THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT

The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a claimant. It is also a lesson for anyone representing corporate bodies and government departments – the left hand must know what the right hand has done.

THE CASE

The claimant claimed damages for false imprisonment arising out of a curfew requirement. A previous hearing had determined that the threat of criminal sanction and electric monitoring amounted to detention for the tort of false imprisonment. It was brought by way of judicial review but it was accepted it was appropriate to deal with the claim in the Administrative Court.

The hearing was set down for three days. The claimant adduced two witness statements.  The defendant had two witnesses who the claimant did not propose to cross-examine.  The issue of whether the detention was unlawful was a central part of the case. The claimant was represented by counsel (acting pro bono), the defendant was also represented by counsel. The case began and was in its third day when there was a surprising development.

THE THIRD DAY OF THE TRIAL…

 

  1. At 3.40 p.m. on the third day of the hearing, counsel for the claimant informed the court that the claimant had in fact brought proceedings in the county court seeking damages for false imprisonment arising out of the detention of the claimant and, further, that the defendant had conceded as long ago as 29 March 2017 that the detention was unlawful. That matter had not been referred to before by either the claimant or the defendant and, clearly, was a matter potentially relevant to the determination of this claim. I set out the chronology below. The parties were allowed to put in further evidence to explain why neither of them had informed the court of these matters. In the event, the defendant also sought permission to amend her amended grounds of defence and to abandon the contention that the claimant was only entitled to nominal, not substantial, damages. I deal with these matters below.

NOW HOW DID THAT HAPPEN?

Mr Justice Lewis considered the new evidence.

“The New Evidence

    1. On the afternoon of the third day of the hearing, as the claimant’s counsel was about to begin his reply, he informed the court that the claimant had told him that the claimant had brought proceedings for false imprisonment in relation to the period of detention between 16 April 2013 and 29 October 2013 and ending with the grant of bail by the First-tier Tribunal. I was further informed that the defendant had conceded that the detention was unlawful. Those facts had not been mentioned by the claimant, or by the defendant, in any of the pleadings, or in any of the witness statements filed in evidence at that stage. The claimant had not mentioned those facts when he gave oral evidence. Counsel for the claimant and the defendant had not mentioned those facts in their written or oral submissions. I accept that counsel for the claimant were simply unaware of those facts until the claimant mentioned them to his counsel on the third day of the hearing. Counsel for the defendants also told me that counsel for the defendants were unaware of these facts. The facts were potentially highly relevant to the question, amongst others, of whether the claimant would have been placed on a curfew. The case was adjourned to enable the claimant and the defendant’s officials and advisers to explain by witness statement precisely what they knew and when and why they had not informed the court of these facts, and for the parties to make submissions on the effect of the new information on these proceedings. Both parties subsequently sought an extension of time for filing their witness statements.

    2. From the evidence provided, it is clear that the claimant instructed solicitors (not those instructed in the judicial review claim) and they sent a letter on 30 March 2016 referring to a proposed claim for damages for false imprisonment arising out of the detention between 16 April 2013 and 29 October 2013. It was said that the claimant could not be deported because he had been granted refugee status and that status had not been revoked, and also that there was no realistic prospect in any event of his being removed within a reasonable period. The claimant’s solicitors in the judicial review wrote to the defendant’s legal advisers on 3 January 2017, referring to the claim arising out of the detention, noting that the defendant had not mentioned the problem surrounding deportation in their summary grounds, and indicating that it could be relevant to the determination of damages in this claim. The defendant’s solicitors (acting in the detention claim) admitted by letter dated 29 March 2017 that the detention was unlawful. Particulars of claim were received by the defendant on 11 May 2017 and a defence filed on 30 June 2017. The claimant also disclosed the existence of the claim for damages arising out the unlawful detention during the course of a hearing before the First-tier Tribunal on 14 March 2017 (and that fact is referred to in the decision of the Tribunal promulgated on 24 March 2017).

    3. The claimant therefore knew that he was claiming that the detention between 16 April 2013 and 29 October 2013 was unlawful, and that that might be relevant to the damages claim. The claimant knew that when he filed amended grounds of claim on 17 March 217, made a witness statement on 18 May 2017, represented himself in court on 14 June 2017 and when he gave evidence during the hearing on 11 October 2017. He did not mention those facts until the third day of the hearing on 13 October 2017.

    4. In his third witness statement, the claimant says that on 21 February 2017 he had told his lawyers acting in his judicial review claim that he was bringing a claim for unlawful detention and was using other solicitors in that claim. He has exhibited a partial record of that conversation made by the solicitor in which it is recorded that:

“Client advised that he is in the process of a private law claim for detention whilst still a refugee. That is with [another firm] and remains ongoing. Client did not want to provide information and advised that it is irrelevant. Advised that we may be able to link cases if we know what it is about. Client advised that he does not want to merge the two issues and would rather keep them distinct and separate.”

  1. The claimant says that he believed that the county court claim relating to detention was not relevant to the judicial review proceedings about the curfew. He says it was only on the evening of 12 October 2017, when he was reflecting on what had been said during the second day of the hearing, that he realised that the court should be told about the position in relation to detention and he told his barristers about it for the first time on the third day of the hearing. They, quite properly, informed the court of those facts. I find it surprising that the claimant did not refer to these facts in his amended grounds of claim, his witness statement of 18 May 2017 or in his oral evidence to this court.

  2. The Home Office official dealing with the private law claim for damages arising from the detention knew about the judicial review claim. She sought advice from both the solicitor dealing with the judicial review claim and the solicitor dealing with the private law claim. The higher executive officer who approved the summary grounds of defence (which did not refer to the claim for damages alleging that the detention was unlawful) also knew of the private law claim at the time that she approved the summary grounds of defence in the judicial review claim. In her witness statement she says that she “thought that the private law claim was entirely separate from the judicial review claim”.

  3. The solicitor with conduct of the judicial review claim for the defendant was told about the private law claim in December 2016. He received the letter of 3 January 2017 linking the problems over deportation with the claim for damages and he received a request under CPR Part 18 for further information about the basis upon which the curfew condition was imposed as the claimant could not be subject to deportation when he had refugee status. When the amended grounds were received, on what was that lawyer’s last day in that department, he says that he assumed that there was no problem over the deportation. There is no evidence about what information, if any, he gave to the lawyer who took over the conduct of the litigation in March 2017. That lawyer says he “was not consciously aware of the existence of the Claimant’s private claim before 13 October 2017” and when it was mentioned in court on that day it came as a surprise. He does not think he would or should have known of it earlier. It is difficult to assess that claim. I do not know what the lawyer read, and, in particular, I do not know whether he had read the letter of 3 January 2017 from the claimant’s solicitor (he did, intermittently have conduct of the case in January and February 2017 when the other lawyer was absent). I do not know what was in the handover notes.

  4. Counsel for the defendant, in detailed written submissions, reminds me that the defendant has not waived privilege in relation to documents relating to this matter. Counsel submits that I should not draw any adverse inferences because of what is submitted to be “an unfortunate but understandable lack of recognition” of the link between the claim for damages for false imprisonment arising out of the detention and the claim for damages arising out of the curfew imposed on release. I do not draw any adverse inferences from the failure by the defendant (or the claimant for that matter) to mention the fact that there was an issue about the lawfulness of the deportation order or the lawfulness of the detention, or the fact that the defendant had conceded that the detention was unlawful in other legal proceedings. I simply note that it is surprising, to say the least, that no one in the Home Office, or the Government Legal Department, saw the need to mention the problems that had been raised about the deportation order, or the lawfulness of the detention, or the decision to concede that the detention was unlawful (whether or not they fully appreciated the potential relevance of those facts to the judicial review claim). It is surprising that the detailed grounds of defence and at least one of the witness statements sets out a large amount of detail about the facts of this case (including the making of the deportation order and the fact of the detention) but do not refer to these matters.

THE RESULT

  1. Initially the defendant sought to resist the payment of substantial damages and said that nominal damages only should be awarded. That was the stance maintained by the defendant up to and throughout the three days of the hearing in October 2017. The defendant contended that if she had realised that she could not impose a curfew requirement on the claimant under paragraph 2(5) of Schedule 3 to the Act, then she would have requested the First-tier Tribunal to impose a curfew as a condition of bail, if they were minded to release the claimant from detention, and, on the balance of probabilities, the First-tier Tribunal would have done so.

  2. In the event, written submissions made on behalf of the defendant dated 31 October 2017, recognise that a more fundamental legal problem has arisen. The defendant has admitted in the county court proceedings that the detention of the claimant between 16 April 2013 and the 29 October 2013 was unlawful. The defendant recognises that it could be argued that, if the detention was unlawful, then there would be no power to impose a curfew as a matter of law as the power to grant bail, and hence to attach conditions to the grant of bail, only arises if there is a lawful detention. That would be consistent the decision of the Court of Appeal in B (Algeria) v Secretary of State for the Home Department (No. 2) [2016] QB 789 (on appeal to the Supreme Court) and R (Lupepe) v Secretary of State for the Home Department [2017] EWHC 2690 (Admin). In other words, the defendant would have failed to establish that a curfew could be imposed as a matter of law.

  3. Against that background, the defendant applies, in effect to amend her detailed grounds of defence, and to withdraw the argument that nominal damages only should be awarded. In other words, the defendant no longer wishes to argue in this case that the claimant should only be awarded nominal damages on the basis that (1) the claimant could as a matter of law have been subjected to a curfew as a condition of bail and (2) if the defendant had realised that she had no power to impose restrictions under paragraph 2(5) of Schedule 3 to the Act, then she would have requested the First-tier Tribunal to impose a curfew as a condition of bail if they decided to release the claimant and they would have done so. The defendant no longer wishes to argue in this case, therefore, that the claimant could as a matter of law have been subjected to a curfew in October 2013.

  4. In my judgment, the defendant should be granted permission to re-amend her amended detailed grounds of defence, and should be permitted to abandon her argument that the claimant would only have been granted nominal damages in the present case. Even if there were the possibility that the defendant could show some legal basis for the detention between 16 April 2013 and 29 October 2013 (and the defendant has not sought to do so in this case), the fact of the matter is that there is no evidence before this court as to whether the defendant would have detained him. The defendant has never sought to advance a case, or call evidence, before this court that the claimant would have been detained between April and October 2013 in any event. The defendant does not seek to amend her detailed grounds to argue that and does not seek to adduce further evidence. The inevitability is that the defendant would not, therefore, on the evidence before this court, have been able to discharge the burden of showing that, on a balance of probabilities, the claimant would have been detained and so could have been released on bail on condition that he complied with a curfew. In those circumstances, the position now adopted by the defendant is a sensible, realistic one.

  5. In those circumstances, it is not necessary, nor appropriate, for this court to seek to address the original argument as to what would have happened if the tort had not been committed, i.e. would the defendant have requested the imposition of a curfew as a condition of bail and would the First-tier Tribunal have granted it? Those issues no longer arise for determination in this case.”

The judge awarded £4,000 in damages. Aggravated damages were not awarded.