Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 196
A603/10	OPINION OF LORD DOHERTY in the cause NEMAH SHEHADEH Pursuer; against LORD WALLACE OF TANKERNESS QC, THE ADVOCATE GENERAL FOR SCOTLAND Defender: ________________

Pursuer: A.R.Gibson; Drummond Miller LLP, Solicitors

Defender: Lindsay QC; The Office of the Solicitor to the Advocate General for Scotland

21 December 2012

Introduction

[1] In this ordinary action the pursuer sues the defender as representing the interests of the Secretary of State for the Home Department in Scotland. She seeks damages for wrongful detention. She avers that she is a stateless person of Palestinian origin who entered the United Kingdom in 2002 "using a properly issued travel document for Palestinians from the Jordanian Authorities". She had a visitor's visa, but became an overstayer. In 2005 she was detained attempting to use a false French passport to leave the United Kingdom. On 4 November 2005 she was convicted at Hillingdon Magistrates Court of using a false instrument. She was sentenced to four months imprisonment and her deportation was recommended. On 26 February 2006 she claimed asylum. Her application was refused by letter dated 24 May 2007. Her appeal against that refusal was dismissed on 14 August 2007. Her appeal rights were exhausted on 6 December 2007. Meanwhile, she had been detained by immigration officers on 10 December 2006 for the purposes of deportation. On 19 January 2008 the Secretary of State removed her to Jordan but the Jordanian authorities refused to accept her. On her return to the United Kingdom she was again detained by the Secretary of State. She continued to be detained until 27 August 2009 when she was granted bail. She avers that her detention between 26 January 2008 and the date of her release on bail was unlawful. Shortly put, the grounds of illegality are averred to be that her detention during that period was in breach of the Hardial Singh principles; that it violated her article 5 ECHR rights; and that the defender and her officials "acted contrary to the Human Rights Act 1998, section 6 as a result of the operation of a policy of detention that was inconsistent with her published policy; was unlawful; contained an all but irrefutable presumption in favour of detention and failed to give consideration to the pursuer's circumstances".

[2] The matter came before me for a Procedure Roll Hearing. At that hearing counsel for the defender submitted that the defender's preliminary pleas to the competency of the action, and to the relevancy of the pursuer's averments, should be sustained, and that the action should be dismissed. Counsel for the pursuer sought a proof before answer. He also submitted that certain of the defender's averments were irrelevant and lacking in specification and should not be admitted to probation. After I had taken the case to avizandum the decision of the Supreme Court in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 was issued, and rule of court 58.12 came into force. The case was put out by order and I heard further argument.

[3] It was common ground that the relevant statutory power to detain pending deportation is contained in Schedule 3 to the Immigration Act 1971 (as amended). Paragraph 2 provides:

".....

(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)...."

Parties were also at one that the exercise of the power to detain by the Secretary of State is subject to the well established principles identified by Woolf J in R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704 at 706:

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."

The Hardial Singh principles were approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and were subsequently distilled by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 into four propositions:

"i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

(See also R (Lumba)) v Secretary of State for the Home Department [2011] 2 WLR 671 per Lord Dyson SCJ at paragraph 22, and R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 per Lord Brown of Eaton-under-Heywood SCJ at paragraph 93).

The parties' contentions

[4] I do not attempt to set out in full the all the arguments which were advanced. Each party lodged notes of argument. Not all of the points raised in these were insisted upon. What follows is an outline of the main submissions which were made.

Counsel for the defender's submissions
Competency

[5] The principal attack was to the competency of the action. The essence of the action - what it was truly about - was an attack on the lawfulness of the Secretary of State's decisions to exercise her power to detain the pursuer pending her deportation. That was the central issue. It could not be described as a collateral or ancillary issue in an action for damages. It was the very heart of the case. Unless the pursuer established that those decisions were unlawful she would have no right to damages. Review of the lawfulness of those decisions had to be by application to the supervisory jurisdiction. Reliance was placed upon McDonald v Secretary of State for Scotland 1996 S.C. 113, per Lord Clyde at p.116; Sidey Ltd Clackmannanshire Council 2010 SLT 607; Docherty v Scottish Ministers 2012 SC 150, per Lord President Hamilton at paragraphs 19-24; Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57, per Lord Hope at paragraphs 14-21. Here, like McDonald but unlike Ruddy, the claim was not in essence one of damages. Prior to any right to claim damages arising the unlawfulness of the detention had to be established. Whether the Secretary of State had acted unlawfully was truly what the action was about. It was true that, as in Ruddy, the pursuer here was not asking for any decision of the Secretary of State to be reduced and that her case was based on allegations of completed acts. However, unlike in Ruddy, the decisions to detain did need to be reviewed if they were to be found to have been unlawful. There was a need to review them to provide a basis for the damages claim. The defender's second plea-in-law (to the competency of the action) should be sustained and the action should be dismissed.

Relevancy

[6] The attack on the relevancy of the pursuer's averments was two-fold. The first submission was that the pursuer's averments were insufficient to support her case that the detention was unlawful as from 26 January 2008 (Article XIII of Condescendence). In this regard Mr Lindsay made clear that the main point was that it was suggested that the pursuer's averment (in Article IX of Condescendence) "On 4^th July 2008 the Jordanian Authorities confirmed the pursuer was not a citizen of their country." was inconsistent with the averments in Article XIII of Condescendence. It was suggested that, taking the pursuer's pleadings pro veritate, they were not habile to prove that during the relevant period detention was unlawful. (A number of criticisms of the specification provided in certain parts of the pleadings were also advanced but it was not suggested that any of these matters were critical to the relevancy of the pursuer's case, nor was there any motion that those averments should not be admitted to probation). The second submission was that her averments relating her loss and to quantum of damages were inconsistent, and, accordingly, irrelevant. Her case was that she was unlawfully detained between 26 January 2008 and 27 August 2009, yet in Article XX of Condescendence she claimed damages based on loss of liberty from 10 December 2006 until 27 August 2009.

R.C. 58.12

[7] The pursuer had not moved the court to appoint the action to proceed as a petition for judicial review in terms of R.C. 58.12. In the event of the court being persuaded that the action as laid was incompetent it should not be transferred in terms of that rule because the defender's relevancy plea was also well founded. Both the competency and the relevancy pleas should be sustained and the action should be dismissed.

Counsel for the pursuer's submissions

Competency

[8] The essence of the case was that it was an action for damages. The pursuer was asserting her right to damages for the unlawful deprivation of her liberty which had occurred through the breaches of duty of the Secretary of State and her officials. She was also seeking just satisfaction for breach of her article 5 ECHR rights. The case was similar to the actions brought in Docherty and Ruddy. The pursuer was not seeking an exercise of the court's supervisory jurisdiction. She was not asking for the review or setting aside of any decision of the Secretary of State or her officials. She was not asking the court to control their actions. Her case related to completed acts or failures to act and to decisions which were now spent. She was not seeking to have them corrected in order to provide a foundation for her claim - she had no need to do so (see Ruddy, per Lord Hope at paragraph 15).

Relevancy

[9] The pursuer's case was that by, at earliest, 26 January 2008 the Secretary of State knew or ought to have known that the pursuer was not a Jordanian national, and that it would not be possible to return her to Jordan, or to the Palestinian authorities, within a reasonable time: and that accordingly in the whole circumstances averred her detention as from that date was wrongful. She was entitled to claim damages for her wrongful detention and as just satisfaction for the resulting breach of her article 5 ECHR rights. The averment in Article IX of Condescendence did not stand alone. It was not inconsistent with the pursuer's case. It was simply the date on which there had been formal confirmation of the Jordanian authorities' position. There were other averments which pointed to the Secretary of State and her officials having good grounds for concluding by 26 January 2008 that the Pursuer was not a Jordanian national and could not be returned to either Jordan or the West Bank within a reasonable time. It could not be said that the action must necessarily fail even if all the pursuer's averments are established (Jamieson v Jamieson 1952 S.C. (HL) 44 per Lord Normand at p. 50).

[10] Mr Gibson accepted that the criticism of the averments in Article XX of Condescendence was well founded. The relevant period was indeed 26 January 2008 to 27 August 2009. In the event that the defender's other submissions did not find favour with the court Mr Gibson indicated that he would seek leave to amend to remedy this defect. He suggested that the case could be put out By Order to enable him to make the necessary motion.

R.C. 58.12

[11] In the event of the court not being persuaded that the essence of the claim was simply one for damages, and if it considered that an application to the supervisory jurisdiction was necessary, the court could, ex proprio motu, appoint the case to proceed as a petition for judicial review (R.C 58.12(1)(a), 58.12(2)(b)).

Discussion

Competency

[12] In McDonald v Secretary of State for Scotland the question which had to be answered was whether the case was an ordinary action of reparation or if it involved the supervisory jurisdiction of the Court of Session. The pursuer averred that the standing orders relied upon by the Secretary of State as authorising searches of the type in question were invalid, and that the searches were accordingly unlawful. Lord Clyde opined at p.116I - 117A:

"(T)he question falls to be answered essentially by identifying the issue which is raised in the case. The form of action and the remedies sought may be of assistance towards solving the problem but the final answer is to be found in a proper understanding of what the action is truly about."

He concluded at p.118 C-D:

"The legal proposition here seems to be that the pursuer is entitled to reparation because the searches were unlawfully ordered by the Secretary of State. That directly puts in issue the validity of the standing orders and that seems to me to be what this case is truly about."

It is important to observe that the standing orders at issue were ex facie valid and provided authority for the searches. The pursuer challenged their validity. Those were the circumstances in which the court concluded that that was what the action was truly about.

[13] Lord Clyde's analysis in McDonald was reiterated and developed in Clyde and Edwards, Judicial Review. In paragraph 8.14 the authors observed:

" A problem may be thought to arise where all that is sought is an award of damages in an action against a public authority involving its ultra vires acts. Notwithstanding the exclusivity of the judicial review procedure, is it competent to proceed by ordinary action to claim damages in such a case even though the substance of the matter could competently fall under the supervisory jurisdiction? It might be argued that the issue which is an essential ingredient for such a claim of damages, namely the legality of the act or omission by the public authority, is a matter to be determined by the supervisory jurisdiction. Rule of Court 58.4 expressly mentions damages as being among the remedies available in petitions for judicial review. So it might be suggested that all claims of damages against a public authority resting on their ultra vires acts must be made in a petition for judicial review.

It is thought, however, that the Rule of Court has no such intention. The power given in 58.4 is simply for the (sic) convenience and economy where there is another principal remedy sought and an award of damages is an appropriate ancillary remedy. Even if the claim arises from an acting in excess of power which has to be established as part of the ingredients of the claim for damages, it is not appropriate to proceed by way of judicial review if the essence of the action is one of a claim for damages.⁶³ What is being exercised in such a case is the ordinary jurisdiction of the court to give a remedy by way of damages for the consequences of a wrongful act.⁶⁴ In substance the supervisory jurisdiction seeks to control the actings of public bodies. It is not primarily directed at providing compensatory remedies for their illegal behaviour, even though damages can incidentally be awarded. (emphasis added).

⁶³ See, for example, Tait v Central Radio Taxis (Tollcross) Ltd, 1989 SLT 217

⁶⁴ The case of Gray v Smart (1892) 19 R. 692, where the pursuer sought damages for a breach of the statutory procedure for a sale under warrant as well as a reduction of the sale which had already taken place should probably be regarded as an ordinary action, not a case of judicial review."

[14] In Docherty the First Division followed Lord Clyde's approach in McDonald (and also made specific reference, with apparent approval, to paragraphs 8.14 and 8.15 of Clyde and Edwards) (see paragraph [22]). Lord President Hamilton, delivering the Opinion of the Court, commented (at paragraph [20]) on dicta contained in the decision of an Extra Division in Ruddy (2011 S.C. 527), suggesting they were obiter, were likely to be of limited application, and ought not to be understood as involving the proposition that any claim against a public authority alleging an infringement of a Convention right must be brought by judicial review. The proceedings in Docherty were truly about whether the appellants' rights under article 3 had been infringed by the custodial arrangements the Scottish Ministers had made for them, and whether the appellants should by way of just satisfaction be awarded damages. Such proceedings could be brought by action (paragraph [23]).

[15] The judgment of the Supreme Court in Ruddy endorsed the reasoning in Docherty and provided further guidance. At paragraph [15] Lord Hope opined:

"15. The fallacy which undermines the Extra Division's whole approach to this issue, however, lies in its assumption that the appellant is seeking an exercise of the court's supervisory jurisdiction. That is not so. He is not asking for the review or setting aside of any decision of the Chief Constable or the Lord Advocate. He is not asking the court to control their actions in that way at all. His case in regard to both craves is based on averments of things done or omitted to be done and actions that were taken or not taken. The allegations are of completed acts or failures to act. He is not seeking to have them corrected in order to provide a foundation for his claim, nor does he need to do so. What he seeks is just satisfaction for the fact that, on his averments, his article 3 Convention rights have been breached. The essence of his claim is simply one of damages."

[16] Mr Gibson's submission is that these observations can be applied mutatis mutandis in the present case. Mr Lindsay accepts that most of them can. He contends that, because here the lawfulness of the detention is challenged, the court will have to review the decisions to detain and to continue to detain. Review of those decisions will be necessary for the pursuer to establish a foundation for her claim.

[17] In paragraphs [16] and [17] Lord Hope explained that the Extra Division's error in Ruddy was based in part on a failure to appreciate that the law had developed since Cocks v Thanet [1983] 2 AC 286 was decided. The fact that a claim based on a private law right had a public law dimension did not necessarily mean that it could not be pursued by private action. He cited D v Home Office [2006] 1 WLR 1003 as an example of a case where, in a private law action, damages were claimed for false imprisonment in breach of the claimants' Convention rights.

[18] Lord Hope continued (at paragraph [18]):

"English authority as to practice in this field must be approached with caution, as the distinction between public and private law has never been regarded as determining the scope of the supervisory jurisdiction of the Court of Session. But the position that has now been reached in England is not difficult to apply in the Scottish context."

I bear in mind the need for caution when looking to English authorities as to practice in this field, but I find it to be not without interest that a number of the facts and issues which arose in D v Home Office resemble those in the present case. The claimants were detained by immigration officers exercising powers under paragraph 16 of Schedule 2 to the Immigration Act 1971. They claimed the immigration officers had acted outwith their powers and that they were unlawfully detained. They brought proceedings in the County Court seeking a declaration that the Home Office had acted incompatibly with several of the claimants' Convention rights (including their article 5 rights) and damages for wrongful imprisonment. The Home Office argued that the appropriate remedy was by way of judicial review. The court held that there was nothing peculiar about a private individual bringing a private claim for damages against an executive official who had unlawfully infringed that individual's private law rights, and that the action had been properly brought in the County Court.

[19] Initially I was attracted to the defender's submissions on competency. On further reflection, and not without a degree of reluctance, I have come to the view that the competency plea is not well founded.

[20] My reluctance is due to my belief that the issue whether the pursuer's detention was lawful or unlawful would be capable of being determined more expeditiously and efficiently in judicial review proceedings than in an ordinary action. I have in mind that cases similar to the present case have proceeded by way of judicial review (eg Petition of Rasul Nabi for Judicial Review [2012] CSOH 6) and the issue of the legality of detention has been determined at a First Hearing. If the present case proceeds as an ordinary action determination of that issue may be less expeditious, more cumbersome, and more expensive. For these reasons, had parties been agreed that the court should exercise its power under R.C. 58.12 to appoint the cause to proceed as a petition for judicial review I would have had no hesitation in acceding to that request. Similarly, had the cause been brought as a petition for judicial review without objection, I would have allowed it to proceed. In neither case would I would have raised the competency issue ex proprio motu. I recognise, of course, that because the dispute concerns completed acts and spent decisions the need for expedition is less pressing than in cases where administrative decisions continue to have operative effect.

[21] However, the question before the court is not whether proceeding by way of ordinary action is the more convenient, more expeditious, and more cost effective way of determining the dispute. The question is whether it is competent. I am persuaded that it is.

[22] I agree with Mr Gibson that on a proper analysis the claim is in essence one for damages. That is what the action is truly about. Proving the unlawfulness of the detention is a necessary ingredient of the claim, but it does not involve or require an application to the supervisory jurisdiction. Proof of its unlawfulness is capable of being established without judicial review. The claim is readily distinguishable from the claim in McDonald: there the claim depended upon establishing the invalidity of standing orders which were ex facie valid. Applying the guidance provided by Ruddy, the pursuer is not asking for the review or setting aside of any decisions of the Secretary of State. She is not asking the court to control her actions in that way at all. The allegations relate to completed acts. She is not seeking to have them corrected in order to provide a foundation for her claim, nor, in my opinion, does she need to do so. What she seeks, on her averments, is damages for wrongful detention and just satisfaction for breach of her article 5 rights. While I do not regard D v Home Office as providing any guidance as to the relative spheres of ordinary actions and the supervisory jurisdiction of the Court of Session, I derive some comfort from the fact that in like circumstances in England the claimants were not required to proceed by way of judicial review.

[23] It follows that the defender's plea to the competency of the action should be repelled.

Relevancy

[24] I feel able to deal with the attack on relevancy quite briefly.

[25] I am not persuaded by Mr Lindsay's relevancy criticisms relating to the averments on the merits. I agree with Mr Gibson on this issue. Read fairly, and in the context of her averments as a whole, I do not consider that the pursuer's averments can be said to be so inconsistent as to be irrelevant. Nor am I satisfied she must necessarily fail even if she establishes all her averments (Jamieson v Jamieson). The averments appear to me to be habile for proof before answer.

[26] In relation to the criticisms of the averments in Article XX Mr Gibson accepted that he would require to amend. It seems plain that the offending averment is a relic of a time when a more extensive case had been pled against the defender, and that it was not dealt with as it ought to have been when the pleadings were revised. The defect is likely to be readily curable.

R.C. 58.12

[27] Had I been persuaded that the competency plea was well founded, and that that was the only reason for dismissal, I would not have sustained the plea. I would have exercised the power in R.C 58.12 and appointed the cause to proceed as a petition for judicial review. I would not have permitted the choice of the wrong procedure to have thwarted an otherwise relevant claim.

Criticisms of the defender's pleadings

[28] For the sake of completeness I should record that, for his part, Mr Gibson suggested that two of the defender's averments were irrelevant or lacking in specification and ought not to be admitted to probation (the final two sentences of Answer 9, and the final sentence of Answer 13). Each related to relatively peripheral matters. Neither criticism appeared to me to be well founded.

Decision and further procedure

[29] I shall pronounce no interlocutor at this stage other than to put the case out By Order. At the By Order I propose to give effect to my decision on competency by repelling the defender's second plea-in-law. The pursuer will also have the opportunity to seek leave to amend to correct the averment anent damages. Standing my decision on relevancy, I envisage allowing a proof before answer. However, this is a case where there may be advantages in utilising the provisions of R.C. 36.1 to order that proof on liability or any other specified issue be heard separately from the proof on any other issue. Parties should consider the terms of the rule and should be prepared to address the matter at the By Order. The case also appears to me to be one where it ought to be possible to agree a good deal of evidence, with resultant focussing of the contentious issues, avoidance of unnecessary inconvenience to witnesses, and saving of time and expense. Every effort should be made to achieve those aims.