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22.A claim for judicial review may include a claim for damages but may not seek such a remedy alone47.  As referred to in paragraph 12 above, a private law claim will not be struck out simply because it could have been brought as a judicial review application unless the action amounts to an abuse of process and it is permissible to litigate public law issues in a private law claim where private law rights have been infringed and private law remedies are sought.

23.Factors that are likely to prove significant in determining whether to commence a claim concerning unlawful detention by way of judicial review or private law action include:


the degree to which the detention is said to give rise to remedies under the HRA as well as to a claim in false imprisonment;


the extent to which there are likely to be disputed areas of fact, requiring cross examination of witnesses;


whether trial by jury is sought; and


the period of time that has elapsed since the detention complained of.

Assault and Battery

Ingredients of the Torts

24.An assault is “an act which causes another person to apprehend the infliction of immediate, unlawful force on his person”, a battery is “the actual infliction of unlawful force on another person”48.  It is not necessary that the claimant suffers pain or physical or psychiatric injury in consequence.  A battery may arise where direct physical contact is made with the claimant, either via the assailant’s body or via something under his direct control, such as a baton or CS gas spray. The physical contact must be intentional or reckless for it to amount to a battery.  The conduct is intentional if the claimant shows that the assailant deliberately used some physical force against him. There does not need to be any intention to cause the claimant injury or damage through the physical contact.  Nor does the extent of the claimant’s injuries have to be foreseen; thus the defendant may be liable for unintended, serious injuries resulting from a relatively minor but deliberate act of

47 CPR 54.3(2).

48 Collins v Wilcock [1984] 1 WLR 1172 at 1178.

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