GALBRAITH TRAWLERS LTD AGAINST THE ADVOCATE GENERAL FOR SCOTLAND (AS REPRESENTING THE HOME OFFICE)

Factual and Procedural Background

The Plaintiff, a fishing company, owned a fleet of prawn fishing vessels which were detained unlawfully by the Defendant, representing the Home Office, between 2015 and 2016. The detentions arose from an investigation into alleged facilitation of breaches of immigration law involving the employment of foreign workers on the vessels. The vessels were detained under section 25D of the Immigration Act 1971, but the detention was challenged on the basis that the officer effecting the detention lacked the necessary rank and authority under the statute.

The Plaintiff initiated proceedings in 2018 challenging the lawfulness of the detentions and sought damages for losses suffered. The Sheriff at Campbeltown found the detentions unlawful and awarded damages. The Defendant appealed, contending that damages should be nominal because the Home Office could have lawfully detained the vessels if they had properly understood the law. The appeal was remitted from the Sheriff Appeal Court to the Inner House of the Court of Session for determination.

Legal Issues Presented

1. Whether the test for assessing damages in wrongful detention cases should be based on what would have happened if the detention had been lawful, as per the English case Parker v Chief Constable of Essex Police, or on the traditional "but for" test assessing what would have happened if the wrongful act had not occurred, as supported by Australian and Irish jurisprudence.
2. Whether the detentions effected by an immigration officer who was not a senior officer under section 25D of the Immigration Act 1971 were unlawful and whether this unlawfulness caused the Plaintiff's loss.
3. Whether damages for the unlawful detention of property should be restricted to nominal damages when the Defendant argues the vessels could have been lawfully detained.

Arguments of the Parties

Defendant's Arguments

• The unlawful detentions were procedural or technical errors, as the detention letters were signed by an "acting" Chief Immigration Officer without formal authority.
• Had the Home Office understood the correct legal requirements, they could and would have lawfully detained the vessels under section 25D.
• Damages should be restricted to a nominal amount because the loss would have occurred anyway due to lawful detention.
• Relied on the reasoning in Parker v Chief Constable of Essex Police and related English cases, which apply a counterfactual test based on what would have happened if the law had been properly appreciated.
• Asserted that the pursuers had not sustained substantive patrimonial loss as a consequence of the procedural failings.

Plaintiff's Arguments

• The cited English authorities are neither binding nor applicable to the present case, which concerns property rights and patrimonial loss.
• The unlawful detention by an unauthorized officer constitutes a substantive error, entitling the Plaintiff to full compensatory damages rather than nominal damages.
• Damages for wrongful detention of property should not be computed as if the Defendant had acted lawfully.
• The proper causation test is the traditional factual "but for" test: what would have happened if the wrongful act had not occurred.
• Restricting damages to nominal amounts would undermine the principle that there can be no wrong without a remedy and would fail to deter unlawful conduct by public authorities.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming the principle that damages aim to restore the claimant to the position they would have been in had the wrong not occurred. It scrutinized the English test from Parker, which bases damages on a hypothetical scenario where the authority appreciated the law and acted accordingly, finding it circular and inconsistent with Scots law.

The Court preferred the approach endorsed by Australian and Irish courts, which applies the traditional factual causation test: what would have happened on the balance of probabilities if the wrongful act had not occurred. It rejected the idea that the court should assume lawful detention would have followed if the Home Office had understood the law.

The Court found that the Home Office had a flawed understanding of the legal requirements for detention under section 25D, and there was no evidence that a lawful detention would have ensued even if the errors had not been made. The detentions were effected by an officer without the statutory authority required, rendering them ultra vires and unlawful.

Policy considerations also weighed against limiting damages to nominal amounts. The Court emphasized the importance of a real remedy as a deterrent against unlawful conduct by public authorities, especially considering the serious property rights infringed by wrongful detention of vessels.

The Court further clarified the nature of "nominal damages" in Scots law, noting that such damages are not necessarily minimal and can serve as a modest deterrent. However, in this case, the wrongful detentions caused real patrimonial loss, warranting substantive damages.

Holding and Implications

The Court REFUSED THE APPEAL and affirmed the interlocutor of the Sheriff at Campbeltown dated 12 December 2022 (as revised on 9 January 2023), maintaining the award of compensatory damages to the Plaintiff for the unlawful detention of the vessels.

The direct effect is that the Defendant remains liable for damages totaling £284,227 plus interest and legal expenses. The Court’s decision reinforces the principle that unlawful detention of property by unauthorized officers results in substantive liability and that damages must be assessed on the factual "but for" causation basis rather than hypothetical lawful detention scenarios.

No new precedent was established beyond reaffirming the application of Scots law principles over the English counterfactual approach in wrongful detention cases.