View source for Transcript of Bostridge v Oxleas NHS Foundation Trust (2014) MHLO 42 (CC)

Lee Bostridge (A patient, by his litigation friend, Susan St James) v Oxleas NHS Foundation Trust

Case No: 1UD76887

Central London County Court

4 February 2014

Before: HHJ Hand QC 

Date: 04/02/2014

Hearing dates: 3 & 4 February 2014

Representation

Mr Denis Edwards of counsel (instructed by Campbell-Taylor Solicitors) for the Claimant.

Mr Bradley Martin of counsel (instructed by Clyde & Co LLP ) for the Defendant.

Approved Judgment

HHJ Hand QC:

Introduction

1 This is a claim for damages for false imprisonment and breaches of the European Convention on Human Rights<ref>Via section 8 of the Human Rights Act 1988 ; breaches of both Article 5 and Article 8 are alleged.</ref> by the Claimant in respect of his detention in hospital by the Defendant. Liability is admitted and I am asked to assess quantum of damage. Claims to recover aggravated damages and exemplary damages are no longer pursued and the issue is whether in the circumstances the Claimant can recover anything other than nominal damages. Although this is a claim brought under CPR Part 7 no evidence has been called and the matter has proceeded by reference to agreed facts and submissions as to the relevant law. 

2 At the start of the hearing I asked the parties to produce an agreed statement of facts. What follows mainly comes from paragraph 10 of Mr Bradley Martin's skeleton argument as modified after discussion between Mr Martin and Mr Edwards. I have adapted it rather than simply quoting it verbatim by making some stylistic changes so that it fits more naturally into this judgment.

The Agreed Facts

3 The Claimant, who is now 36 years of age, suffers from schizophrenia and has from time to time been admitted to hospital and detained there pursuant to section 3 of the Mental Health Act 1983 (“MHA”). 

4 At all material times the Defendant, an NHS Trust, has had responsibility for the Claimant's mental health care. On 16 July 2008 the Claimant was admitted to hospital and detained there pursuant to section 3 MHA . 

5 His case was reviewed by the First-tier Tribunal ( Mental Health ) (“the Tribunal”) on 02 April 2009. The Tribunal ordered his discharge but postponed it until 15 April 2009 so a Community Treatment Order (‘CTO’) by which the Claimant could receive treatment in the community, could be put in place. 

6 On 15 April 2009 when what purported to be a CTO had been put in place, as envisaged, the Claimant was duly discharged. The Defendant accepts that this process was fatally flawed; what had been overlooked was that by section 17A(2) MHA 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 . Once the Claimant had been discharged on 15 April 2009 he was no longer a detained patient and, therefore, the CTO was technically unlawful. 

7 The Claimant's condition deteriorated in August 2009 and on or about 19 August 2009 the Defendant (by “the responsible clinician”) purported to recall the Claimant to hospital and thereafter to detain him in hospital. The Defendant admits that it had no lawful authority to detain him, because he was not the subject of a valid CTO and any purported notice of recall pursuant section 17E (6) MHA conferred no authority on the Defendant to detain him. 

8 The Claimant was detained in hospital (subject to six days of leave) from 19 August 2009 until 3 November 2010. The Defendant admits that this amounted to a period of unlawful detention of 442 days for which the Defendant is responsible in law in the tort of false imprisonment and/or that the Defendant acted unlawfully pursuant to section 6 of the Human Rights Act 1998 (“HRA”). 

9 Throughout the period of the Claimant's unlawful detention, he remained ill. His case was reviewed twice by the Tribunal during this period (on 21 January 2010 and 26 May 2010) and on both occasions his condition was found to require his continued detention in hospital. It is common ground that the Claimant was never aware that his detention was unlawful.

10 Nor is there is any evidence that anyone responsible for the Claimant's mental health care was aware of the fact that his detention was unlawful until 3 November 2010; it follows that those responsible for his care acted as if the detention was lawful and in the same way as they would have acted had the detention been lawful.

11 Dr Faith, an independent psychiatric expert instructed, with the court's permission, on behalf of the Defendant reported on 10 October 2013. She concluded that (see D17, para. 2) “There is no evidence between August 2009 and November 2010 that [C] had improved sufficiently to have been considered no longer liable to detention” and that “Had he not been recalled from the invalid CTO , his readmission to hospital, on a section of the Mental Health Act , would have been indicated nonetheless on the basis of his mental state, known vulnerability and the fact that he was refusing medication…” . 

12 Dr Faith also found no evidence that the Claimant had suffered damage during the period of unlawful detention due to being unlawfully detained and that “The problems displayed by [the Claimant] are those of his constitutional disorder unaffected by the consequences of an administrative error” . 

13 Had the Claimant been detained lawfully he would have suffered the same unhappiness and distress.

14 At the scheduled Tribunal hearing on 3 November 2010 the unlawfulness of the Claimant's detention was realised and he was released, albeit that he remained as an informal patient at the hospital and was later that day lawfully admitted and detained pursuant to section 3 MHA . Thereafter he was detained lawfully until his discharge on 13 September 2011. Following periods of voluntary admission, on 18 April 2013 he was again admitted to hospital and detained there pursuant to section 3 MHA . 
The Competing Submissions

15 Mr Edwards drew attention to both the statutory context, namely that of the MHA , and to the nature of the breach, which he characterised in his skeleton argument as “fundamental” and in his oral submissions as “jurisdictional”. He submitted that there was a strict judicial attitude to breaches of the HRA as was obvious from some of the decided cases. In turn this meant that breaches were likely to be matters of substance rather than matters of procedure. 

16 Illustrations of the strict attitude of the courts towards breaches of the MHA were to be found in Re S-C (Mental Patient) [1996] QB 599 and TTM v Hackney LBC [2011] 1 WLR 2873 . He accepted that two cases in the Supreme Court Lumba and Mighty v Secretary of State for the Home Department [2011] UKSC12 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 might be regarded as the latest word on the question as to what sort of damages were recoverable in respect of false imprisonment but he submitted that in neither case had the court confined damages in a case such as the present to the nominal as opposed to the substantial. On the contrary, once properly understood, they kept open the possibility of a significant award such as had been made in the older case of R v Riverside MHT ex p Huzzey [1998] 43 BMLR 167 and more recently Muuse v Secretary of State for the Home Department [2009] EWHC on 186 (QB) and R (NAB) v Secretary of State for the Home Department [2011] EWHC on 191 (Admin), which it should be noted was decided after Lumba and Kambadzi . In particular he relied upon the judgments of Lady Hale in Lumba and Kambadzi . 

17 The important distinction was that in both cases there had been a failure of policy as had been explained by Lady Hale at paragraph 69 to 71 of her judgment in Kambadzi . He relied, in particular on the following part of paragraph 70: 

:“An example is the prohibition on the Mental Health Act 1983, section 11(4)(a) of making an application for compulsory admission to hospital if the patient's nearest relative objects: Re-SC (Mental Patient: Habeas Corpus) [1996] QB 599 CA. In these cases, it is irrelevant the person concerned could have been lawfully detained had the correct procedures been followed.”

18 Upon this and also upon the judgment of Lord Hope in Kambadzi he based his distinction between a failure of policy and a jurisdictional or threshold failure. In the instant case the failure was of the latter kind; it had nothing to do with policy. Therefore, this case did not arise out of a public law challenge to the implementation of policy and in those circumstances, although there was no loss demonstrated by the agreed facts of the case, where there has been a fundamental failure resulting in a total absence of the power to detain substantial damages must follow. He emphasised, that like all trespass, the tort of false imprisonment is actionable per se and, therefore, loss does not need to be proved. In R(B) v Secretary of State for the Home Department [2008] EWHC 3189 the £32,000.00 awarded amounted to £180.00 per day; in Muuse the award amounted to £195.00 per day; in Huzzey damages of £24,000.00 must have been based on an award of about £300.00 per day. He submitted I should make an award within those parameters. This was necessary to mark the conduct of the Defendant, which had deprived the Claimant of his right to the protections afforded by the MHA against unlawful detention. 

19 Mr Martin submitted that none of the authorities, least of all Lumba and Kambadzi , supported an award being made where, as was the case here, no loss had been incurred on the evidence before the court. This is because although false imprisonment is actionable per se the basis of an award of damages in respect of the tort is compensatory and depends upon loss being proved. If there is no loss then damages can be only nominal. 

20 The Claimant's submissions, according to Mr Martin, confused the rejection in both in Lumba and Kambadzi of the argument advanced on behalf of the Secretary of State that no tort could have been committed where the result would have been the same had a proper procedure been followed. He accepted in Lumba that Lord Hope (paragraph 180), Lady Hale (paragraphs 212 to 217) and Lord Walker (paragraph 195) were prepared to award “vindicatory damages” but they were in the minority and in Kambadzi Lady Hale had acknowledged this at paragraph 74 of the judgment. Indeed, paragraph 74 of the judgment and the judgment of Lord Kerr, at paragraphs 88 and 89, supports the proposition that in the tort of false imprisonment damages are compensatory and that if there is no loss then damages can only be nominal. 
Conclusion

21 In my judgment Lumba establishes and Kambadzi acknowledges three principles: 
: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;
:iii) where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal.

22 I accept the submissions of Mr Martin. I do not regard the discussion by Lady Hale at paragraphs 69 to 71 of the judgment in Kambadzi as providing the support, which Mr Edwards claimed, for a distinction between illegality at the threshold and illegality in procedure once the threshold has been crossed. On the contrary, it seems to me that those paragraphs are a restatement of the reasoning in Lumba supporting the first principle set out immediately above at paragraph 21 of this judgment. Indeed Lady Hale expressly rejects any special categorisation of “public law cases” (see paragraph 209) and by that I understand her to be rejecting any distinction between policy or procedural failures and “threshold” failures or, as I would prefer to put it the total absence of authority to detain. In the context of Kambadzi paragraphs 69 to 71 of the judgment reject the attempt by the Secretary of State in relation to liability to draw a distinction between one sort of illegality and another and they clearly establish that every kind of illegality will lead to the conclusion that the detainer has committed the tort of false imprisonment. 

23 After Lumba there is no basis for the 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. This was made clear by Lord Dyson in his discussion of this topic (see paragraphs 90 to 96 (headed “compensatory and nominal damages”) and paragraphs 97 to 101 (headed “vindicatory damages”), Lord Collins (see paragraphs 222 to 227), Lord Phillips (paragraph 335) and Lord Brown (paragraph 361). Lord Rodger agreed with Lord Brown and the latter also said at paragraph 362 that he agreed with Lord Dyson, save as to the “causation” point. Lord Kerr appeared to acknowledge the possibility of vindicatory damages at paragraph 256 although he did not think they could arise in the context of Lumba and regarded the scope for such an award as “very limited indeed” and that: 

:“Such an award could only be justified where the declaration that a claimant's right had been infringed provides insufficiently emphatic recognition of the seriousness of the defendant's default.”

24 My own views on this subject are immaterial. The majority of the Supreme Court have taken the view that where there is no loss “the declaration that a claimant's right has been infringed” (per Lord Kerr at paragraph 256) accompanied by nominal damages is sufficient to mark the breach. I am bound by that and the eloquent exhortations to the contrary by Mr Edwards cannot change the position.

25 In my judgment all of the authorities cited to me by Mr Edwards where significant sums have been awarded can be explained on the basis that in each of them there was a loss suffered by the Claimant. In this case it is accepted that there is no loss. The Claimant would have been detained had his illness been correctly addressed via section 3 , as it should have been on 19 August 2009. Thereafter he would have received precisely the same treatment and he would have been discharged in September 2011. Therefore he is entitled to judgment and to nominal damages. I will discuss with counsel what award I should make; I anticipate it will be £1.00. 
	
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