In Sisangia, R (on the Application of) v Director of Legal Aid Casework  EWHC 3706 (Admin) the High Court has clarified the requirements for funding claims of false imprisonment. They are within scope by virtue of para 21 of Part 1 of Schedule 1 of LASPO, which provides:
21. Abuse of position or powers by a public authority
(1) Civil legal services provided in relation to abuse by a public authority of its position or powers.
(2) Sub-paragraph (1) is subject to-
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs … 3 … of that Part …
(3) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence.
(4) For the purposes of this paragraph, an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission –
(a) is deliberate or dishonest, and
(b) results in harm to a person or property that was reasonably foreseeable
(5) In this paragraph –
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services).
Para 3 of Part 2 says that claims for the torts of assault, battery or false imprisonment are out of scope, but those exclusions are dis-applied by para 21(5), meaning that those torts can be pleaded as part of a claim against a public authority for abuse of powers.
The LAA’s position was that for an application to be granted, it must be shown that the act or omission complained of was deliberate or dishonest and resulted in foreseeable harm, and that there must also be an abuse of position or power - that more than simple negligence is required. It said that both the act itself (in this case, an arrest) and the absence of lawful authority behind that had to be deliberate or dishonest – that in the case of unlawful arrest and false imprisonment it was necessary to show that the arrest was deliberate or dishonest and so was the lack of lawful authority – that the arresting officer action deliberately or dishonestly arrested knowing there was no legal power to do so, intending to abuse his powers.
Dingemans J held that para 21(4) was a complete definition, not a minimum requirement. If its requirements are made out, then that will be enough to show that there was an abuse of position or powers. Nothing further will be required. Only the act had to be deliberate or dishonest. The arrest was deliberate, it resulted in harm and the harm was foreseeable. It need not be also shown that there was also bad faith or dishonest motivation or that the arresting officer acted knowing he had no power to do so.
This is a helpful decision and should make the granting of funding in cases under para 21 more likely in the future.