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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.

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(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).

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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.

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.
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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.

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
7

[2003] EWCA Civ 1406; [2004] QB 1124

Para 53

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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

[2005] UKHL 14; [2005] 1 WLR 673

Paragraph 5
10
Paragraph 61
9

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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)

Firstly, existing public and private law remedies must be

inadequate.

(ii)

Secondly, a causal connection between the loss and the loss in

respect of which compensation is claimed.

(iii)

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

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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

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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 Appeals 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
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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

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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

[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.
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recover damages for non-pecuniary loss unless the distress is of
exceptional gravity:
as damages are not in Lord Binghams 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.
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.
22

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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

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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
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LONDON
EC4Y 7HH

27

Supra

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