Bobby Talalay successfully argues potentially legally significant defence to false imprisonment claims brought by claimants recalled to prison

Bobby Talalay successfully appeared for the Defendant, the Ministry of Justice (MoJ), in Coe v MoJ (claim no. 091DC117), a claim for damages in false imprisonment brought by a prisoner recalled to prison for 7.5 months. The trial was heard by HHJ Bloom in the Central London County Court, who gave a detailed judgment on two issues: (1) whether the recall decision was unlawful and (2) irrespective, whether the Claimant’s detention was nonetheless lawful (within the meaning of the tort of false imprisonment) as he was detained pursuant to the original Order of Imprisonment of the Crown Court.

The Judge dealt first with issue 2. This is an issue which is arguably not yet the subject of binding authority, but which has been considered obiter in a number of cases in respect of the common law tort of false imprisonment; and where there is binding authority in respect of art.5 ECHR claims. A similar claim, raising similar issues, was also recently considered by HHJ Saunders obiter also in the Central London County Court (McIver v MoJ (Case No: J79YX418)).

In her judgment, HHJ Bloom conducted a detailed review of the authorities. The judge rejected the argument of the Claimant, relying on Lumba and Kambadzi, that a public-law error rendered the detention unlawful, distinguishing discretionary decisions to detain in the immigration context from a situation where there existed an Order of the court rendering detention lawful during the full term of a determinate sentence.

HHJ Bloom concluded as follows:

54. There is a differential to draw between whether there is a right to liberty and a claim for false imprisonment. If someone is unjustly detained, they are entitled to be released and given their liberty. They can be released by Judicial Review or the Parole Board can release them but that is entirely separate from whether they are entitled to claim damages for false imprisonment.
55. The principles set out in ex p Evans are powerful and support my finding that whilst Mr Coe was detained on recall but during his original term of imprisonment his detention did not sound in damages. The detention was justified by the original sentence of the Court. The situation is not comparable to immigration detention cases where the right to detain is solely based on an executive decision of the Home Secretary and is not referable to an order of the Crown Court or any court to authorise detention. The governor of the prison was bound to detain Mr Coe under his original sentence. There was no new statutory power to detain.
56. The decision to recall is subject to a discretion and can be challenged in the Administrative court or by the Parole Board but until or unless there is decision or order to release the prisoner is incarcerated by reason of his original sentence which was deemed to be the appropriate custodial period. The duty to release under Section 244 is subject to the licence conditions which can be invoked to seek a recall. But that is not the same as an executive decision by a Minister to detain pending deportation. There is no court authority to detain. The deportation order is not an order enabling detention but enabling removal from the country. Hence the careful scrutiny envisaged in Lumba and the right to damages where there are public failings. The detention in this instance operates in a completely different regime and against a totally different background.
57. Whilst there is no binding authority to assist me, the authorities under Article 5 point to the court having no difficulty in adopting a similar approach in concluding that damages would not lie for breach of Article 5 as the custodial sentence provides the basis for detention being lawful. Whilst not binding it is a powerful indication as to justification for detention.
58. Similarly, there are no binding authorities in relation to the tort itself but all the obiter authorities suggest that the correct approach is that there is no claim in damages for false imprisonment where an individual is detained pursuant to their original custodial sentence.
59. I agree with Mr Talalay and find that even if the recall was not lawful there is no false imprisonment tort that sounds in damages. The recourse was to seek judicial review or obtain release from the Parole Board.

HHJ Bloom went on to also decide that the decision to recall the Claimant to prison was lawful.

Bobby has extensive experience of acting on behalf of public bodies involved in the criminal justice system; including police forces, the CPS, HMCTS, and HMPPS. Bobby has particular expertise in false imprisonment claims and human rights matters, as well as with other areas such as data protection and privacy litigation, claims for assault, stress at work, malicious prosecution, and other civil actions and judicial reviews. Bobby was recently appointed to the Attorney General’s A Panel of Counsel, with his appointment commencing on 1 September 2026.