diligence.

• Delays during a meritorious appeal should be considered, but not during a hopeless one.

• Whether the claimant’s detention for over 54 months while appealing, with no prospect of deportation, was lawful was examined. (Lord Phillips of Worth Matravers PSC dissenting)

This judgment highlights the application of the Wednesbury principles, emphasizing that discretion must be exercised reasonably and exclude irrelevant considerations.

• The case distinguishes between procedural and substantive legality, illustrating that not every procedural flaw results in unlawful detention.

• Instead, remedies focus on correcting decision-making processes rather than automatically invalidating detention.

Lord Brown’s approach reflects a pragmatic view of administrative law, acknowledging that legal doctrines like nullity are applied based on specific circumstances.

• The judgment’s outcome—awarding nominal damages and dismissing the appeals—demonstrates a balanced approach, ensuring that public law breaches are addressed without leading to disproportionate claims.

• This decision reinforces the importance of practical considerations in public law while maintaining principled standards.

The court’s approach to balancing the legality of detention with public law breaches is particularly noteworthy.

• Lord Brown argues that despite public law breaches by the Secretary of State, the detainees’ continued detention was justified.

• The emphasis on the practical impact of a breach—that is, whether it would have led to a different outcome if a lawful policy had been followed—illustrates a nuanced understanding of legal remedies.

• This perspective challenges the notion that every procedural error automatically leads to a claim for false imprisonment, focusing instead on the actual impact of the breach.

Associated Provincial Picture Houses v Wednesbury Corporation