Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 143

P1251/14

OPINION OF LORD GLENNIE

in Petition of

ADEBAYO AINA

Petitioner

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Party

Respondent:  Gill;  Office of the Advocate General

11 October 2016

Introduction

[1]        In my Opinion issued on 24 November 2015 (reported at 2016 SLT 182) I held that by failing to renew the petitioner’s Certificate of Application (“CoA”) when requested to do so on 3, 13 and 17 October 2014, the Secretary of State for the Home Department was in breach of article 10 of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”) and also of regulation 17(3) of the Immigration (European Economic Area) Regulations 2006 (2006 No. 1003) (“the EEA Regulations”); and that that breach was sufficiently serious to justify, in principle, an award of damages against her.  At a By Order hearing on 2 December 2015 Mr Gill, who appeared on her behalf, agreed that the effect of my decision was properly reflected in an interlocutor (which I then issued) declaring:

“(1)      that in terms of (i) Article 10 of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”) and (ii) regulation 17(3) of the Immigration (European Economic Area) Regulations 2006 (2006 No. 1003) (“the EEA Regulations”), the respondent is under an obligation to issue a Certificate of Application to every applicant for a residence card under said Directive and/or said Regulations immediately upon receipt of his application for a residence card accompanied by the required documents;

(2)        that on a proper construction of Directive 2004/38 and the EEA Regulations the respondent is under an obligation to issue every applicant for a residence card thereunder, whose Certificate of Application is no longer valid or effective through passage of time, upon his request, with one or more duplicate or replacement Certificates of Application which individually or taken together remain valid and effective for the whole of the period until his application for a residence card is lawfully and finally determined, either by the grant of a residence card or by a final unappealable decision to refuse to grant a residence card;

(3)        that the respondent acted in breach of her obligation referred to in (2) above by failing and refusing to issue the petitioner with a duplicate or replacement Certificate of Application when requested by him to do so on 3, 13 and 17 October 2014; and remains in breach of said obligation to date.”

The effect of this, as Mr Gill submitted, was to repel the respondent’s pleas in law 1-4 and 16 and sustain the petitioner’s pleas in law 2 and 3; and (not having done so earlier) I pronounced an interlocutor to that effect at the commencement of this hearing.  In my interlocutor of 2 December 2015 I also ordered the Secretary of State forthwith to issue the petitioner with a duplicate or replacement Certificate of Application – I understand that the petitioner received a renewed CoA some two weeks later, on or about 17 December 2015.  I refused the Secretary of State’s application for leave to reclaim on the basis that I considered it more appropriate for all matters to be dealt with at Outer House level before the matter came to be reviewed in the Inner House. 

[2]        On 20 January 2016, after the petitioner had amended the petition to amplify his claim for damages, I appointed the cause to a debate on the respondent’s pleas to the relevancy of certain parts of that damages claim.  On 31 August 2016, after further amendment and adjustment amplifying the heads of damages claimed in the petition and adding further pleas-in-law for the respondent, I heard that debate.  The delay in bringing that matter to court was due in part to the ongoing amendment process but in part also to a lack of judicial availability.

[3]        At the hearing of the debate the petitioner was again unrepresented.  The Secretary of State was again represented by Mr Gill.  As before, Mr Gill presented his argument under reference to the full and careful Note of Argument which was of considerable assistance both to the petitioner and to the court.

The claim for damages
[4]        In introducing his submissions, Mr Gill handed in a schedule summarising the various grounds of action or heads of damages advanced by the petitioner in the petition as amended.  I did not understand the petitioner to take issue with it.  Under reference to that schedule, the heads of damages claimed in the petition are as follows:

Mr Gill correctly pointed out that there was clearly a degree of overlap between the various heads of claim over and above the overlap between Claims D and G identified in the schedule; but he accepted that was a matter to be resolved at the evidential second hearing if the matter was allowed to proceed to such a hearing.

[5]        I shall deal with the individual heads of claim in the order in which they appear in the schedule.

A.        Loss of employment income
[6]        Claim A is a claim for damages for loss of net earnings during the period from the refusal to renew his CoA until he was again in a position to work after receipt of a renewed CoA.  The claim is calculated on an hourly rate of £8 over a 40 hour week during this period.  The petitioner gives some detail of the kind of employment which he says he could have obtained.  Although the Secretary of State challenges this claim on its merits, Mr Gill accepted (subject to one small point) that this head of claim was relevant and ought to be allowed to proceed to an evidential hearing.

[7]        The small point on which Mr Gill entered a caveat was this, that the petitioner had calculated the sum claimed by reference to a loss of income over a period extending until 31 December 2015, whereas on his own averments in the petition he obtained employment on 23 December 2015.  That may well be a good point, but it is not strictly one of relevancy and, in any event, the matter can be resolved at the evidential hearing.

[8]        I shall accordingly allow this claim to proceed to an evidential hearing.

B.         Payment to HMRC
[9]        This claim is linked to Claim A.  Under this head the petitioner claims £2,155.20, that being the sum which he says that he would have paid in taxes and NIC to HMRC had he not been prevented from working, and which would, therefore, have affected his ultimate pension rights.  Mr Gill submits that this claim is irrelevant.  I agree.  The petitioner cannot maintain in his own name a claim for sums which would, on a certain hypothesis, have been payable to HMRC.  While it is, I suppose, theoretically possible for the petitioner to advance the claim for loss of pension rights arising from his loss of income and consequent reduction in taxes and NIC contributions paid to HMRC, proof of such a claim (if proof were possible) would require actuarial evidence.  The petitioner’s present averments in the petition do not identify any particular sum claimed to have been lost by way of pension entitlement and there is therefore no basis upon which actuarial or indeed any evidence on the matter could properly be allowed.  Any such sum is likely in any event to be infinitesimally small.

[10]      To my mind this claim is irrelevant and should not proceed to an evidential hearing.

C.        “Special damages” for loss of chances of progression in a future employment
[11]      At the hearing the petitioner made it clear that he did not insist on this head of claim.  I need say nothing more about it.

D.        Damages for frustration, anxiety, etc. or “general damages”
[12]      In statement 3.13 the petitioner avers that as a result of the conduct by the Secretary of State in refusing to renew his CoA, and thereby preventing him from working, he has suffered from depression, manifested in low mood and reduced concentration.  In statement 3.17 he goes on to say that his inability to work has interfered with his family life, causing him to suffer frustration and anxiety.  Under this head he claims damages in the sum of £5,000.  He seeks to justify this claim under or by analogy with the line of authority on damages for breach of article 5 ECHR culminating in R (Haney) v Secretary of State for Justice [2015] 1 AC 1344.  In the alternative he seeks damages in the like amount as “general damages”.

[13]      Mr Gill submitted that there was no proper analogy with cases such as Haney.  Under reference to R v Secretary of State ex parte Factortame (No. 7) [2001] 1 WLR 942, he submitted that damages for breach of an EU law right are compensatory, requiring proof of pecuniary loss.  The approach in Haney related to a claim for damages under section 8 of the Human Rights Act 1998 and was irrelevant to a claim for damages for breach of EU law.  Section 8 of the 1998 Act (and article 41 ECHR) conferred on the court power to award just satisfaction.  There was no such equivalent power in respect of the alleged breaches of EU law.  In such a case damages for distress and injury to feelings were available only where the individual’s personal loss of self-esteem was an important and integral part of the wrong for which compensation was awarded: Factortame (No. 7).  That was not the case here.

[14]      Turning to the alternative claim for “general damages”, Mr Gill submitted that this was to be understood as an English term corresponding roughly to solatium in Scots law.  He submitted that damages for injury to feelings or mental distress are not awarded as solatium unless the individual has suffered mental harm amounting to a recognisable psychiatric illness.  He referred in this context to Page v Smith [1996] AC 155, 189, McLoughlin v O’Brian [1983] 1 AC 410, 431 and McEwan & Paton on Damages for Personal Injuries in Scotland at paragraph 9-03.  The petitioner in this case had only submitted two brief letters from his GP and had incorporated them into his petition.  On that basis he did not advance a case that he had suffered some recognisable psychiatric illness and the claim under this head was irrelevant.

[15]      At this stage I am concerned only with the question of relevancy.  So far as concerns the claim for general damages, the short answer to Mr Gill’s argument is that the petitioner does indeed claim to have suffered from a recognisable psychiatric illness.  He claims to have been diagnosed with depression, low mood and reduced concentration and to have been treated with anti-depressants and night sedation.  I understood Mr Gill ultimately to accept that this, if proved, could amount to a recognisable psychiatric illness.  This aspect of the claim is clearly relevant.

[16]      So far as concerns the claim advanced on Haney grounds, Mr Gill pointed out that the petitioner appeared to be latching on to my remarks made at the previous hearing, noted at paragraph [85] of my Opinion of 24 November 2015, raising the question whether there was scope for damages to be awarded for disappointment, frustration and anxiety by analogy with the approach in Human Rights cases.  That may be so; but the argument is none the worse for that.  I accept immediately that there are material differences between the present case and that considered by the Supreme Court in Haney.  Under this head, the claim is for breach of EU law and/or of UK regulations designed to give effect thereto and does not engage possible breaches of ECHR.  Accordingly, article 41 ECHR does not have any direct application.  But that is not necessarily the end of the argument.  Section 8 of the Human Rights Act 1998 empowers the court to award damages whenever it finds that an act of a public authority (which would include the Secretary of State) is unlawful, regardless of whether that unlawfulness arises from breach of Convention rights or some other rights under the EU or domestic law.  Further, it is not entirely clear as yet whether the approach which Mr Gill sought to derive from Factortame (No. 7), to the effect that damages for breach of EU law can only be awarded as compensation for pecuniary loss – and I express no view as to whether that principle is correctly identified as flowing from that case – would apply today in light of the EU’s accession to the ECHR and its own Charter of Fundamental Rights.  Again, I express no view on this. 

[17]      In any event, even if Mr Gill is correct in submitting that Factortame (No. 7) limits damages for distress and injury to feelings to cases where the individual’s personal loss of self-esteem is an important and integral part of the wrong for which compensation was awarded, I am by no means convinced that the petitioner would be unable to bring himself within that categorisation.  It is, to my mind, arguable that, in a case where a breach of EU or domestic law causes pecuniary loss to a vulnerable individual and thereby deprives him of the means of supporting himself and his family over a significant period, the distress inevitably suffered and the concomitant loss of self-esteem should be regarded as an important and integral part of the wrong caused by the unlawful act and of the damage suffered as a result.

[18]      For these reasons I will allow this claim to proceed to a second hearing.  I should add that, as appears from paragraphs [30]-[32] below, I am prepared to allow the alternative Claim G to proceed, based upon an interference with the right to private and family life under article 8 ECHR.  In those circumstances it would unhelpfully and unnecessarily constrain the arguments if I were to refuse to allow this Claim D to proceed, since it raises similar and overlapping points of principle.

E.         Aggravated damages
[19]      In statement 3.18 of the petition the petitioner articulates a claim for aggravated damages of £10,000.  He says, in summary, that the conduct of the Secretary of State in dealing with his claim for renewal of the CoA was wanton, deliberate and clearly unjustified.  He relies upon the decision of Lang J in R (Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin).  That case concerned the failure of the Secretary of State to issue Mr Santos with a residence card and failing thereafter to deal properly with his applications as a result of which he was unlawfully detained for a period of about 5 months.  Lang J awarded damages against the Secretary of State for the false imprisonment under the heads of “general damages” (£40,000), “special damages” (£6,578), “aggravated damages” (£10,000) and “exemplary damages” (£20,000).  So far as concerned the claim for aggravated damages, under reference to the judgment of Lord Woolf MR in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, she said that such damages were awarded “to compensate for additional humiliation and injury to dignity suffered which mean that a basic award [of damages] is not sufficient compensation”.

[20]      The attack to the relevancy of the claim is advanced on the basis that an award of aggravated damages is not a remedy recognised by Scots law.  Mr Gill cited remarks made by Lord Hope in Watkins v Secretary of State for the Home Department [2006] 2 AC 395 at paragraphs 30-31 for the proposition that it has long been settled in Scotland that the law of delict was concerned with compensation for loss and it was not the function of the law to exact anything more, “and certainly not anything by way of punishment”.  He quoted Lord Woolf MR in Thompson at 516G as explicitly recognising that aggravated damages will in fact contain a penal element so far as the defendant is concerned.

[21]      I accept, of course, that damages are awarded in Scotland as compensation and not by way of punishment.  But I do not accept that aggravated damages are either intended as punishment or operate such.  What Lord Woolf MR says in the paragraph at page 516G needs to be read in the context of that paragraph (paragraph (11)) and paragraph (8) just before:

“(8)      … the nature of aggravated damages should be explained to the jury.  Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injuries suffered if the award were restricted to a basic award.  Aggravating features can include 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… Aggravating features can also include the way the litigation and trial are conducted.  …

(11)      It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered.  It should also be explained that if aggravated damages are awarded such damages, though compensatory [and] not intended as a punishment, will in fact contain a penal element so far as the defendant is concerned.”

Basic and aggravated damages together amount to fair compensation and no more than that.  From that point of view, aggravated damages go no further than providing a heightened measure of recovery for the injuries suffered.  They remain compensatory, but the compensation may include compensation for humiliation, insult, etc., resulting from the defender’s high-handed conduct.  Such damages are penal from the point of view of the defendant only in the sense that, but for his conduct justifying an award of aggravated damages, he would not be required to compensate for such things.  They do not infringe the rule that damages are compensatory.

[22]      I am not persuaded, therefore, that an award of aggravated damages is unavailable in Scots law.

[23]      Mr Gill submitted that the facts in the Santos case were much more extreme than those alleged in the present case.  That may well be correct.  But that does not mean that aggravated damages cannot be recovered in this case.  That will be a matter for proof.

[24]      I shall allow this Claim E to proceed to a second evidential hearing.

F.         Damages for misfeasance in public office
[25]      In statements 3.15 and 3.16 of the petition the petitioner alleges, in summary, that the petitioner acted deliberately and unlawfully in refusing to renew the CoA and in continuing to seek his removal from the UK, thereby depriving him of the ability to work, in full knowledge that she had no power in law to act in this way.  He claims that this amounts to misfeasance in public office.

[26]      Mr Gill submits that this claim is wholly irrelevant.  Under reference to Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1 he submits that the essence of this delict is that a public officer has acted with targeted malice and/or has acted in the knowledge that he had no power to do the act complained of or recklessly as to whether he had that power or not.  It requires something more than negligence or inadvertence.  Its core concept is abuse of power, involving dishonesty, bad faith or improper purpose.  Those are all subjective states of mind.  He says that the Secretary of State had no personal involvement in dealing with the application and the petitioner does not identify any other public officer who committed the wrong for whose conduct the Secretary of State might be liable.  That alone made it impossible for the petitioner to establish the necessary subjective state of mind.

[27]      I accept that as a fair paraphrase of the test for present purposes.  However, it does not seem to me that the petitioner has at this stage to identify a particular individual who had the relevant state of mind sufficient to justify recovery under this head.  He obviously cannot do that.  What he does, however, is point to the internal communications in the relevant section or department dealing with this matter.  I was taken through the relevant entries.  I do not think it would be helpful in this Opinion to recite the sequence of events and communications in any detail.  I heard Mr Gill in explanation of what was going on.  It seems to me that the internal communications relied upon by the petitioner, set against the respondent’s own policy and viewed in the context of the stages which the proceedings before the Tribunals had reached at any particular time, do raise questions as to the propriety of the way in which his application was dealt with which require to be answered.  I have not formed a view as to whether the petitioner’s case is a sound one, but it requires to be heard.  There may well be good answers to the allegations he makes, but this will have to be the subject of evidence.

[28]      Mr Gill points to my remark in paragraph [77] of my earlier Opinion where I said that I could not judge whether the infringement by the respondent was intentional or not.  He submits that that is the short answer to this claim.  It is not.  What I was saying was that I could not form a view at that stage.  The reason for that was that I had not heard evidence.  I have still not heard evidence.

[29]      I shall allow this claim to proceed to an evidential hearing.

F.         Damages for frustration, anxiety etc. or “general damages” (for interference with the right to private and family life contrary to article 8 ECHR)
[30]      As noted above, this is an alternative claim to Claim D.  Mr Gill submits that the petitioner’s article 8 rights are not engaged.  The effect of the refusal to issue a renewed CoA was that he was unable to work.  Article 8 does not embrace a general right to work.  An interference with the right to work cannot, therefore, of itself amount to a breach of article 8.  Article 8 could only be engaged if the refusal to allow the petitioner to work affected his ability to enjoy his family life.  That was not this case.

[31]      I do not accept this argument.  I am not here concerned with whether article 8 confers a right to work.  I accept that it probably does not.  In the present case, however, the right to work is conferred by EU law.  It is made practical by the grant of a CoA pending consideration of the application for a residence card.  The refusal to grant or renew the CoA deprived him of that right.  What is of interest here is the consequence of that action.  The petitioner specifically avers that his inability to work has interfered with his family life.  There is evidence to the effect that his wife has been placed under considerable strain as a result, combining studies with the need to earn to feed the family (including their child).  That, of course, is only at the level of averment, but if it is proved that that is the case that seems to me quite capable of engaging the petitioner’s article 8 rights.  The denial of his right to work, which he has as a matter of EU and domestic law, will have had a direct and plainly foreseeable effect on his family life.

[32]      I shall allow this claim to proceed to an evidential hearing.

Disposal
[33]      For the reasons set out above, I shall sustain the respondent’s pleas in law 10 and 12 and refuse to admit Claims B and C to probation.  In all other respects I shall appoint the petition and answers to a second (evidential) hearing, leaving all remaining pleas outstanding.  I shall appoint the case to come out By Order for consideration of the likely length of that hearing and the steps that need to be taken in advance of it.

[34]      I shall reserve all questions of expenses.