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DAMAGES CLAIMS AGAINST PUBLIC AUTHORITIES

INTENTIONAL TORTS

Introduction

1.A claimant may only recover damages in an application for judicial review if he would have been awarded damages if the claim has been made in an ordinary private law action1.   English law does not provide a remedy in damages for breach of a public law right2.  Accordingly, a claim for damages against a public authority, whether brought by way of an application for judicial review or by private law action, must identify an infringement of a private law right.  This papers primarily considers obtaining compensation from public authorities by way of tortious claims for false imprisonment, assault or battery, malicious prosecution or malicious process and touches on other intentional torts, including the statutory right to damages provided for by section 3(1) of the Protection from Harassment Act 1997 and claims to the Home Office pursuant to section 133 Criminal Justice Act 1988.  Claims for misfeasance in a public office are considered separately in Duncan Fairgrieve’s paper.  Damages claims in negligence, breach of statutory duty, trespass to goods or pursuant to the anti-discrimination statutes are beyond the scope of this paper.

2.This paper does not consider the detail of damages claims brought pursuant to sections 7 and 8 of the Human Rights Act 1998 (“HRA”).  However, it does seek to identify key distinctions between actions based on the intentional torts considered herein and damages claims under the HRA.  

False Imprisonment

Elements of the Tort

3.The tort of false imprisonment involves the infliction of bodily restraint that is not expressly or impliedly authorised by law3.   The burden of proof is on the claimant to establish that the detention occurred; if this is shown the burden shifts to the defendant to show that there was lawful justification for the detention.  The importance of the availability of an action in false imprisonment is well recognised:

1 Section 31(4) Supreme Court Act 1981.

2 For example see R (Quark) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2003] EWHC 1743.

3 R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19 HL at 28C.

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