CHAPTER ONE – INTRODUCTION
- The monetisation of rights, or indeed the quantification of when a right has been breached, can feel an uncomfortable exercise to some. To others, damages as just satisfaction for the breach of a right/s is a natural consequence; compensation as vindication is common in the English and Welsh legal system. The conflicting views, and all that exists in between, has attracted much debate, but you will not find that here. This is a practical guide for the calculation of non-pecuniary damages in claims under the Human Rights Act 1998 (“HRA”) for breaches of articles of the European Convention on Human Rights and Fundamental Freedoms (“Convention”), in Schedule 1 of the HRA. It is what exists now, rather than why it exists.
- Article 41 of the Convention states:
“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.”
- Section 8 HRA sets out judicial remedies in the following terms:
“(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.
(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.…”
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- Just satisfaction may be achieved simply by the finding of a violation or a declaration.[1] Section 8(3) HRA reflects that possibility. In reality, and generally, the request for an award of damages in HRA claims is effectively the default starting point. Crude though it may be, the top and bottom line of a claim remains the money. Where parties are encouraged to resolve cases early,[2] and where the time and financial costs of proceedings can outstrip awards for damages made under the HRA, estimating the best and worst case scenarios for damages is vital.
- Though damages have been awarded both by domestic courts (“courts”) and the European Court of Human Rights (“ECtHR”) for many years, calculating an award for non-pecuniary damage that affords just satisfaction is challenged by conceptual difficulties in how ECtHR has decided the value of the awards made, with the ECtHR adjusting awards by reference to the respondent government against whom such an award is made.[3] The instinctive approach to damages is germinated in our domestic legal education. The reflex approach to calculating quantum under the HRA by applying domestic law is tempting, but such an approach has the potential to: become frustratingly circular, in that the domestic application of section 8(4) HRA requires the courts to look to the principles applied by the ECtHR; be contradictory, in that in the domestic context damages are awarded as a standard whereas section 8(3) HRA suggests that one progresses through other methods to achieve just satisfaction before reaching the question of damages at all; and/or is inconsistent with the reminders that the courts have given, i.e. that the HRA (and damages made pursuant to it) are not the same as a tort statute, has a different purpose and/or to align the domestic and Convention approach would be a fallacy.
- If you have decided to pick up this book, you probably already understand the practical reality of calculating damages to achieve “just satisfaction”. Settling on what figure is not a straightforward exercise, more often than not. Lord Bingham in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 observed:[4]
“There is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another.”
- Similarly, there is a risk of error if awards in respect of a type of conduct under one article are read across as applicable to all types of conduct within the same article. This guide aims to mitigate those risks by looking at, in each chapter, the principles from the ECtHR in respect of particular articles (or within the particular article) and the application of the principles of particular articles in the courts. But, this is not just a book of quantum reports. It is intended to aid in understanding what just satisfaction looks like in monetary terms.
- In R (Sturnham) v Parole Board and another (Nos 1 and 2) [2013] UKSC 23 at [29], Lord Reed JSC stated:
“… the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat. I would however observe that over time, and as the practice of the European court comes increasingly to be absorbed into our own case law through judgments such as this, the remedy should become naturalised. While it will remain necessary to ensure that our law does not fall short of Convention standards, we should have confidence in our own case law under section 8 once it has developed sufficiently, and not be perpetually looking to the case law of an international court as our primary source.”
- As a consequence, having confidence in the awards made in the UK, where there have been many cases in the UK where non-pecuniary damages have been awarded, this book will focus on UK cases.
- Where there are limited cases decided by UK courts in which non-pecuniary damages were awarded, then this book will focus on cases from ECtHR concerning the UK, and then, in the limited circumstances where there are few representative cases concerning the UK, this book will look at cases from the top five largest economies in Europe by GDP (excluding the UK, which – at the date of writing – was one of the top five largest economies in Europe by GDP) to focus on awards where there is a comparable cost of living[5] taking into account “local economic circumstances in the Respondent States in its calculations.”[6]
- The ECtHR cases concerning the United Kingdom appear first in order, regardless of date, followed by other states. The ECtHR’s Practice Direction also takes into account whether there have been several violations of protected rights by a particular respondent state,[7] and awards against a particular respondent state may be skewed by the frequency with which awards had been made against that particular state in the particular period of time so should be treated with caution.
- Where the award made by the ECtHR is in euros, this book will specify the exchange rate at the time of the award by reference to the ONS’s calculation of the average sterling exchange rate for euros,[8] but does not calculate inflation as, by the time this book may be read, the impact of inflation may have changed. The dates of the decisions have been included to assist you in calculating inflation.
- The Convention is a living instrument and will continue to be interpreted in light of the presenting conditions at the time a case is decided.[9] Practitioners must be mindful of whether and how the interpretation of the living instrument may have changed.
[1] Paragraph 4 of the ECtHR’s Practice Direction on Justice Satisfaction.
[2] The Overriding Objective in the Civil Procedure Rules.
[3] Paragraph 14 of the ECtHR’s Practice Direction on Justice Satisfaction;
R (KB) v Mental Health Appeal Tribunal [2003] EWHC 193 (Admin)
at [23].
[4] At [7B].
[5] R (Sturnham) v Parole Board and another (Nos 1 and 2) [2013] UKSC 23 at [38].
[6] Paragraph 14 of the ECtHR’s Practice Direction on Just Satisfaction.
[7] Paragraph 13 of the ECtHR’s Practice Direction on Just Satisfaction.
[8] https://www.ons.gov.uk/economy/nationalaccounts/balanceofpayments/
timeseries/thap/mret.
[9] Tyrer v the United Kingdom (1979-80) 2 E.H.R.R. 1.