Killian Flood BL

About this case:

• Citation:
  [2021] IECA 113
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian Murray

The case centred on the UK Supreme Court decision in R (WL (Congo)) v. Secretary of State for the Home Department [2011] UKSC 12 (‘the Lumba case’), which determined that where a person was unlawfully detained but would have been lawfully detained if proper procedures were followed, then only nominal damages could arise. However, the court rejected this approach, noting that the Lumba decision was fundamentally flawed in its analysis of the tort of false imprisonment.

Background

The plaintiff was an immigrant from Africa who claimed asylum in Ireland. The plaintiff claimed to be from Sierra Leone but the defendants believed he was Nigerian. His application for asylum was refused in 2009 and he subsequently brought an application for subsidiary protection. On 1 August 2011, while the application was pending, the plaintiff was arrested and detained in Dundalk on account of not holding a valid passport or visa which would allow him to enter Northern Ireland, his intended destination.

The plaintiff brought an Article 40 application for his release, which was only granted following a Supreme Court decision on 26 August. The appeal was allowed due to technical defects with the warrant. The plaintiff subsequently brought proceedings seeking damages for false imprisonment for the 25 days he was held in detention.

At the three-day trial, he was extensively cross-examined about his immigration status and his country of origin. He failed to answer basic questions about Sierra Leone and held multiple Nigerian numbers in his phone. Ultimately, the court awarded €7,500 for the imprisonment, factoring in the plaintiff’s lack of credibility regarding his entitlement to remain in the State. The court also made a differential costs order.

The defendants, being the Commissioner, the Governor of Cloverhill Prison and the Minister for Justice and Equality, appealed, claiming that the plaintiff was entitled to no more than nominal damages for the detention. In particular, the defendants relied on the Lumba case to say that the plaintiff could and would have been lawfully arrested if the warrant was correct, so no damages could apply.

Court of Appeal

In an 82-page judgment, Mr Justice Brian Murray dismissed the appeal and affirmed the decision of the trial judge. The court outlined the development of the tort of unlawful detention in granular detail. In particular, the court noted that the availability of damages for false imprisonment was only refined in 2012 by the Lumba decision. The decision determined that a “but for” test applied in English cases, where a plaintiff would fail to recover compensatory damages where they would have been lawfully detained, but for procedural irregularities. This decision was endorsed in the subsequent English case of Parker v. The Chief Constable of Essex Police [2018] EWCA Civ. 2788.

Further consideration was given to the Australian case of Lewis v. Australian Capital Territory [2020] HCA 26, which did not fully endorse Lumba but still held that a plaintiff was only entitled to nominal damages for the tort if the detention would have been lawful under correct procedures.

In addressing the substance of the defendants’ appeal, the court began by outlining the history and scope of the tort of false imprisonment. The court held that the principles in the Lumba decision were never recognised in Irish law and turned to the question of whether the law should be changed.

Mr Justice Murray held that there was a significant difficulty with the “but for” test because the counterfactual scenario posited by Lumba negated the tortious wrong entirely. The court held that the English courts “formulate a test of causation that assumes that the authorities would have acted lawfully within the context of a claim in which the whole point is that they did not.” The court favourably cited an academic quote which stated that the Lumba decision “turns the tort on its head: the starting presumption in favour of liberty is supplanted by an irrebuttable presumption of legality in favour of government.” In other words, the “but for” test “negates the essence of the cause of action,” the court said.

The court also stated that there was a “striking lack of clarity” regarding the approaches from the Lumba, Parker and Lewis cases to the tort. The court said that these approaches could have the effect of altering the burden of proof although neither the Lumba or Lewis cases fully engaged with this question.

Further, the court held that there were serious constitutional rights in play in the present case, especially the plaintiff’s right to liberty. As such, the starting point was that a plaintiff was entitled to an award of compensatory damages, which is calculated to reflect the loss of liberty and the impact on the victim. An award of nominal damages ignored a central feature of the defendants’ breach, which was the illegality of the detention, and failed to put the plaintiff in the position he would have been if the breach had not occurred.

The court noted that a trial judge may reduce the compensation amount to reflect the fact that a plaintiff was a person “who had through his conduct rendered himself liable to lawful detention in the first place and in the consequence that the event rendering the detention unlawful was purely procedural or technical in nature.”

The court concluded by stating that an award of compensatory damages necessarily included a vindicatory aspect. The compensation did not have to be a significant sum, but it was appropriate to reflect the fact that a plaintiff had their liberty deprived for a period of time.

Conclusion

On the basis of the court’s analysis, the court upheld the High Court decision and dismissed the appeal. The court indicated a provisional view that the plaintiff was entirely entitled to the costs of the appeal, but that the differential costs order for the High Court proceedings should remain in place.