Lumba v Secretary of State for the Home Department [2011] UKSC 12

Foreign prisoners were detained pending deportation under an unpublished, secret policy. The Supreme Court ruled this constituted false imprisonment. However, because they would have been detained anyway under a lawful policy, they were only entitled to nominal, not substantial, damages for the tort.

Facts

The appellants, Mr Lumba and Mr Mighty, were foreign nationals who had completed criminal sentences in the UK and were subject to deportation orders. The Secretary of State for the Home Department had the power to detain them pending deportation. The published policy regarding such detention, based on the principles established in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, created a presumption in favour of temporary admission or release, with detention being an exception. However, between April 2006 and September 2008, the Secretary of State operated a secret, unpublished policy which applied a near-blanket ban on the release of foreign national prisoners and established a presumption in favour of their detention. The appellants were detained for periods under this secret policy.

Issues

The Supreme Court addressed two primary legal issues:

1. Was the detention of the appellants, carried out pursuant to an unpublished policy that was inconsistent with the Secretary of State’s published policy, unlawful and therefore constituted the tort of false imprisonment?
2. If the detention was unlawful, what was the correct approach to assessing damages? Specifically, could the Secretary of State defeat a claim for substantial damages by proving that, even if the lawful published policy had been applied, the appellants would have been detained anyway?

Judgment

The Supreme Court was unanimous in finding the detention unlawful, but split 5-4 on the issue of damages.

Unlawfulness of Detention

The Court held that the Secretary of State’s application of a secret policy that contradicted her published policy was a breach of public law principles of fairness and transparency, rendering the resulting detention unlawful. Lord Dyson, in the leading judgment on this point, stated:

At the heart of this aspect of the appeal is the complaint that the Secretary of State said one thing and did another. She was operating a secret policy which was the opposite of her stated public policy… in my judgment, it is not open to the Secretary of State to act in a way that is inconsistent with a policy that she has published without first giving notice that she is changing the policy or, at the very least, that she is departing from it.

The Court affirmed that an unlawful exercise of a public law power to detain results in the detention being a tort of false imprisonment.

Assessment of Damages

This issue sharply divided the Court.

The Majority View on Damages

The majority (Lord Phillips, Lord Walker, Lord Brown, and Lord Rodger, with Lord Hope contributing to the majority on this specific point) held that although the detention was unlawful, the appellants were only entitled to nominal damages. They applied the principle of causation, ruling that a claimant must prove that the defendant’s tortious act caused them actual loss. The Secretary of State was permitted to adduce evidence to show that, had she not applied the unlawful secret policy, she would have applied a different, lawful policy under which the appellants would have been detained anyway. Therefore, they had not suffered a loss of liberty that they would not otherwise have suffered. Lord Phillips argued:

A claimant in a civil action is entitled to be compensated for the loss that he has suffered as a result of a defendant’s tortious conduct. He is not, as a general rule, entitled to be compensated for a loss that he would have suffered even if the tort had not been committed.

On this basis, the majority concluded that the appellants had suffered no compensatable loss of liberty and awarded nominal damages of £1.

The Dissenting View on Damages

A powerful dissent (Lord Dyson, Lord Collins, Lord Kerr, and Lady Hale) argued that this approach mischaracterised the tort of false imprisonment. They contended that the tort is actionable per se (without proof of damage) and the primary loss is the deprivation of liberty itself, regardless of whether it might have been lawfully removed by other means. The purpose of damages in such cases is not just to compensate for consequential loss, but to vindicate the fundamental right to liberty. Lord Dyson stated:

…the cause of action consists in the deprivation of liberty without lawful justification. The claimant is not required to prove that the detention had a particular consequence, such as the loss of an opportunity to be released… the loss for which the claimant is to be compensated is the loss of his liberty.

The dissenters argued that substantial, albeit not extravagant, damages should be awarded to recognise the gravity of the wrong and uphold the constitutional importance of personal freedom.

Implications

The decision in Lumba has significant implications for both public law and tort law. It strongly affirms the public law principle that public authorities cannot operate under secret policies that are inconsistent with their published ones. However, the majority’s decision on damages was controversial. By a narrow margin, it established that in claims for false imprisonment, the ‘but for’ test of causation applies to the assessment of damages. This allows the state to argue that, even though its actions were unlawful, the claimant would have been detained anyway, thereby reducing damages to a nominal sum. Critics argue this devalues the right to liberty and reduces the deterrent effect on the executive against acting unlawfully, while supporters argue it correctly applies established tortious principles of causation and compensation for actual loss.

Verdict: The appeal was allowed. The detention of both appellants was declared unlawful. Mr Lumba was awarded nominal damages of £1. Mr Mighty’s claim for damages was remitted to the High Court for determination.

Source: Lumba v Secretary of State for the Home Department [2011] UKSC 12