What price liberty? Damages, DOLS and a cat named Fluffy
29 January 2015
On 7 January 2015 District Judge Mort of the Court of Protection approved a £60,000 settlement agreement reached between Essex County Council and Mr P ( EWCOP 1). For a discussion of the case generally see Rosalind English’s post here.
With a significant backlog of care home cases in the Court of Protection, P’s case runs the risk of becoming something of a precedent on the question of damages for unlawful detention. However, as far as calculation of damages goes, it is light on analysis of principle. This post seeks to explore whether the considerable case law that has developed on damages for false imprisonment in other situations may help illuminate what this type of case is worth.
Background to P’s case
P (91 years old) had been unlawfully deprived of his liberty on the locked unit of a residential care home for a period of between 13 and 17 months (depending on whose side you were on). The facts of the case were in dispute but may be taken to be as follows: P (a dementia sufferer) was living alone save for the company of a cat named Fluffy. On 2 May 2013 two social workers employed by the Council, responding to concern expressed by one of P’s friends, attended P’s home and asked him to come with them, on the initial pretence that they were taking him to a hotel. When he declined, one of the social workers told him that she would call the police. He was persuaded to comply, though he was very reluctant to leave his home and was very distressed. He was wearing his dressing gown and was without trousers or pyjama bottoms. P was then kept on a locked dementia unit of a residential care home until October 2014. For some of that time either an urgent or standard authorisation for deprivation of P’s liberty was in place but otherwise it was conceded that there was no lawful authority for his detention.
After endorsing a plan for P’s return home, the court was left with (amongst other things) the question of what damages P was entitled to receive. The Council and the Official Solicitor (acting on behalf of P) put before the court an agreed settlement package that compromised P’s prospective claim for damages for breach of his Article 5 right (liberty and security) and his Article 8 right (respect for private and family life). Though not explicit from the judgment, one assumes that P also had in mind a common law claim for unlawful imprisonment. The settlement package included damages of £60,000 plus waiver of any fees which might otherwise have been payable for the time spent in the care home (said to amount to £25,000 to £30,000), exclusion of the damages from any means testing for the purposes of calculating his contribution to a home care package and payment of P’s legal costs.
Approval of the settlement in P
DJ Mort, in exercise of the court’s duty to scrutinise settlements reached on behalf of protected parties, had to consider “whether the compromise agreement provides sufficient recompense to [P] for the wrong done to him”. In doing so, he had some trenchant things to say about the actions of the Council which it is worth quoting in full:
66. There is no doubt that P has been failed by ECC. The protection for the individual enshrined in the MCA and the Codes of Practice was ignored by ECC.
67. The conduct of ECC has been totally inadequate and their failings significant.
68. It is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes. Had it not been for the alarm raised by his friend RF he may have been condemned to remain there for the remainder of his days.
69. There can be no doubt that ECC‘s practice was substandard. They failed to recognise the weakness of their own case and the strength of the case against them. They appeared unprepared to countenance any view contrary to their own. They maintained their resolute opposition to P returning to his home until the last possible moment. In my judgment the conduct of ECC has been reprehensible. The very sad and disturbing consequences for P cannot be ignored.”
In deciding whether £60,000 was enough, DJ Mort referred to two cases. The first, London Borough of Hillingdon v Neary  EWHC 3522 (COP) is something of a cause celebre in the field, at the conclusion of which Hillingdon paid out £35,000 in damages for 12 months’ detention. But Neary was itself only a court approval of a settlement agreement and, what’s more, no reasoned judgment in relation to the approval decision exists (any readers who know otherwise, please let us know). As such, the case tells us little by way of principle. The second case, The Local Authority v Mrs D  EWCOP B34 is slightly more useful in that it refers to the Supreme Court decision in R(Faulkner) v Secretary of State for Justice and others  2 WLR 1157 but the guidance to be derived from this decision boils down to the somewhat lofty proposition that:
“The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases.”
Not much help there then. The Mrs D case does however point out that:
In other HRA claims judicial awards have been made for Art 5(4) breaches in similar but not directly comparable cases. For example, where there was culpable delay in providing a number of psychiatric patients access to a MHRT to challenge their compulsory detention under the Mental Health Act, (See KB and others v MHRT  EWHC 193 (Admin)). The maximum sum awarded in that series of claims (the case of JR) was £4,000 in circumstances where the breach of his Art 5 rights had been associated with a loss of liberty for 4 months.
In Mrs D’s case, a settlement in her favour of £15,000 was approved in the context of a period of around 10 months of unlawful detention.
On the basis of these two cases, DJ Mort found (para 77):
Taking these cases into account the level of damages for the unlawful deprivation of an incapacitated person’s liberty is between £3000 and £4000 per month.
This, I would suggest, may be dangerous oversimplification, as can be seen if we look at damages for false imprisonment.
The case law on damages for false imprisonment
In R v Governor of HMP Brockhill ex parte Evans (No 2)  1 QB 1043, the claimant was a prisoner serving a 2 year sentence. She had served around 8 months of her sentence but was then wrongly held for an additional 59 days when she should have been conditionally released. Collins J dismissed her claim but indicated that he would have assessed damages at £2,000. The Court of Appeal allowed the claimant’s appeal and increased the assessment of damages from £2,000 to £5,000 (or around £7,880 at today’s prices). Lord Woolf MR’s judgment sets out the following principles:
- There can be two elements to an award of damages for false imprisonment, the first being compensation for loss of liberty and the second being the damage to reputation, humiliation, shock and injury to feelings resulting from the loss of liberty
- It may be appropriate to award compensation for the second element where someone of good reputation is imprisoned and where none of that imprisonment is justified
- It would not be appropriate to award damages for the second element where someone is lawfully imprisoned, makes the necessary adjustments to serving a sentence and has no reason to think that she is not properly incarcerated
- An award should not be made on the basis of each day of unlawful detention but a global approach should be taken
- A daily, weekly or monthly figure should not be extrapolated from this amount and applied to other cases as no two cases are the same
- The shorter the period of unlawful detention, the larger the ‘pro rata’ rate
- The length of sentence lawfully imposed is significant
In the field of immigration detention, the case of Thompson and Hsu v Commissioner of Police for the Metropolis  QB 498 is considered the ‘starting point’ for the assessment of damages and contains the following guidance:
In a straightforward case of wrongful arrest and imprisonment the starting point is likely to be about £500 for the first hour during which the plaintiff has been deprived of his or her liberty. After the first hour an additional sum is to be awarded, but that sum should be on a reducing scale so as to keep the damages proportionate with those payable in personal injury cases and because the plaintiff is entitled to have a higher rate of compensation for the initial shock of being arrested. As a guideline we consider, for example, that a plaintiff who has been wrongly kept in custody for twenty four hours should for this alone normally be regarded as entitled to an award of about £3,000. For subsequent days the daily rate will be on a progressively reducing scale [para 5]
However, the Court of Appeal was keen to point out that figures of £500 (now ~£830) for the first hour of detention and £3,000 (now ~£4,980) for the first 24 hours were not to be applied automatically in every case, as seen in the following passage:
The figures which we have identified so far are provided to assist the Judge in determining the bracket within which the jury should be invited to place their award. We appreciate, however, that circumstances can vary dramatically from case to case and that these and the subsequent figures which we provide are not intended to be applied in a mechanistic manner [para 7]
In Thompson and Hsu, the Court of Appeal held that aggravated damages were compensatory in nature and that features which could justify such an award included:
humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution
It is clear that a high threshold of culpable conduct must be met before an award of aggravated damages can be made, but the threshold may be met if, for example, there is a lack of due diligence in the case of a particularly vulnerable detainee (as in the case of in R (on the application of B) v SSHD  EWHC 3189 (Admin)).
Based on this (far from exhaustive) survey, I would suggest that the application of a daily/weekly/monthly rate of damages for unlawful detention is not justified on the authorities; indeed is specifically discouraged. Rather, the emphasis should be on the circumstances of the individual case, including the manner in which the initial detention occurred, the effect on the individual, any effect on reputation and the overall period of detention. Importantly, a shorter period of detention will attract a substantially greater pro-rata amount than a lengthy detention i.e. there is no flat rate.
What sort of factors will be of relevance in a care home detention case? Well, they may include: whether this is a new unlawful detention or an unlawful extension to an authorised detention, the level of awareness and distress of the individual concerned and whether the detaining body can be said to have behaved in a “high handed, insulting, malicious or oppressive manner” (which, in a case like P could be strongly arguable).
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