Damages and the "Essence" of False Imprisonment

Abstract

In GE v Commissioner of An Garda Síochána, Ireland’s Supreme Court answered the following question:

Can P recover substantial (rather than nominal) damages for false imprisonment where, had P not been unlawfully detained by D, P could and would have been lawfully detained by D for the same period, under identical conditions?

This question has recently been authoritatively addressed by the UK’s Supreme Court (Lumba v Secretary of State for the Home Department) and Australia’s High Court (Lewis v ACT). Both courts answered the question in the negative, awarding P only nominal damages. In GE, Ireland’s Supreme Court unanimously diverged from Lumba and Lewis, making a small substantial award of €7,500. Hogan J delivered the only judgment. Here, I argue that Hogan J’s grounding of the Court’s conclusion in the value of ‘liberty’ is insecure absent further specification of the relevant sense of ‘liberty’ at issue. I distinguish two conceptions of liberty, suggesting the Lumba-Lewis approach has obvious appeal on one such conception, but not the other.