Facts: Mr Bostridge was detained under section 3 of the MHA 1983, discharged by the First-tier Tribunal (FTT), made subject to a Community Treatment Order (CTO) and then recalled into hospital detention pursuant to the CTO. That period of detention was unlawful because the CTO was unlawful, in that a CTO can only be made in respect of a patient who is liable to hospital detention whereas, at the time, Mr Bostridge had just been discharged by the FTT. As soon as the mistake came to light, Mr Bostridge was discharged from his unlawful detention and immediately re-detained, lawfully, under section 3 of the 1983 Act. The Trust also adduced evidence that, had it been appreciated that the CTO was unlawful, Mr Bostridge would have been detained in any event under section 3 of the 1983 Act, rather than the CTO, and his treatment would have been exactly the same. On that basis, the first instance judge awarded only nominal damages in respect of the period of admitted false imprisonment, pursuant to the CTO. Mr Bostridge appealed.

Judgment: the Court of Appeal (Vos and Clarke LJJ, Sir Terence Etherton) dismissed the appeal, holding that normally only nominal damages would be awarded in a case where the individual would have been in exactly the same position, even if the tort of false imprisonment had not been committed and the position was no different under Article 5 ECHR.

Comment: the burden is on the public authority to assert and prove that the unlawful detention in fact made no difference.1R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) para 74.However, this decision is likely to impact considerably on DOLS cases, under the Mental Capacity Act 2005, where quite often a deprivation of liberty is effected in breach of provisions of the admittedly rather complex DOLS machinery but where, in many cases, the individual concerned would have been detained in any event, in exactly the same way. In other cases, of course, the evidence might lead the Court to conclude that, had lawful steps been taken, the person would not have been detained or, in any event, that a less restrict approach would have been taken, in which case substantial damages may be awarded. It makes an interesting comparison with the TF case, above para 19.19.