In this case I appeared for the Defendant which successfully appealed against the decision of HHJ Spencer QC that the union was liable for false imprisonment in circumstances where they carried out a sudden unannounced strike in breach of contract such that the prisoners in the prison spent an extra six hours of their day locked inside their cell. That appeal succeeded (The Master of the Rolls and Smith LJ in the majority with a dissent by Sullivan LJ) and in allowing the appeal the court considered the defining elements of the tort setting down amongst other things that the tort will almost invariably be committed by a positive act of imprisonment or breach of a specific duty owed to the Claimant to release him; that causation in this tort retains a requirement for the action to be the direct and immediate cause of the imprisonment and mere foresight is not enough; and that it was inappropriate to allow liability for such a serious tort to depend upon what may amount to mere timekeeping. The case is also of significance in the context of damages. Had the appeal on liability been dismissed all three judges concluded that they would have allowed the cross appeal and increased the Claimant’s damages from the sum of £5 to £120. In doing so Smith LJ stated that ‘ the circumstances in which nominal damages would be appropriate are rare almost to vanishing point’. The consequences for the union of losing this appeal would have been severe indeed. The right to strike would have been effectively removed at common law.
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