No entitlement to substantial damages where claimant could and would lawfully have been detained under another power

By Laura Dubinsky

Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 marks a significant extension of the no loss/ no substantial damages principle.

The Supreme Court has previously held, in the context of detention under the Immigration Acts, that there is an entitlement only to nominal damages where the authority to detain is flawed by material public law error but detention would have been inevitable even had the error not been committed (Lumba and Mighty [2011] UKSC 12, [2011] 2 WLR 671; Kambadzi [2011] UKSC 23, [2011] 1 WLR 1299). The rationale is that the purpose of damages, other than exemplary damages, is to compensate loss actually suffered. See for example the discussion in Lumba and Mighty at §95 per Lord Dyson, §176 per Lord Hope, § 254 per Lord Kerr; see also Lord Blackburn’s dictum from Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 at 39 ‘that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’.

In Bostridge v Oxleas, the Court of Appeal (the Chancellor; Vos and Christopher Clarke LJJ) upheld the order of the Administrative Court awarding only nominal damages of £1 to a mentally disordered patient who had been unlawfully detained in hospital for 422 days.  The appellant was a schizophrenic who had been detained under s.3 Mental Health Act.  He was made subject to a flawed Community Treatment Order; the NHS then purported to recall him to hospital under s.17E (6) Mental Health Act.  There was no power to hold him. Throughout the appellant’s detention, his readmission to hospital would have been indicated under s.3 Mental Health Act, although this would have required actions by third parties (two medical practitioners and either the patient’s nearest relative or an approved mental health professional).  The Court reasoned that the appellant had suffered no compensatable loss and so was entitled to substantial damages neither at common law nor under Article 5(5) ECHR.

Bostridge v Oxleas represents a double extension of the no loss/ no substantial damages principle: first, to cases in which there existed no power to detain; and second, to cases in which the hypothetical lawful detention would have required actions by third parties. It is the latter extension (third parties) that is particularly problematic. It involves the court in an extended hypothetical exercise involving the possible actions of multiple potential detainers; and has the unattractive consequence that for as long as a person could and would be detained under one power, he can be unlawfully detained under any other power (or without power at all) without entitlement to substantial damages for the detainee nor real sanction for the detainer. The case may revive the debate concerning vindicatory damages (whether there may be some intermediary form of damages to sanction unlawful detention even where no loss has been suffered).  The particular facts (£1 for 422 days) also vividly illustrate Lord Brown and Lord Rodger’s warning in their dissenting judgment in Lumba and Mighty that the award of only nominal damages would devalue the constitutional protection of the tort of false imprisonment.