1 JUST SATISFACTION BUT ONLY JUST? The award of damages under the Human Rights Act Ben Collins INTRODUCTION 1. Article 13 ECHR requires national courts to provide an effective remedy for violations of the convention: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 2. This paper examines the extent to which the UK courts are prepared to conclude that such an effective remedy should include an award of damages. As will be seen, there is a marked reluctance to award damages save in the clearest cases. 3. The statutory starting point is section 8 of the HRA, which is set out in full as follows: Judicial remedies (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
2 (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. (5) A public authority against which damages are awarded is to be treated (a) in Scotland, for the purposes of section 3 of the [1940 c. 42.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; (b) for the purposes of the [1978 c. 47.] Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made. (6) In this section court includes a tribunal; damages means damages for an unlawful act of a public authority; and unlawful means unlawful under section 6(1).
3 4. The key questions for a litigant considering damages in any particular case are, firstly, whether an award is appropriate at all; and, secondly, the amount of such an award. BACKGROUND DAMAGES IN PUBLIC LAW CLAIMS 5. It is well established that a breach of a public law right by itself gives rise to no claim for damages. A claim for damages for breach of statutory duty must be based on a private cause of action see X (Minors) v Bedfordshire County Council. 1 Save, therefore, in very restricted circumstances (for example claims for misfeasance in public office 2 ) the breach of a public law right does not give rise of itself to a remedy in damages. Claims for judicial review may include claims for damages 3 but may not seek such a remedy alone. The judicial review process thus allows damages to be claimed alongside another public law remedy. 6. Where do damages under the HRA fall within this framework? A claim for damages under the HRA is not a claim in tort for breach of a statutory duty the HRA is not a tort statute. 4 Rather it is a statutory, discretionary remedy available to the courts in addition to their other public and private law powers. Thus damages under the HRA may be claimed alongside claims for prerogative orders in judicial review proceedings; or alongside tortious damages in a private law claim. 5 In either case, section 8(3)(b) provides that damages will be awarded only where, the court is satisfied that the award is necessary to afford just satisfaction 1 [1995] 2 AC 633 per Lord Browne-Wilkinson @ 730. The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority's performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages.. More recently, see Somerville v Scottish Ministers, [2007] UKHL 44; [2007] 1 WLR 2734. 2 See Watkins v Home Office and Others [2006] UKHL 17; [2006] 2 AC 395. 3 CPR 54.3(2) 4 R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673, per Lord Bingham at paragraph 19, distinguishing the statutory regime for damages for discrimination. See also Anufrijeva, para 50. 5 See paragraph 127 of Somerville, supra, per Lord Rodger.
4 NECESSARY TO AFFORD JUST SATISFACTION 7. The wording of section 8(3)(b) originates with Article 41 ECHR, which provides: If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. 8. The underlying approach of section 8 mirrors that of Article 41 in that both provisions provide for an award of damages in addition to what might otherwise be awarded; in circumstances where the award would not otherwise do justice to the case (this is made more explicit by section 8(4), which provides that the court must take into account the principles applied by the ECtHR in relation to the award of compensation under Article 41). Damages under the HRA might thus be viewed as an additional award, made only after consideration of other remedies. The Courts both here and in Strasbourg have adopted that approach. 9. The first authoritative analysis of the question of when damages should be awarded in HRA cases was undertaken by the Court of Appeal in Anufrijeva and another v Southwark London Borough Council. 6 Having noted the distinction between tort, where damages may be claimed as of right, and claims under the HRA, where (as set out above) they may not, Lord Woolf noted that, Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. 7 6 [2003] EWCA Civ 1406; [2004] QB 1124 7 Para 53
5 10. This sentiment was reinforced by Lord Bingham in R(Greenfield) v SSHD 8, where he observed that the primary aim of the Convention is to promote uniform protection of fundamental human rights, and that, The expectation therefore is, and has always been, that a member state found to have violated the Convention will act promptly to prevent a repetition of the violation, and in this way the primary object of the Convention is served. 9 11. Against that background, damages play very much a secondary role. It is clear that they will not be payable in every case. Indeed the Court in Anufrijeva noted that, historically, awards of damages had been very much the exception rather than the rule in Strasbourg: Clayton & Tomlinson, The Law of Human Rights, vol 1, have analysed the claims for compensation made to the Court of Human Rights. They set out their results and comment on these as follows: "21.32. The court does not routinely award compensation to successful applicants. Between 1972 and 1981 the court made awards in seven cases and rejected three such claims. Between 1982 and 1991 applicants sought non-pecuniary damages in 51 cases where the court held that the judgment alone gave just satisfaction. It has been suggested that these cases share certain general characteristics: the court was very divided on the merits; a large majority of cases concerned individuals who were accused of (or were guilty of) criminal offences; and they often involved procedural errors in civil or administrative hearings. The same pattern continued from 1992 until the new court was established in November 1998. The court found its judgment sufficient to meet the moral injury caused in 79 of the cases. 10 8 [2005] UKHL 14; [2005] 1 WLR 673 9 Paragraph 5 10 Paragraph 61
6 12. It should further be noted that the principles identified above leave no room for exemplary or punitive damages. The finding of a violation will be sufficient unless it is necessary further to compensate the claimant for losses they have actually sustained. 13. How, then, may an appropriate case for damages be identified? Three criteria appear to be central: (i) (ii) (iii) Firstly, existing public and private law remedies must be inadequate. Secondly, a causal connection between the loss and the loss in respect of which compensation is claimed. Thirdly, (and in particular in claims for non-pecuniary damages) a sufficient degree of gravity in terms of the loss itself. Inadequacy of other remedies 14. Lord Woolf in Anufrijeva noted that the majority of human rights claims will be litigated through the Administrative Court, and it is to the prerogative orders that that court will primarily look. Most human rights violations can be resolved by mandatory or quashing orders; and where (in the majority of cases, as identified above) a finding of a violation is sufficient, a declaration will be adequate. 15. Insofar as private law rights may be in issue, the Court will first assess whether adequate damages may be obtained by a private law route. Thus in Dobson v Thames Water Utilities 11 the court concluded that, where damages were available in nuisance against a sewerage undertaker, such damages themselves constituted just satisfaction and no further damages were awarded. 11 [2009] EWCA Civ 28
7 Causal Connection 16. Practitioners in the UK are well used to considering questions of causation. While section 8 HRA requires the Courts to look to the approach of the ECtHR to the application of Article 41, a test which requires the Court to consider what would have happened but for the violation is not an unfamiliar one for UK practitioners and judges. The appropriateness of the but for test was confirmed in Van Colle v Chief Constable of the Hertfordshire Police. 12 17. In this regard, an examination of the facts will be necessary. Thus in an Article 2 case, causation may be relatively straightforward to deal with where a Court has concluded that there has been a failure to protect the life of the deceased. 13 In an Article 6 case, by contrast, causation may be less easily established. As Lord Bingham observed in Greenfield, such cases, have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child has been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred. 14 18. Awards will thus only be made where a causal connection can be established between the violation and the loss. See Kingsley v United Kingdom: The court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of article 6 is that the 12 [2007] EWCA Civ 1821; [2007] 1 WLR 1821. The case was subsequently decided in the House of Lords, but there was no appeal against the Court of Appeal s conclusions in relation to damages, which are to be found at paragraphs 100-129. 13 See, for example, Van Colle, supra; and Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74; [2009] 2 WLR 155 14 Para 7
8 applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. The court will award monetary compensation under article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the state cannot be required to pay damages in respect of losses for which it is not responsible. 15 19. In the family context, in Venema v Netherlands 16 a child was removed from its parents because it was suspected that the mother was suffering from Munchausen's Syndrome by proxy. The Court found a wholesale failure to consult the parents or to give them proper opportunity to dispel concerns by challenging the reliability, relevance or sufficiency of the information upon which the authorities were acting. An award of damages was made. By contrast in Re P 17 the Court found that even if proper consultation had taken place, the outcome would have been the same and no award was made. 18 20. Where violations are purely procedural, it follows that no award of damages is likely. Gravity 21. In Baiai, 19 Silber J considered claims for non-pecuniary damages for distress and anxiety in the context of marriage claims under asylum and immigration legislation. 20 A relatively strict approach was taken; it is submitted rightly given the approach identified in Anufrijeva and Greenfield. Silber J noted that it is still very unusual for a claimant to 15 35 EHRR 177, para 40 16 [2003] 1 FLR 552 17 [2007] EWCA Civ 2 18 See also the money claims in Baiai, dealt with more fully below. 19 [2006] EWHC 1035 (Admin). Note that this is the second of three judgments given by Silber J in this case. 20 As well as money claims for the fee ( 135) required to process the marriage claims themselves. These were rejected on causation grounds the SS would have been entitled to levy charges under a lawful system for testing marriage claims.
9 recover damages for non-pecuniary loss unless the distress is of exceptional gravity: as damages are not in Lord Bingham s words 21 the routine treatment, there will have to be exceptional circumstances before damages can be awarded for violations of Articles 12 and 14. 22 22. Considering the evidence in that case, Silber J found that the accounts given were too vague for any award to be appropriate. there is an absence of cogent corroborative medical or other evidence showing that any of the claimants suffered from serious or any distress of the intensity required to obtain an award of compensation. 23 23. The reference to intensity is derived from the case of Silver v UK 24, in which the ECtHR (in the context of a claim for unlawful interference with correspondence by prison authorities) concluded that: It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. 24. It follows that there is a minimum threshold required to obtain damages for distress and anxiety, the threshold being identified by reference to intensity, exceptional circumstances, or exceptional gravity. Where psychiatric injury can be proven, damages are more likely to be awarded. 25 Where, however, the distress falls short of that, it will be rare indeed for the court to make an award. 21 In Greenfield, supra. 22 Paragraph 34. Emphasis appears in the judgment. 23 Paragraph 39. Emphasis appears in the judgment. 24 (1983) 5 EHRR 347, cited in both Anufrijeva and Baiai. 25 See R(N) v SSHD [2003] EWHC 207, Silber J, although it is arguable that the threshold is set lower in that case in that in Baiai, in which the same judge took a somewhat more robust approach with the benefit of the decisions in Anufrijeva and Greenfield.
10 25. One circumstance where an award may be made in the absence of identifiable psychiatric injury may be distress relating to bereavement in an Article 2 case see Van Colle. 26 The domestic approach to compensation (the statutory bereavement award) perhaps provides a justification for damages being payable for distress in such circumstances, even where no psychiatric injury is sustained. Nevertheless, the Court expressed reservations: it seems to us that there is no clear basis in the Strasbourg decisions for an award to the claimants in their personal capacity, as opposed to an award to the first claimant as personal representative of their son, which is plainly justified. Nevertheless, although on this appeal the defendant contends that the award to the claimants personally was too high, the defendant's notice does not take the point that no award should have been made to them at all, assuming that the court rejects his appeal on liability and causation. In the defendant's skeleton argument, though the point is noted that no Strasbourg award includes compensation for the applicant's own suffering except where the applicant was also a direct victim, this is not put as the basis for a contention that no award at all should be made to the claimants personally, if the judge is upheld on liability and causation. We therefore leave this point for possible future consideration. 26. Claims for damages for bereavement under the HRA are accordingly subject to challenge on this basis. MEASURE OF DAMAGES 27. There is very little guidance from Strasbourg as to the quantification of non-pecuniary loss in human rights cases, and the Courts in the UK are only slowly building up sufficient precedent to enable advisers to make informed decisions about likely compensation. Judgments as to the making or acceptance of Part 36 Offers are consequently particularly difficult in these cases. 26 Supra
11 28. The most helpful review of the available authorities is that of the Court of Appeal in Van Colle. 27 The Court was clear, following Greenfield, that the proper guide to quantum lies in Strasbourg rather than with the English authorities. That is to a degree of little assistance given that the Strasbourg authorities are so limited. Although the Court in Van Colle undertook a review of comparable cases, little by way of applicable principles emerges. Each case will turn on its own facts and there remains no obvious tariff for human rights damages claims. BEN COLLINS 1 CROWN OFFICE ROW TEMPLE LONDON EC4Y 7HH 27 Supra