Battery, assault and false imprisonment are all actionable per se. As such, C will in principle be entitled to an award of nominal damages for the fact of the wrongful interference without having to prove any loss.
In the Lumba and Parker cases it was held that the claimants were entitled only to nominal damages: while in both cases the claimants had been unlawfully detained (ie falsely imprisoned), they could and would have been detained lawfully had the defendants been alive to what the law required.
Following completion of their terms of imprisonment, the Cs were detained pending deportation. The Supreme Court held that the power of detention had been exercised by the application of an unpublished policy and that, as a result, the Cs had been unlawfully detained. The Cs however could recover no more than nominal damages. D could have exercised the power to detain lawfully by the application of its published policy. Had the power been so exercised, it was inevitable that the Cs would have been detained and been detained lawfully. As such, they had suffered no loss.
In the early hours one morning, during a drug and alcohol fuelled party at the home of Michael Parker (aka Michael Barrymore), one of the guests (L) was found unconscious and not breathing in the swimming pool. L died in hospital a few hours later. A post mortem revealed that L had suffered severe anal injuries. Following an investigation led by DS Wilson, the police decided to arrest Parker and two other guests on suspicion of L’s murder and rape. It was decided that Parker would be arrested by DC Jenkins, a member of the investigating team. At the time of the planned arrest, DC Jenkins was stuck in traffic on her way to the scene. As a result, PC Cootes, a member of the surveillance team, was instructed to arrest P on suspicion of L’s murder and rape and was told the date on which the alleged offences took place. P was then arrested by PC Cootes but subsequently released without charge. P brought an action for false imprisonment in which claimed damages for very substantial financial losses. D admitted that P’s arrest had been unlawful as PC Cootes had not personally had reasonable grounds for suspecting that P was guilty of the offences. On the trial of a preliminary issue, Stuart-Smith J rejected D’s submission that P was entitled only to nominal damages. Stuart-Smith J held that had C not been arrested by PC Cootes, he would have been arrested by another officer present at the scene but that that officer too would not have had reasonable grounds for suspecting that C would have been guilty of the offences. As such, C would have been unlawfully detained in any event and so was entitled to substantial damages.
The Court of Appeal allowed D’s appeal on the ground that Stuart-Smith J had applied the wrong test. ‘The test . . . is not what would, in fact, have happened had PC Cootes not arrested Mr Parker but what would have happened had it been appreciated what the law required.’ (Sir Brian Leveson P at 104]). Leveson P went on to hold (at [107]) that had it been appreciated what the law required, it was ‘clear that . . . either the arrest would have awaited DC Jenkins or she would have sufficiently briefed PC Cootes (or another officer present at the scene)’.
Sir Brian Leveson P:
‘104. The test . . . is not what would, in fact, have happened had PC Cootes not arrested Mr Parker but what would have happened had it been appreciated what the law required. To Stuart-Smith J this appeared circular: to assume lawfulness was to assume what was sought to be proved. However, the counterfactual scenario envisaged by Lord Dyson JSC and the accompanying majority in Lumba did not require the court to assume the lawfulness of the substantive detention. It required the court to assume the lawfulness of the procedure whereby the detention was effected. Lying behind the decision in Lumba therefore is the principle that although procedural failings are lamentable and render detention unlawful, they do not, of themselves, merit substantial damages.
105. This conclusion depends on the distinction between the underlying substantive requirements and the process which must be undertaken. In relation to Lumba, the substantive requirement was the ability to detain based on the lawful policy; the application of an unlawful policy did not justify substantial damages if the lawful policy would still have led to detention. In this case, Stuart-Smith J held that if PC Cootes had not effected the arrest, another surveillance officer would have done.
106. The same might have been said in Lumba : if the officer who applied the unlawful policy had not done so, absent recognition that the policy was unlawful, another officer would have done the same thing . . .
107. In this case, the substantive requirements (that of compliance with section 24 of PACE ) depended on the facts as found by the judge as to the state of mind of DS Wilson or DC Jenkins. The procedural requirement (the O’Hara obligation that the arresting officer personally has reasonable cause etc) would have been followed had either appreciated what was required. The fact that there was no evidence about what would have happened is not to the point: in my judgment, it is clear that if either had been alert to the O’Hara obligations, either the arrest would have awaited DC Jenkins or she would have sufficiently briefed PC Cootes (or another officer present at the scene).
108. It is thus clear that substantial damages will not be awarded if, had the defendant acted lawfully, the claimant would have been detained in any case, on the basis that no harm had ultimately been caused . . . In the circumstances, in my judgment, assuming that there were reasonable grounds to suspect Mr Parker of committing an offence and a reasonable belief in the necessity of arrest, Stuart-Smith J was wrong to conclude that he remained entitled to substantial, rather than nominal, damages.’
Lumba and Parker were distinguished by the Supreme Court in Hemmati:
The Cs had arrived in the UK illegally and claimed asylum. They were detained pursuant to a power conferred under the Immigration Act 1971. The Supreme Court held that the Cs’ detention had been unlawful as the decision to detain lay outside the scope of any legitimate exercise of the power conferred by the Immigration Act 1971. As the Cs could not have been detained lawfully under the existing law, they were entitled to substantial, and not just nominal, damages.
‘In Lumba, this court considered what would have happened had the Secretary of State applied his published policy . . . In Parker, it was established that, had things been done as they should have been, the claimant could and would have been arrested lawfully. In other words, a claimant will be awarded nominal damages if it is established that the detention could have been effected lawfully under the existing legal and policy framework. Article 5(1) of the ECHR requires any deprivation of liberty to have a legal basis in domestic law, and that law must be sufficiently precise and accessible in order to avoid all risk of arbitrariness . . . Similarly, a person is entitled to know what the law and any policy made under it is, so he or she can make relevant representations in relation to it . . . It can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different.’ (Lord Kitchin JSC at [112]).
There are two ways in which a claimant in an action for battery, assault or false imprisonment may recover damages for distress, which for this purpose includes negative feelings such as ‘sorrow, disappointment, shame, humiliation, anger, annoyance and indignation’ (George v Cannell [2024] UKSC 19 at [91]).
The first is where the distress is the consequence of the infringement of the interests which these torts protect, ie bodily integrity and freedom of movement and will be awarded as basic, or ordinary, damages. The second way is where the court makes an award of aggravated damages (see below).
Note that ‘[m]ental distress damages can only be awarded to a human and not a company because a company is not capable of experiencing mental distress’ (George v Cannell [2024] UKSC 19 at [209]).
In September 1991, C was lawfully arrested for a suspected drink driving offence. The police alleged that C assaulted officers when she refused to be searched before being placed in a cell. C was charged with assault occasioning actual bodily harm in addition to the driving offence. The charge of causing actual boldly harm was subsequently reduced to the lesser offence of of assaulting an officer in the execution of his duty. At the trial some seven months later, C pleaded guilty to the driving offence and was acquitted of the assault charge. C then brought an action against the police, claiming damages for battery, assault, false imprisonment and malicious prosecution. A jury awarded her compensatory damages of £1,500 and exemplary damages of £50,000. The Court of Appeal indicated that it would have awarded £10,000 as basic damages, £10,000 as aggravated damages and £25,000 as exemplary damages. As the total figure was only marginally less than that awarded by the jury, the Court of Appeal dismissed D’s appeal.
Lord Woolf MR, giving the judgment of the Court of Appeal, said (at 515):
‘In a straightforward case of wrongful arrest and imprisonment the starting point [for an award of basic, or ordinary, damages] 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 24 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.’
A recent example, with updated figures, is provided by Alger v Commissioner of Police of the Metropolis [2023] EWHC 1582 (KB) where Cotter J noted that the basic awards set out in Thompson for a ‘straightforward’ case of wrongful arrest and imprisonment updated to the present time now equated to approximately £1,000 for the first hour of unlawful detention and £6,000 for the first 24 hours. Cotter J accordingly awarded the claimant £2,750 for the seven hours during which he was detained (see [107]-[108]).
Aggravated damages may be awarded for battery, assault or false imprisonment where the defendant’s motives or conduct either in committing the tort or afterwards are ‘particularly reprehensible’ (George v Cannell at [209]), such as where he has acted ‘in a high handed, insulting, malicious or oppressive manner’ or otherwise caused the claimant to be humiliated (Thompson at 516).
Claims for false imprisonment may be tried by a jury. In the Thompson case, the Court of Appeal gave guidance on how juries should be directed as to the awarding of aggravated damages.
Lord Woolf MR, giving the judgment of the Court, said (at 516) that ‘where it is appropriate to award aggravated damages the figure is unlikely to be less than a £1,000’ and that ‘we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest’.
Lord Woolf CJ added that an award of aggravated damages may be reduced or eliminated where the claimant’s own improper conduct caused or contributed to the actions of the defendant being complained of.
In Wainwright v Home Office [2001] EWCA Civ 2081 aggravated damages of £1,000, in addition to basic damages of £2,750, were awarded by the Court of Appeal for the battery committed against the son, Alan Wainwright. Note that in the House of Lords [2003] UKHL 53 at [61] Lord Scott said that he thought that the award of aggravated damages was ‘distinctly on the low side’.
C was physically attacked with a glass bottle by D in a hotel room while the couple were on holiday. C brought a claim for assault and battery and the judge awarded her £10,000 in damages, including £5,000 by way of aggravated damages. The CA substituted an award of £4,000 as general damages.
Thomas LJ said (at [23]) that in cases of assault and similar torts ’[i]t is . . . no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case’. He continued (at [24]):
‘Where there is an assault, the victim will be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings may well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant; if so, then the victim must be properly compensated for that, particularly where the injured feelings have been heightened by the motive or spiteful nature of the attack. In our view, damages which provide such compensation should be characterised and awarded therefore as ordinary general damages which they truly are . . . The facts of this case clearly did not in any way approach the wholly exceptional case where an award of aggravated damages might still be appropriate.’
In R (Jollah) v Secretary of State for the Home Department (No 2) [2017] EWHC 2821 (Admin) C was awarded £4,000 as damages for the unlawful curfew to which he had been subject for some two and a half years. The judge declined to award aggravated damages. The judge’s decision on damages was upheld by both the Court of Appeal [2018] EWCA Civ 1260 and the Supreme Court.
Cotter J declined to award aggravated damages. He said (at [106]) that ‘[t]here was nothing out of the ordinary in the circumstances of the arrest. A mistake was made, but otherwise the [claimant] was dealt with calmly and professionally’. Cotter J added that the basic award of damages would provide adequate compensation.
Finally, punitive, or exemplary, damages may be awarded in some cases involving trespass to the person. The purpose of punitive, or exemplary, damages is not to make good the claimant’s loss but, instead, to punish the defendant. By making an example of the defendant, the law seeks to deter the defendant and others from engaging in such wrongful conduct in the future.
Following the House of Lords’ decision in Rookes v Barnard punitive damages are available in three situations.
R was employed as a draughtsman by BOAC in their design office. Following a disagreement with officials, R resigned as a member of the Association of Engineering and Shipbuilding Draughtsmen. Members of the union who worked in the design office resolved to withdraw their labour unless R was removed. The company dismissed R giving him a week’s salary in lieu of notice. R brought an action against the Ds, officials of the Association, for damages for using unlawful means to induce the company to dismiss him and/or for conspiring to have him dismissed by the company by threatening strike action.
Sachs J held that the threats to strike amounted to intimidation which were actionable as a tort. The Court of Appeal allowed Ds’ appeal on the ground that a threat to breach a contract did not fall within the tort of intimidation.
The House of Lords allowed R’s appeal, holding that intimidation was an established tort which comprehended threats of breaches of contract as well as threats of criminal and tortious acts. On the facts, the Ds had committed the tort of intimidation. The House of Lords ordered a new trial as to damages holding that the facts disclosed no basis for the award of punitive damages and possibly none for aggravated damages.
In his speech in Rookes v Barnard, Lord Devlin said that at common law exemplary damages are available in two categories of case:
In addition, Lord Devlin noted that exemplary damages may be provided for by statute.
Famous examples of an award of punitive damages under this head are provided by Wilkes v Wood and Huckle v Money.
A general warrant was issued by Lord Halifax, the Secretary of State, for the apprehension of the printers and publishers of a political newspaper, the North Briton. In executing the warrant D undertook a search of Wilkes’ house. At the trial of Wilkes’ action for trespass, Pratt CJ directed the jury (18-19) that ‘a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.’ The jury awarded damages of £1,000.
A general warrant was issued by Lord Halifax, the Secretary of State, for the apprehension of the printers and publishers of a political newspaper, the North Briton. The defendant was directed to execute the warrant on the claimant, who it was thought worked for one of the printers. C was taken into custody for some six hours during which he was well-treated. At the trial of his action for assault and false imprisonment, the jury awarded C damages of £300. D’s application for a new trial was dismissed by the Court of King’s Bench. The Lord Chief Justice (Sir Charles Pratt, later Lord Camden) said that while an award of £20 damages might have been sufficient as regards the actual injury suffered by C, the jury were right to award exemplary damages and the amount awarded was not excessive.
‘the small injury done to the plaintiff, or the inconsiderableness of his station and rank in life did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial; they saw a magistrate over all the King’s subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the King’s Counsel, and saw the solicitor of the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck the jury on the trial; and I think they have done right in giving exemplary damages. To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject.’ (LCJ at 206-207)
One of the most common examples of awards under this head are those made against the police. In cases of false imprisonment, the Court of Appeal in Thompson (itself a case involving the police) gave the following guidance as to the directions to be given to juries about awarding exemplary damages.
Lord Woolf MR said that as regards exemplary damages, juries should be reminded that:
Lord Woolf MR said (at 517) that an award of exemplary damages was ‘unlikely to be less than £5,000’ and that ‘the conduct must be particularly deserving of condemnation for an award of as much as £25,000 to be justified’. He said that ‘£50,000 should be regarded as the absolute maximum, involving directly officers of at least the rank of superintendent’.
Lord Woolf CJ added (at 517) that, as with aggravated damages, an award of exemplary damages may be reduced or eliminated where the claimant’s own improper conduct caused or contributed to the actions of the defendant being complained of.
As Lord Devlin made clear in Rookes v Barnard, the oppressive action category does not extend to claims against private individuals nor to private corporations. The House of Lords in Rookes v Barnard expressly overruled the decision in Loudon v Ryder to award punitive damages.
C was living in a flat in London. C’s mother claimed that the flat belonged to her. D, a friend of C’s mother, broke into the flat while C was there and forcibly dragged her out. A jury awarded C damages of £1,500 for trespass to land, £1,000 for assault and exemplary damages of £3,000. The Court of Appeal dismissed D’s appeal.
You cannot copy content of this page
