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URL: http://www.bailii.org/ew/other/EWLC/2000/266(4).html
Cite as: [2000] EWLC 266(4)
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PART IV
JUST SATISFACTION UNDER THE
COMMON LAW
1. INTRODUCTION
4.1 In this Part we consider how the principle "restitutio in integrum" derived from the Strasbourg case-law on "just satisfaction" can be expected to be applied under section 8 of the HRA when a claim is made under section 7 by a victim[1] against a public authority,[2] and the court finds that the public authority has infringed or intends to infringe the victim's Convention rights.[3]
2. TAKING INTO ACCOUNT THE STRASBOURG PRINCIPLES
(1) Must the principles be followed?
4.4 It may be asked whether section 8(4) imposes an obligation on the courts to apply the Strasbourg principles or merely to have regard to them. The Lord Chancellor has stated that the aim of section 8(4) is that "people should receive damages equivalent to what they would have obtained had they taken their case to Strasbourg".[4] However, it does not seem that this statement should be taken too literally. The issue is one of interpretation of section 8(4); and this only requires the courts to "take into account" the principles applied by the Strasbourg Court.[5]
4.5 As a general rule, however, in the light of section 8(4), it would not normally seem appropriate for a domestic Court under the HRA to award damages of a kind not awarded in Strasbourg,[6] nor to deny damages for a loss for which the Strasbourg Court would award damages.
(2) Principles not practice
4.7 This understanding is well illustrated by the judgment of the Court of Appeal in Heil v Rankin.[7] The Court of Appeal was considering a number of test cases, selected to enable the Court to respond to a Law Commission report which proposed that damages for non-pecuniary loss, such as pain and suffering, should be increased substantially to take account of changes in the value of money and other factors.[8] Giving the judgment of the Court,[9] Lord Woolf MR distinguished between the underlying "principles" and "guidelines" for individual cases: the task of the court in that case was not
to depart from any existing legal principles as to the assessment of personal injury damages...[but] limited to providing fresh guidelines so as to give effect to well established principles as to the objective which should be achieved by an award of damages.[10]
4.8 The main underlying "principle", as he saw it, was that "full compensation"[11] should be provided. This applied to pecuniary and non-pecuniary damage alike; but, in the latter case, was subject to the practical consideration that
[t]here is no simple formula for converting the pain and suffering, the loss of function, the loss of amenity and disability which an injured person has sustained, into monetary terms. Any process of conversion must be essentially artificial.[12] Another "principle" was that the use which the claimant will make of the money is irrelevant.[13]
In the case of pecuniary loss, the courts have progressively been prepared to adopt ever more sophisticated calculations in order to establish the extent of a claimant's loss[14].... In the case of nonpecuniary damages, the scale of damages has remained a 'jury question'.[15]
4.10 As we have seen, the principle of "full reparation" is also affirmed by Strasbourg case-law.[16] The measure of damages in individual cases is much less likely to be of direct value as guidance, in view of the variety of factors by which it may be influenced[17] 7
3. COMMON LAW ANALOGIES
(1) Comparisons with claims in tort
4.13 Making such a comparison is useful for two reasons. The first is to point up the differences between claims in the domestic law and the practice in the Strasbourg Court to which courts in the United Kingdom must now have regard. This may be particularly relevant when a claimant combines claims under the Act and on some other basis.[18] The second is to identify rules which might usefully be applied by analogy when the Strasbourg jurisprudence does not seem to provide an answer to the question to be decided. For example, the Strasbourg Court has no developed doctrines of mitigation or of contributory negligence, though it is arguable that it reaches comparable results by using causation and its general discretion.[19] As we have said, there seems nothing to prevent a United Kingdom court applying more familiar concepts to cases under section 7 of the HRA.
4.14 The obvious comparator in English law is the award of damages in tort claims. As has been seen, the Strasbourg Court aims to provide restitutio in integrum: that is, to put the victim into the same position as if the wrong had not been committed.[20] This is also the general aim of compensatory damages in tort:
where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong...[21]
4.15 Further, there is no doubt that many of the rights protected by the HRA correlate to interests which are already protected in tort. The close connection between unlawful detention under Article 5 of the Convention and the tort of false or wrongful imprisonment provides a good example. There may also be a close connection between claims under the Act and, for example, claims for negligence or breach of statutory duty against public authorities.[22]
(2) Constitutional rights in the Commonwealth
4.16 Remedies in damages for human rights violations are not new to the common law world. Bills of rights similar to those in the Convention have been included in many Commonwealth constitutions, often linked with provision for compensation for their breach.[23] The leading judicial exposition of the nature and scope of such provisions (in relation to the Constitution of Trinidad and Tobago) is that of Lord Diplock, delivering the majority opinion, in Maharaj v Attorney-General of Trinidad and Tobago (No 2).[24] Lord Diplock emphasised the special nature of the remedy under the Constitution in relation to judicial acts:
The claim for redress under section 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself, which has been newly created by section 6(1) and (2) of the Constitution.[25]
4.17 He was careful to distinguish the "redress" available under section 6 of that Constitution from damages at common law. [26] He said:
[T]heir Lordships would say something about the measure of monetary compensation recoverable under section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages are recoverable at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration...[27]
4.18 It is doubtful, however, whether this analogy, or the distinction drawn between liability in tort and in "public law", will be of great assistance in the context of the HRA. The particular problem of liability for judicial[28] acts is dealt with specifically by imposing a liability on the Crown in defined circumstances.[29] In other cases, liability will fall, not on the Crown, but upon the particular public authority responsible for the breach, in the same way as liability in tort. Furthermore, there seems no warrant in the Strasbourg case-law for limiting the scope of damages in the way Lord Diplock suggested. For example, loss of reputation, which Lord Diplock appeared to exclude from the scope of "redress" under section 6 of the Constitution of Trinidad and Tobago, is a factor which the Strasbourg Court takes into account as an element of non-pecuniary loss, in awarding just satisfaction.[30]
4.19 In another important common law case, Simpson v Attorney General, Baigent's Case,[31] the New Zealand Court of Appeal followed the Maharaj case, holding that the applicant had a cause of action for breach of rights guaranteed by the New Zealand Bill of Rights Act 1990, which was not an action in tort. Again special circumstances applied.[32] Of more assistance may be the guidance given as to the level of compensation:
As to the level of compensation, on which again there is much international case-law, I think it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches are also proper considerations; but extravagant awards are to be avoided. If damages are awarded on causes of action not based on the Bill of Rights, they must be allowed for in any award of compensation under the Bill of Rights so that there will be no double recovery. A legitimate alternative approach, having the advantage of simplicity, would be to make a global award under the Bill of Rights and nominal or concurrent awards on any other successful causes of action.[33]
4.20 In comparing such cases, the differing statutory contexts are important. The HRA is not directly comparable to the Constitution of Trinidad and Tobago. It is not part of a "constitution" in any formal sense, and it does not therefore create "constitutional" rights. Nor is it directly comparable to the New Zealand Bill of Rights Act, which does not contain any express clause as to remedies. Rather, sections 6 and 7 of the HRA create a new cause of action, which is in effect a form of action for breach of statutory duty,[34] but with the difference that the remedy is discretionary, rather than as of right.
(3) Use of common law analogies
4.21 We refer below to some examples which may illustrate the possible uses of such analogies.[35] However, even if damages in tort are the most obvious analogy to damages under section 8 of the HRA, the analogy is one which must be applied with great care. First, the principles according to which the Strasbourg Court awards damages are sometimes inconsistent with the rules on damages for tort. For example, in English law punitive damages are currently available for certain torts.[36] The Strasbourg Court has never awarded punitive damages and, as already mentioned, to do so would be inconsistent with such general principles as it has laid down.[37]
4.22 Conversely, in cases of negligence, damages are not normally recoverable for pure economic losses,[38] whereas the Strasbourg Court awards damages for pecuniary loss, including what to an English lawyer might seem to be purely economic loss, without regard to whether the respondent State was acting intentionally or was merely negligent.[39] Equally, the Strasbourg Court regularly awards damages to compensate parents whose right to respect for family life has been infringed when State action has led to them losing contact with their child. There seems to be no equivalent of this claim for loss of relationship in English law.[40]
4.24 Even when the Strasbourg jurisprudence provides no answer to the question before the court, care must be taken. For example, there is no single rule as to which losses are compensatable by damages in tort. In particular the rules vary between intentional and non-intentional torts. Thus the remoteness rule found in negligence cases[41] does not apply to cases of fraud;[42] nor does the doctrine of contributory negligence.[43] Under the HRA, the measure most likely to achieve just satisfaction must be selected.
Damages to be awarded for a breach of the Charter may be similar to damages usually awarded in tort cases but owing to the nature of the right that was infringed the remedy to be awarded under s 24(1) would not necessarily be tantamount or restricted to the same kind and measure of compensation as in a tort action.[44]
4. PRINCIPLES FOR THE DOMESTIC COURTS
4.27 An important discussion of the likely approach of the English courts to the grant of remedies under the Act is to be found in a recent paper by Lord Woolf.[45] This is of particular interest when set beside the contemporaneous reasoning of the Court of Appeal, led by him, in Heil v Rankin.[46]
In the case of a tort there is a right to be paid such damages as will restore the claimant as far as possible to the position which would have existed if the tort had not been committed. The position is very different in the case of a breach of the ECHR at Strasbourg and I suggest under the Act.[47]
The provisions of section 8, in particular the words "just and appropriate" and "just satisfaction", suggested to him that the payment of damages "should not be automatic or as of right".[48]
4.29 With regard to the obligation to have regard to the "principles" applied by the Strasbourg Court, he said:
The difficulty... is that that Court has singularly (probably out of choice) failed to identify any such principles. The Court prefers to invoke a wide discretion, that is an equitable approach, depending on the circumstances of a particular case when deciding whether it should award any damages, and if so, the amount of those damages...
This unprincipled approach need not be a disadvantage so far as our courts are concerned. It allows us to develop our own principles within the statutory framework which the Act creates...[49]
These principles, in his view, should take account of the fact that the damages would be paid out of public funds, and that -
[t]he days when public bodies could be regarded as having purses of bottomless depth are now past. For example, an award of damages against a Health Authority can reduce the funds resources available for treating patients. An award against a Housing Authority can reduce the funds available for providing or repairing homes. There can be numerous victims of the same unlawful act.[50]
He expressed sympathy with the objective stated by the Constitutional Court of South Africa, to meet "the interests of both the complainant and society as a whole".[51]
4.30 He also drew an analogy with the jurisprudence of European Court of Justice, under which a "serious breach" is required before a member state has to pay monetary compensation:[52]
... it would be preferable for our basic domestic approach to be the same in relation to unlawful Community acts as it is in relation to breaches of the Convention. Fault I would say should not be ignored. Instead it should be a factor making it more appropriate to award damages.[53]
4.31 Lord Woolf suggested 8 possible principles, which can be summarised as follows:
(1) If there is any other remedy in addition to damages, that other remedy[54] should usually be granted initially and damages should only be granted in addition if necessary to afford just satisfaction.
(2) The court should not award exemplary or aggravated damages.[55]
(3) An award should be "of no greater sum than that necessary to achieve just satisfaction". If it is necessary for a decision to be retaken, the court should wait and see what the outcome is;[56]
(4) The quantum of the award should be "moderate", and "normally on the low side by comparison to tortious awards".[57]
(5) The award should be restricted to compensating the victim for what has happened "so far as the unlawful conduct exceeds what could lawfully happen".[58]
(6) Failure by the claimant to take preventative or remedial action will reduce the amount of damages.
(7) There is no reason to distinguish between pecuniary and non-pecuniary loss. What matters is that the loss should be "real [and] clearly caused by the conduct contrary to the Act".
(8) Domestic rules as to costs will probably cover any costs or expenses incurred by the complainant.
5. THE STRASBOURG PRINCIPLES AND THE APPLICATION OF SECTION 8
(1) The court's discretion to make an award
4.33 The discretion given to the court in section 8(1), to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate" is a reflection of the discretion possessed by the Strasbourg Court to decide whether or not to award damages (the only remedy available to that court). It is in apparent contrast to the common law position. Generally, at common law, once a legal wrong and consequent loss[59] have been established, damages are recoverable as of right.[60] Lord Woolf is right to emphasise, in relation to the award of damages, the extent of the discretion under the Act.
4.34 On the other hand, the Strasbourg Court has often emphasised that the purpose of awards of damages is restitutio in integrum, which, in theory at least, is no different to the purpose of common law damages.[61] The Strasbourg Court seeks to compensate the applicant fully for any loss which he or she can prove resulted from a violation of Convention rights. Insofar as the fourth principle proposed by Lord Woolf is intended to suggest otherwise, it is not consistent with the principle applied by the Strasbourg Court.
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.
(2) No damages if other remedy provides just satisfaction
4.36 It follows from section 8(3) that the court cannot make an award of damages unless it is satisfied that an award is necessary to afford just satisfaction to the victim of the breach of Convention rights. This is Lord Woolf's first principle, and is a direct reflection of the jurisprudence of the Strasbourg Court.[62] The onus will lie on claimants and pursuers not only to establish a breach of their Convention rights but also to show that other remedies which the court has power to grant will not provide just satisfaction. While the negative structure of section 8(3) seems to imply that damages are to be the exception rather than the rule, the obligation to ensure that, as far as possible, full reparation is made (which the Strasbourg Court has implied into Article 41 of the Convention) has also been incorporated into the HRA by section 8(4), and must be considered.
4.37 Subsection 8(3)(a) requires the court to consider the outcome of any other action brought in respect of the act in question, whether it be a separate head of claim within the same action or a separate action. If 'just satisfaction' has already been obtained by other means then damages should not be awarded under section 8 of the HRA. This too reflects practice in Strasbourg.[63]
4.38 In this connection, in considering the Strasbourg cases, it must be borne in mind that a much wider range of remedial powers is available to the domestic courts than to Strasbourg.[64] Section 8(3) stipulates that the domestic court must take into account other responses that have been made in respect of the unlawful act, including any other relief, remedy or order given by it or another court. A court may find that it is not 'necessary' to award damages because, for example, it is able to grant injunctive relief, or to quash an offending decision.
4.39 Lord Woolf suggested that it might be appropriate for the court not to award damages immediately but to wait and see what response was made to its finding that the victim's Convention rights had been infringed. This proposed principle is uncontroversial. The Act itself makes clear that damages should be no more than "necessary" to afford just satisfaction. The proposal that the court should, if appropriate, "wait and see", by adjourning the just satisfaction claim until the retrial is concluded or the decision retaken, accords with the former Strasbourg practice.[65] Although that has become less common recently, the reasons for the change seem to be ones of practicality. It is clearly much easier for a domestic court to arrange for a suitable adjournment in such circumstances.
(3) The consequences of the decision
the consequences of any decision (of that or any other court) in respect of that act.
It is not entirely clear what is meant by 'the consequences of any decision ... in respect of that act'. It has been argued that this would entitle the court to take into account general policy issues, such as "floodgates" arguments.[66] This may be what Lord Woolf had in mind when referring to the possibility of "numerous victims of the same unlawful act."[67]
4.41 However, it seems unlikely that the sub-section is intended to detract from the basic requirement for just satisfaction to "the person in whose favour it is made". These words direct attention to the needs of the victim. Where the victim has suffered an identifiable and readily measurable loss, and is otherwise held to deserving of a monetary remedy, there seems little scope for the consideration of other wider interests, such as those of potential defendants. To have regard to such considerations would be difficult to reconcile with the general principle of restitutio in integrum adopted by the Strasbourg Court. However, there may be more scope for consideration of such wider policy issues in relation to the amount of awards for non-pecuniary loss, as the Court of Appeal indicated in Heil v Rankin.[68]
4.42 More probably however, subsection (3)(b) refers to the Strasbourg jurisprudence under which the court may hold that some non-judicial act by the state in light of the court's decision may constitute just satisfaction.[69] Such acts might include a change in the State's procedures or legislation,[70] an ex gratia payment or the grant of a pardon, at least where this is coupled with an acknowledgement that the applicant's rights were infringed.[71]
(4) Exercise of the general discretion
(1) A finding of a violation may constitute just satisfaction.[72]
(2) The degree of loss suffered must be sufficient to justify an award of damages.[73]
(3) The seriousness of the violation will be taken into account.[74]
(4) The conduct of the respondent will be taken into account.[75] This may include both the conduct giving rise to the application, and a record of previous violations by the State.
(5) The conduct of the applicant will be taken into account.[76]
4.45 Some of these have approximate equivalents in English law; others do not. Some of the issues we deal with later under the headings of "Heads of Loss"[77] and "Causation".[78] Others relate more closely to the general discretion exercised by the Strasbourg Court and are dealt with here.
(a) Where there is an equivalent rule in English law
4.47 For example, in Part III we saw that the Strasbourg Court may deny damages in a case in which the violation was directly linked to illegal activity by the victim, as in McCann v United Kingdom (the Gibraltar terrorists case).[79] This appears to be very close to the ex turpi causa rule found in English law.[80] This does not always exclude claims by a person who was engaged in criminal activity. English law applies a flexible test. An English court hearing a claim under the HRA might equally refuse to award damages, either by applying the ex turpi causa doctrine or under the general discretion given by section 8 of the Act.
4.49 Thus we also saw in Part III that the Strasbourg Court will consider whether the applicant contributed to the loss as one of the factors that forms part of the Court's overall equitable assessment of the circumstances. The nearest equivalent in English law would seem to be the court's power to reduce damages under the principle of mitigation or under the Law Reform (Contributory Negligence) Act 1945.[81] Thus, a domestic court, wishing to take account of acts or omissions on the part of the claimant which have contributed to the loss, might do this in one of two ways. It might be done by direct reference to whether a full award is necessary to achieve "just satisfaction" under section 8(3) of the HRA.[82] Alternatively it might be done by simply applying one of the familiar principles of domestic law, for example: causation, where the claimant's action was the predominant cause of the loss;[83] the Law Reform (Contributory Negligence) Act 1945, which may apply to claims under section 6 of the HRA;[84] or the duty to mitigate,[85] where it is the victim's action after the violation which is in question.
(b) Cases with no obvious equivalent
4.50 The Strasbourg Court regularly refuses, as a matter of discretion, to award damages (at least for non-pecuniary loss) because of factors which seem to have no equivalent in English or Scottish law. In particular, we have noted the frequent practice in Strasbourg of holding that its own judgment declaring that a violation has occurred may per se be sufficient to constitute just satisfaction.[86] The application of this practice in the domestic courts is made more difficult by the fact that the reasons are rarely explained. Given that the claimant's rights have (ex hypothesi) been violated by a public authority, it may be asked whether a declaration in an English court could ever be itself sufficient to provide just satisfaction.[87]
4.51 This is not to say that damages should always be awarded. The structure of section 8(3) prevents such an outcome, at least where some other form of remedy is appropriate and sufficient.[88] Furthermore, as we have noted,[89] just as the Strasbourg Court may refuse a monetary remedy because of a change of law or administrative practice, so section 8(3)(c) seems to allow the domestic court to take account of similar "consequences" of its decision. This may be particularly appropriate where, as often in judicial review proceedings, the principal purpose of the application is to establish a principle, rather than to obtain a monetary remedy. But were the public authority to refuse even to acknowledge that a violation had occurred, or to refuse to change its practices, an English court might hesitate to say that a mere declaration that the applicant's Convention rights would amount to 'just satisfaction'.
4.52 The domestic courts might wish to follow the Strasbourg approach of treating the issue as to some extent one of degree and denying a monetary remedy where the injury is not of sufficient "intensity".[90] Although there is no direct equivalent in English or Scottish law, at least where the injury is more than de minimis, the discretion under section 8 seems wide enough to permit such considerations.
4.53 Other possible factors in the exercise of the Strasbourg discretion considerations may be more difficult to justify in the domestic context. For example, we have noted the suggestion that the Strasbourg Court may have refused damages on the basis of the status of the victim.[91] As a general principle, the status of the claimant is irrelevant in a claim for damages in tort.[92]
(c) Analogies to the European Court of Justice
(1) the rule of law infringed must have been intended to confer rights on individuals;
(2) breach of this rule of law must have been sufficiently serious; and,
(3) there must have been a direct causal link between the breach and the damage sustained by the applicant.[93]
4.55 The Court held further that the test for determining whether the breach was "sufficiently serious" was whether the Member State had "manifestly and gravely" disregarded the limits of its discretion.[94] It cited a range of factors as relevant to this issue, including the clarity and precision of the rule breached, the measure of discretion left by the rule to the relevant authorities, whether the breach and consequential damage were intentional or voluntary, and whether any error of law was excusable or inexcusable. Fault on the part of the Member State was not, as such, an essential element, but was a relevant factor in deciding whether the breach was sufficiently "serious" in the relevant sense.[95]
4.56 These principles are applied by the English courts when making awards of damages for breaches of Community law. For example, in the Factortame case, in which a United Kingdom Act aimed at protecting British fishing communities from competition by foreign nationals was held to contravene European Union law,[96] the English courts had to consider claims for compensation by the Spanish fishermen affected by the Act. The House of Lords[97] upheld the decisions of the lower courts that the breach was sufficiently serious, since the legislation was a fundamental breach of clear articles of the Treaty, and it was inevitable that it would seriously affect the rights of non-British citizens. The House of Lords acknowledged that the Government had acted in good faith, and on legal advice; but it had taken a calculated risk by choosing to disregard the opinion of the Commission that the Act contravened Community law.[98]
4.57 The Strasbourg Court has not expressly applied a "sufficiently serious" test in its own jurisprudence. On the other hand, as we have seen, it does on occasion refer to the "seriousness" of a violation as a factor in the exercise of its discretion to award damages.[99] The recent case of Smith and Grady v United Kingdom[100] provides a further example. In that case, the Court noted that the investigations and consequent discharges "constituted 'especially grave' interferences with the applicants' private lives" in considering the amount of damages to be awarded to the applicants for non-pecuniary loss.[101]
4.58 Such an approach does not find any express support in the reasoning of the Strasbourg Court, but is not obviously excluded by it. Similarly, although there is no express reference to a criterion of "sufficient seriousness" in the wording of section 8, the discretion appears wide enough to encompass such a development. As Lord Woolf says, the absence of clear principle in the Strasbourg jurisprudence may leave some scope for the national courts to develop their own principles.[102] However, if there is to be a discretion to depart from strict compensation principles, one would expect the parameters of that discretion to be clearly defined.
6. HEADS OF LOSS
(1) Pecuniary and non-pecuniary loss
4.59 The Strasbourg Court traditionally draws a distinction between pecuniary and non-pecuniary loss. This practice is followed reasonably consistently in the Strasbourg case-law (although on occasions a global award is made). One would expect domestic courts to adopt the same approach, having regard to their duty to take into account the principles used by the Strasbourg Court.[103] As we have seen, the Court of Appeal itself, in Heil v Rankin, highlighted the different problems of assessment which arise as between pecuniary and non-pecuniary loss.[104] The development of coherent principles for the award of damages under the HRA is likely to require similar distinctions.
4.60 Apart from the general categories of pecuniary and non-pecuniary loss, it is convenient under this heading to mention particular categories of damages which may arise under English law: for example, nominal, punitive and restitutionary damages.[105]
(2) Pecuniary loss
4.61 As already noted,[106] Strasbourg gives damages for pure economic loss, even if the State is not to shown to have acted intentionally. For example, in Sporrong and Lönnroth v Sweden[107] the applicants were unable either to develop or to sell their properties for a long period of time because of delays in proceedings; they were awarded 800,000 Swedish krona (£76,080) for their pecuniary losses. The domestic Courts may be expected to follow that lead. Subject to that issue, there appears to be no difficulty in principle under this head in following the Strasbourg principles. Cases like Sporrong and Lönnroth v Sweden, and Pine Valley Developments Ltd v Ireland[108] show that in principle, subject to causation, substantial awards may be made. The problems of assessment which have led to a somewhat imprecise "equitable" approach in Strasbourg are largely practical.[109] English courts will be able to apply their ordinary rules of evidence and procedure for the proof of pecuniary loss. English courts will be able to apply their ordinary rules of evidence and procedure for the proof of pecuniary loss. In this context, Lord Woolf's suggestion that awards should be "on the low in comparison to tortious claims" would seem to require a departure from the principle of restitutio in integrum applied by the Strasbourg Court. As we have noted, like awards in tort, Strasbourg awards are designed to reflect the full amount of the loss.[110]
4.62 As we have noted,[111] the Strasbourg Court regularly awards damages to compensate the applicant's costs and expenses as a separate head of loss. Again these present little difficulty for domestic Courts, which will be normally be able to deal with them under ordinary rules for costs.[112]
(3) Non-pecuniary loss
4.63 We have observed in Part III[113] that the Strasbourg Court's awards for nonpecuniary losses cover a wide range of intangible injuries. The categories of loss which have been compensated under this head include pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation and anxiety. Comparison with English law will be discussed in more detail in paragraphs 4.69 to 4.77 below. We also noted that the Strasbourg Court is prepared to recognise 'corporate anxieties' in a way which is unfamiliar in English law.
4.64 We have also seen that the Strasbourg Court is prepared to give compensation for loss of relationship. For example, in the child-care cases involving breaches of Article 8, the Strasbourg Court has awarded damages for loss of relationship, including deprivation of the love, companionship and support of a child. In these cases, the Court is awarding damages for a kind of loss which the English common law does not recognise following the abolition of claims for loss of society.[114] The nearest modern equivalent appears to be the claim for bereavement damages under section 1A of the Fatal Accidents Act 1976.[115]
4.65 In respect of injuries which are similar to those for which domestic law has awarded damages (for example, unlawful detention under Article 5 and false or wrongful imprisonment), the domestic courts are likely to rely on the domestic figures in awarding damages for non-pecuniary injury under section 8.[116] However, not all injuries suffered as a result of a breach of the Convention will have a domestic equivalent (for example, loss of relationship). Appropriate amounts will have to be determined by the United Kingdom courts.
4.66 It may be reasonable to expect awards for non-pecuniary loss under the HRA to be kept to "moderate" levels, to use Lord Woolf's term.[117] This proposal is consistent with the general experience that the Strasbourg Court "has not proved unduly generous" in awarding compensation.[118] In Heil v Rankin,[119] the Court drew attention to observations of the Canadian Supreme Court in relation to the assessment of non-pecuniary loss:
[T]his is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to wildly extravagant claims...[120]
4.67 This caution was echoed by the Court of Appeal:
The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.[121]
Thus:
Awards must be proportionate and take into account the consequences of increases in the awards of damages on defendants as a group and society as a whole.[122]
This required the court to have regard to factors such as the fact:
that our decision will have a significant effect on the public at large, both in the form of higher insurance premiums and as a result of less resources being available for the NHS.[123]
4.68 Similar considerations will apply under the HRA. However, in this context, as in
that of pecuniary loss, it is hard to see why awards under the HRA should be "on
the low side by comparison with tortious awards".[124] In those cases where there
is a close common law analogy, for example wrongful detention, the tariffs
established in cases such as Thompson v Commissioner of Police of the Metropolis,[125]
would appear equally applicable, subject of course to account being taken of the
facts of particular cases.[126] But there is no reason to think that the courts will
find any difficulty in developing appropriate tariffs for standard types of case.[127]
(4) Anxiety, distress and frustration.
4.69 English law allows compensation for non-pecuniary loss such as pain and suffering where there has been a physical injury; but in respect of tortious actions, the general rule is that "[m]ental distress is not by itself sufficient damage to ground an action."[128] In respect of certain torts, damages for mental distress can be recovered in particular circumstances under the rubric of "aggravated damages."[129] These seem designed to compensate the claimant for the additional distress caused by the way in which the tort was committed.[130] One of the preconditions to the award of aggravated damages stated by Lord Devlin in Rookes v Barnard[131] is that the conduct of the defendant must have been offensive, or accompanied by malevolence, spite, insolence or arrogance (or, presumably, have been the kind of oppressive conduct which would give rise to punitive damages).
4.70 As Lord Woolf recognised,[132] the Strasbourg Court awards damages for nonpecuniary losses such as pain and suffering, anxiety, distress and frustration in a wider range of cases. It does sometimes take into account the seriousness of the violation and the conduct of the respondent State in awarding damages, so that the Strasbourg principles are not inconsistent with the grant of what are in effect aggravated damages. However, it also regularly awards damages for nonpecuniary losses, including distress, anxiety and injury to feelings, even when there are no "aggravating features". Section 8(4) of the HRA would suggest that English courts should adopt the same approach.
(5) Exemplary or punitive damages
4.71 Exemplary (or punitive) damages seek to punish the defendant for the wrong committed.[133] They are not concerned to compensate and are therefore not referable to any loss suffered by the claimant. Punitive damages are, however, usually awarded in addition to compensatory damages.
4.72 We have seen, that the Strasbourg Court has never yet awarded punitive damages[134] and on more than one occasion has refused to do so.[135] Moreover, it seems clear for other reasons that even in England punitive damages will not be available under the HRA. Apart from other factors, the preconditions for an award of punitive damages under English law include the principle that, in the absence of specific statutory provision, they will only be awarded if the tort in question is one for which punitive damages had been awarded prior to Rookes v Barnard.[136] As an action under the HRA does not satisfy this requirement, and no provision for punitive damages is made in the Act itself, there seems no basis for such awards.[137]
(6) Nominal damages
4.74 Nominal damages may be awarded in English law in cases where there is no loss.[138] However, they have not featured in Strasbourg practice, and in a number of cases the Strasbourg Court has explicitly refused to make such an award.[139] Given that domestic courts will have the power to make a declaration under the HRA, there seems little reason for making such awards.[140]
(7) Restitutionary damages
4.75 In contrast to compensatory damages, which are measured by reference to the applicant's loss, restitutionary damages are measured by reference to the defendant's gain, or a proportion of it.[141] Thus a defendant who has made wrongful use of the claimant's property may be made to pay a reasonable sum for that use even though the claimant would not have used the property itself at the time and has suffered no identifiable loss.[142] Thus, the idea underpinning restitutionary damages is the notion that one should not profit from a wrong.
4.76 Restitutionary damages have been awarded in English law for many years but without that label. Now they are increasingly recognised as an alternative to compensatory damages.[143] A claimant must elect one or the other as both cannot be recovered together. Hitherto, restitutionary damages have only been awarded in English law for proprietary torts; namely, conversion, trespass to goods, trespass to land and nuisance. Restitutionary remedies, in the form of an account of profits, are commonly awarded for infringement of intellectual property rights.[144] It is unclear whether or not restitutionary damages are available for non-proprietary torts.[145] As the House of Lords has recently held that the victim of a breach of contract may be able to obtain an account of profits in exceptional circumstances, if the normal remedies of compensatory damages, specific performance and injunction will not provide an adequate remedy, it may well be that an account of profits or other restitutionary measures of damages will also become more widely available in tort.[146]
4.77 The Strasbourg Court has not made an award of restitutionary damages. In one case it made an award which might appear to go beyond compensating the applicants.[147] However, this may be simply because appropriate cases for restitutionary damages have not yet been presented to the Strasbourg Court. It is conceivable that, were a clear case to arise,[148] the Court would find that just satisfaction required an account of profits or an award of restitutionary damages.
Even if this must remain speculative, courts in the United Kingdom may be able to award an account of profits or another form of restitutionary damages if that is the only way in which to afford a "just and appropriate" remedy, whether or not it falls within "just satisfaction", as interpreted by Strasbourg.
7. CAUSATION
(1) Causal link
4.78 As we have seen in paragraph 3.58 above, the need for a clear causal link is fundamental to Strasbourg case-law. The test corresponds closely to the "but for" test in domestic law - the principle that the claimant must prove that "but for" the wrong, he or she would not have suffered the loss.[149]
4.79 This may necessitate a consideration of what the claimant's position would have been had no violation occurred. As Lord Woolf suggested in his fifth principle, awards should be restricted to compensating for what has happened "so far as the unlawful conduct exceeds what could lawfully happen". Thus damages for unreasonable delay in holding a hearing (in breach of Article 6) should be limited to the excess over a reasonable time. This requires the court to make a judgment as to what a reasonable time would have been.[150]
4.80 In addition to the principles of causation, domestic courts apply the test of remoteness to restrict further the availability of compensatory damages for many types of claim. Compensatory damages will only be awarded for losses that are not too remote. In England, the relevant test is that of reasonable foreseeability of the loss in respect of which damages are claimed must be a reasonable foreseeable consequence of the defendant's wrong.[151] The rules vary, however, between different torts, based on the culpability of the wrongdoer. For example, in respect of the tort of deceit, and arguably in respect of all intentional torts, a wrongdoer will be liable for all consequent losses as "[c]onsequences intended by the defendant will never be too remote."[152]
(2) Apportioning responsibility where judicial acts are involved
4.82 A potential difficulty is the effect of the immunity given under the HRA for judicial acts or omissions. As has been seen,[153] although the term "public authority" includes a "court or tribunal", remedies in respect of a judicial act may be brought only by exercising a right of appeal or judicial review, and damages may not be awarded, other than as required by Article 5(5) (unlawful detention). Thus, for example, violations of Article 6, by unreasonable delay caused by the courts,[154] are not the subject of damages under the HRA.
(1) In H v United Kingdom,[155] the Strasbourg Court awarded the applicant £12,000[156] for non-pecuniary loss under Articles 6(1) and 8, arising from delays in adoption and access proceedings relating to her child. Although the proceedings as a whole had taken just over two years, the crucial period was a delay of 5 months in the provision of the Council's evidence, at a time when they had already placed the child for adoption (without informing the applicant). This delay was described by the High Court as "deplorable" and "seriously prejudicial" to her case;[157] the Local Ombudsman found "maladministration", but thought it "very unlikely indeed" that it affected the outcome of the case.[158] Although the Strasbourg Court absolved the other parties (including the domestic court) from criticism, it found that overall the proceedings were not concluded within a "reasonable time".[159]
(2) EDC v United Kingdom[160] was a Commission decision which was settled without coming to the Strasbourg Court. It concerned an alleged breach of Article 6(1) arising from delays in proceedings in the High Court under the Company Directors' Disqualification Act 1986. Delays had been caused by the decision to await the outcome of criminal proceedings against other respondents. The proceedings extended over 4 years, before the High Court granted a stay in January 1996. The Commission did not question the decision to await the trial; but it criticised the Official Receiver's delay in starting proceedings, and the failure of "the competent authorities" to fix a trial date until 14 months after the conclusion of the criminal trial. The Commission found that overall the period exceeded a "reasonable time", observing that it was "up to states to organise their legal systems" so as to secure compliance with Art 6.[161]
4.84 One can envisage the problems of a claim under the HRA in a similar case, where the decision-making process has involved court proceedings to which a public authority is a party, and the court itself is found partly responsible for the delay. Only that part of the delay attributable to public authorities other than the court will attract damages. Presumably, therefore, it will be necessary to apportion responsibility between the court and any other public authorities found responsible. In H v United Kingdom, for example, it appears that the local authority was principally responsible for the delay, and would therefore be at risk of paying all the damages. In EDC v United Kingdom, the apportionment of blame might be much more difficult.[162]
(3) Speculative losses
4.85 The "loss of opportunity" cases in Strasbourg seem similar to domestic claims for loss of a chance. Where the loss in question concerns a hypothetical event, damages may be awarded for the loss of a chance. Such damages do not comprise the full amount that would be awarded were the claimant able to prove on the balance of probabilities that, but for the wrong, some event favourable to him would have occurred.[163] Rather, such damages are awarded in proportion to the percentage chance of loss.[164]
4.86 Given the inconsistencies in the Strasbourg case-law,[165] it is difficult to see how domestic courts will derive useful assistance from it as to when damages should be awarded for loss of opportunity. It is submitted that it should be treated as a purely factual question: if the violation of the claimant's Convention rights resulted in the loss of a chance of more beneficial treatment or consequences, damages should be awarded for loss of that chance upon normal common law principles.[166]
4.87 In practice, as Lord Woolf suggests,[167] the element of speculation may be lessened in the domestic context, by the availability of other remedies. For example, where an applicant has been convicted of a crime by a tribunal which was not impartial in breach of Article 6(1), a retrial complying with the Convention will show whether or not the violation affected the outcome of the original proceedings.
8. OTHER ISSUES
(1) Concurrent liability
4.88 An issue which is related to the treatment of other responses to a violation, but which only arises for the domestic court, is concurrent liability. There is no question of concurrent liability when a claim reaches the Strasbourg Court because of the rule that domestic remedies must first be exhausted. Where there are causes of action under the HRA and under existing domestic law (for example in tort),[168] remedies (including damages) obtained at common law must form part of the assessment of just satisfaction under section 8. If there are heads of loss which are not fully compensated by the common law, the issue of damages under section 8 will still be a live issue.[169] If full restitutio is achieved in a concurrent action it will not be appropriate to award damages under section 8. This is wholly consistent with existing domestic law on concurrent liability; the claimant must not be allowed to recover damages in both actions for the same loss.[170]
(2) Interest
4.89 We saw in Part III that the Strasbourg Court normally awards interest on damages for pecuniary loss.[171] Frequently the interest is included in a global award, though the rate used to calculate the interest may be stated.[172] Since the English court need only take into account the principle applied by the Strasbourg Court,[173] which is clearly to award interest on awards, it need not concern itself with the details of the Strasbourg practice. It may either exercise its general power under section 8(1) to fashion a just and appropriate remedy to include interest in a global award or, which would seem simpler, exclude interest from the calculation of damages and exercise its statutory power to award interest.[174]
4.90 The Strasbourg Court does not seem to award interest on damages for nonpecuniary loss,[175] but it is doubtful whether this is a matter of principle. It may be no more than a reflection of the same concern which leads the English courts to give only moderate awards of interest[176] on this type of loss, namely that the award will be at figures prevailing at the time of trial so that the interest rate used need not include any element for loss in the value of money.[177] We therefore consider that English courts making awards under section 8 of the HRA are free to follow their normal practice in relation to interest on damages for nonpecuniary loss.
4.91 We saw that the Strasbourg Court now also awards default interest on judgment debts which remain unpaid for over three months. It is doubtful whether this is to be regarded as a matter of "damages" so that section 8(4), which requires the English court to take the Strasbourg case law into account, applies; but even if that section does apply, it is again only the principle which is relevant. The normal statutory rules on interest on judgment debts therefore apply.[178]
9. CONCLUSION
4.94 There are likely to be some cases under the HRA which present heads of damage that do not fit easily with the established rules of tort. We saw, for example, that in the "child care" cases the Strasbourg Court awards damages for loss of relationship.[179] There appears to be no equivalent in domestic law. Here the United Kingdom courts will need to fashion a remedy which is just and appropriate and which affords just satisfaction to the victim. As they must take into account the principles used by the Strasbourg Court, we would expect them to award compensation in such cases. In establishing appropriate tariffs, they will no doubt have in mind the awards made in Strasbourg, the awards made in loosely parallel cases such as bereavement,[180] and the general concerns referred to in the judgment of the Court of Appeal in Heil v Rankin[181] and in Lord Woolf's suggested principles.[182]
4.95 There are points on which the principles used to assess damages in the domestic courts, and those used by the Strasbourg Court, differ in matters that are less fundamental. For example in the Strasbourg Court damages for anxiety or mental distress seem to be awarded more readily than in claims in tort. Here the domestic courts will need to decide what approach to take: whether to award such damages whenever the victim of a violation of Convention rights suffers anxiety or mental distress, or only in "aggravated" cases.[183]
Ü Þ
Note 1 See para 2.15 above. [Back] Note 2 See paras 2.11 - 2.13 above. [Back] Note 3 The court must be one that has the power to award damages. See s 8(2), discussed above in paras 2.16 - 2.18 above. [Back] Note 4 Hansard (HL) 3 November 1997, vol 582, col 1232. See also the Government’s White Paper, Rights Brought Home: The Human Rights Bill (1997) Cm 3782 para 2.6. [Back] Note 5 The view that the principles of the Strasbourg Court need only be taken into account and not applied by domestic courts is supported in the academic literature. See for example A Lester and D Pannick (eds), Human Rights and Practice (1999) para 2.8.4 n 1; S Nash and N Furse, Essential Human Rights Cases (1999) p 23. An analogous but more general obligation can be found in s 2 of the HRA which requires domestic courts to take into account the Strasbourg jurisprudence in determining questions arising in connection with Convention rights. [Back] Note 6 We will discuss below whether a court might use its power under s 8(1) to provide a “just and appropriate” remedy to award damages which go beyond the “just satisfaction” damages awarded in Strasbourg; see paras 4.75 - 4.77 on restitutionary damages. [Back] Note 7 [2000] 2 WLR 1173. [Back] Note 8 Damages for Personal Injury: Non-Pecuniary Loss (1999) Law Com No 257. [Back] Note 9 A special Court of 5 judges (all with experience of personal injury litigation), led by Lord Woolf MR, had been arranged to respond to the Law Commission report and give guidance to the lower Courts: see [2000] 2 WLR 1173, 1180-1182. [Back] Note 10 [2000] 2 WLR 1173, 1184 at para 20. See paras 4.66 - 4.67 below for further discussion of the case. [Back] Note 11 Lord Woolf referred to the well-known words of Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (quoted at para 4.14 below). [Back] Note 12 Heil v Rankin [2000] 2 WLR 1173, 1185. [Back] Note 13 [2000] 2 WLR 1173, 1185 citing Wells v Wells [1999] 1 AC 345, 394, per Lord Clyde. [Back] Note 14 The “analytical approach” adopted in Wells v Wells [1999] 1 AC 345 is given as an example. [Back] Note 15 Heil v Rankin [2000] 2 WLR 1173, 1185-1186. As the judgment explains, this “jury question” is normally decided by judges, consistency being achieved by reference to the Guidelines for the Assessment of General Damages in Personal Injury cases prepared by the Judicial Studies Board; or, where juries are still involved, by tariffs laid down by the courts (as in Thompson v Commissioner of Police of the Metropolis [1998] QB 498, referred to at 3.10 note 15 above)). [Back] Note 16 Paras 3.19 - 3.21 above. [Back] Note 17 See paras 3.31 - 3.57 above. [Back] Note 18 See above, paras 2.22 - 2.25. [Back] Note 19 See above, paras 3.54 - 3.56. [Back] Note 20 This aim is shared by many rights-based provisions: see for example Carey v Piphus (1978) 435 US 247, 254 and Schachter v Canada [1992] 2 SCR 679, 725-726. [Back] Note 21 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 per Lord Blackburn. The question of non-compensatory damages in tort is discussed below, paras 4.71 - 4.73 and 4.75 - 4.77. [Back] Note 22 Lester and Pannick describe the remedy under the HRA as “a new public law tort of acting in breach of the victim’s Convention rights” [2000] 116 LQR 380, 382. [Back] Note 23 See for example Anthony Lester QC Fundamental Rights - the United Kingdom Isolated? [1984] PL 46. As at that date he was able to list 24 Commonwealth countries with Bills of Rights generally following the form of the Convention: [1984] PL 46, 56 n 51. [Back] Note 24 [1979] AC 385. The case concerned a claim by an advocate who had been imprisoned for contempt of court by the judge, without (as the Privy Council found) being given a proper opportunity to be heard. [Back] Note 25 [1979] AC 385, 399. [Back] Note 26 [1979] AC 385, 400. Lord Hailsham, dissenting, thought that if, as the majority held, s 6 of the Constitution gave rise to an action for damages, in many respects the damages would need to be assessed by reference to principles of tort: ibid p 410. [Back] Note 27 [1979] AC 385, 400. [Back] Note 28 Lord Diplock was seeking to explain why the decision did not involve any departure from the “rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity” [1979] AC 385, 399. [Back] Note 29 HRA, s 9, see paras 2.26 - 2.27 above. [Back] Note 30 See for example Allenet de Ribemont v France A 308 (1995), 20 EHRR 557, discussed at para 6.131 below. [Back] Note 31 [1994] 3 NZLR 667. The case concerned an unlawful search of a private house by the police. [Back] Note 32 The court seems to have been concerned to avoid labelling the wrong done as a tort since the state would then have been immune from action by reason of the Crown Proceedings Act 1950, s 6(5). To this extent the decision that the action was not one in tort may be seen as instrumental. [Back] Note 33 [1994] 3 NZLR 667, 678, per Cooke P. [Back] Note 34 The description may be more useful by way of analogy than as a precise description (see para 4.49 n 84 below). The HRA does not in terms impose a duty on authorities to comply with the Convention, but makes it “unlawful” for them to fail to do so (s 6), and provides a remedy by way of civil proceedings for that failure (s 7). For the essential elements of the tort of breach of statutory duty, see Clerk & Lindsell on Torts (17th ed 1995) para 11-06 ff. Cf, for example, the Consumer Protection Act 1987, s 41, which expressly refers to a “duty” contravention of which is “subject... to incidents applying to actions for breach of statutory duty...”. [Back] Note 35 The ex turpi causa principle: para 4.47 below; and contributory negligence at para 4.49 below. [Back] Note 36 See below, para 4.71. [Back] Note 37 See para 3.47 above. [Back] Note 38 See Clerk & Lindsell on Tort (17th ed 1995) paras 7.54 - 7.95. On the other hand there is no general rule against recovery of economic loss in an action for breach of statutory duty: see Clerk & Lindsell on Tort (17th ed 1995) para 11.23. [Back] Note 39 See eg Sporrong and Lönnroth v Sweden A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction), discussed at paras 6.231 - 6.232 where substantial damages were paid for pecuniary loss caused by delays in removing planning restrictions. [Back] Note 40 See further below, para 4.64. [Back] Note 41 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co, The Wagon Mound [1961] AC 388 (PC). [Back] Note 42 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; Smith New Court Securities v Citibank NA [1997] AC 254 (HL). [Back] Note 43 Alliance & Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462. [Back] Note 44 R v McGillivary (1990) 56 CCC (3d) 304, 306 per Rice JA. Fundamental rights are protected by the Canadian Charter of Rights and Freedoms. Section 24(1) of the Charter allows the courts to grant remedies which are “appropriate and just in the circumstances” to anyone whose rights have been infringed. [Back] Note 45 “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds), Judicial Review in International Perspective: II (2000), pp 429 - 436. [Back] Note 46 [2000] 2 WLR 1173. [Back] Note 47 “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds), Judicial Review in International Perspective: II (2000), p 432. [Back] Note 51 Ibid p 433, citing Ackerman J in Fose v Ministry of Safety and Security (1997) 3 SA 786, 808. There is a close parallel with the language used by Lord Woolf in Heil v Rankin [2000] 2 WLR 1173, see below at para 4.67. [Back] Note 52 He referred to Cases C-6/90 and C-9/90, Frankovitch v Italy [1991] ECR I-5357 and R v Secretary of State, ex p Factortame Ltd and others (No 5) [2000] AC 524. See paras 4.54 - 4.58 below. [Back] Note 53 “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds), Judicial Review in International Perspective: II (2000), p 433. [Back] Note 54 For example, an order to retake the decision, an injunction to restrain the unlawful conduct, or a declaration to establish its unlawfulness. [Back] Note 55 He distinguishes such awards from awards for “anxiety, distress, injured feelings or other forms of non-pecuniary loss”, which he regards as acceptable in accordance with Strasbourg practice. [Back] Note 56 Thus, he suggests, “if... a retrial is necessary of a criminal offence the decision as to whether to make an award of damages could well depend on the outcome of the retrial.” [Back] Note 57 Cf Cooke P’s caution against “extravagant awards”: Simpson v Attorney General, Baigent’s case [1994] 3 NZLR 667, 678. See above at para 4.19. [Back] Note 58 Thus damages for unreasonable delay in holding a hearing (in breach of Article 6) should be limited to the excess over a reasonable time: see below para 4.79. [Back] Note 59 In some torts nominal damages may be recovered even though no loss has been shown: see below para 4.74. [Back] Note 60 Subject also to the rules of remoteness and mitigation. [Back] Note 61 See above, paras 3.19 - 3.21. [Back] Note 62 See above, para 3.18. [Back] Note 63 See above, paras 3.32 - 3.34. [Back] Note 64 It has been suggested that new remedies will be developed by the courts. See S Grosz, J Beatson and P Duffy, Human Rights: The 1998 Act and The European Convention (2000), para 6.22. [Back] Note 65 See L-E Pettiti, E Dacaux and P-H Imbert (eds), La Convention Européenne des Droits de L’Homme (2nd ed 1995), p 824, cited in footnote 64 to para 3.32 above. A good example is Barberà, Messegué and Jabardo v Spain A 285-C (1994) (just satisfaction) where there was a stay of proceedings in Strasbourg pending a retrial, which resulted in acquittal. The Strasbourg Court then made awards of between 4 million (£19,410) and 8 million pesetas (38,810) to cover pecuniary and non-pecuniary loss: see Part VI para 6.101. [Back] Note 66 “The most likely interpretation is that when contemplating an award of damages, the courts should take into account that they might be opening the ‘floodgates’... To make an award of damages in respect of that act may mean that hundreds, even thousands of potential applicants will have a similar claim representing a considerable strain on the public purse”: M Amos, “Damages for breach of the Human Rights Act 1998” [1999] EHRLR 178, 186-187, citing, inter alia, X v Bedfordshire County Council [1995] 2 AC 633, 749-51 per Lord Browne-Wilkinson. [Back] Note 67 See para 4.29 above. In Norris v Ireland A 142 (1988), 13 EHRR 186, a successful challenge to Irish laws against homosexual acts in private (see Part VI para 6.176), the Strasbourg Court in refusing damages referred to “the effects [of the decision] extending beyond the confines of this particular case, especially since the violation found stems directly from the contested provisions and not from individual measures of implementation” (para 50). However, in that case there had been no prosecution, and no direct damage. Cf ADT v United Kingdom Application no 35765/97, 31 July 2000 where conviction for such an offence in the United Kingdom led to an award of £10,000 for non-pecuniary loss (see paras 6.177 - 6.178). [Back] Note 68 See below paras 4.66 - 4.67. Note, however, that in Smith and Grady v United Kingdom
Application nos 33985/96 and 33986/96, 25 July 2000 the Strasbourg Court made
substantial awards for pecuniary and non-pecuniary loss without any reference to claims by
others affected (see paras 6.179 - 6.181 below). In practice, the ‘short time-limits’ for
claims under the Convention may mitigate any ‘floodgates’ effect (para 3.17 n 27). [Back] Note 69 See above paras 3.32 - 3.34. [Back] Note 70 See for example Dudgeon v United Kingdom A 59 (1983), 5 EHRR 573 (just satisfaction),
at para 6.176 below. [Back] Note 71 See paras 3.34 - 3.36 above. [Back] Note 72 See paras 3.38 - 3.43 above. [Back] Note 73 See para 3.44 above. [Back] Note 74 See paras 3.45 - 3.46 above. [Back] Note 75 See paras 3.47 - 3.53 above. [Back] Note 76 See paras 3.54 - 3.57 above. [Back] Note 77 See paras 4.59 - 4.77 below. [Back] Note 78 See paras 4.78 - 4.87 below. [Back] Note 79 A 324 (1995), 21 EHRR 97. See para 3.56 above. [Back] Note 80 See Clunis v Camden and Islington Health Authority [1998] QB 978; Standard Chartered Bank v Pakistan National Shipping Corporation [2000] 1 Lloyd’s Rep 218 (CA). [Back] Note 81 This latter analogy is not exact, since neither that Act, nor the doctrine of contributory negligence at common law, applies to all intentional torts: Clerk & Lindsell on Torts (17th ed 1995) para 3.19; Alliance & Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462. [Back] Note 82 See Lord Woolf’s 6th principle: failure to take “preventative or remedial action” will reduce the damages: para 4.31 above. [Back] Note 83 See eg Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370 where the claimant workman, who was injured by his careless use of a trestle, was held to have caused the accident, even though his need to use the trestle was the result of a breach by the defendant company of its contractual duty to provide a stepladder. [Back] Note 84 We argued earlier that s 6 creates a new form of action for breach of statutory duty. The Law Reform (Contributory Negligence) Act 1945 applies to claims for breach of statutory duty. If the cause of action is properly described as “breach of statutory duty” (see para 4.20 note 34 above), the 1945 Act will apply, since that is one of the causes of action included in the definition of “fault” (s 4). Otherwise, it seems, the Act will not apply. This is because s 4 of that Act defines fault on the part of the claimant as an act which “would, apart from this Act, give rise to the defence of contributory negligence”. This is a reference to the law on contributory negligence before 1945 and obviously does not include actions under the HRA. Cf Forsikringsaktielskapet Vesta v Butcher (No 1) [1989] 2 AC 852, 862 ff; Alliance & Leicester Building Society v Edgestop Ltd [1993] 1 WLR 1462, 1174. The point is likely to be academic, since the discretion under s 8 seems wide enough to enable the principles of the 1945 Act, where appropriate, to be applied by analogy). [Back] Note 85 Clerk & Lindsell on Torts (17th ed 1995) paras 21.214 - 21.224. [Back] Note 86 See Part III paras 3.38 - 3.43. [Back] Note 87 Although Lord Woolf refers to the wide Strasbourg discretion, he does not suggest that the domestic courts should be unfettered. He appears implicitly to accept that, subject to his eight principles, a claimant who establishes a breach and consequent loss, should be entitled to at least “moderate” damages. [Back] Note 88 Lord Woolf’s principle (1): see para 4.31 above. [Back] Note 89 Para 4.42 above, citing Dudgeon v United Kingdom A 59 (1983), 5 EHRR 573 (just satisfaction). [Back] Note 90 See para 3.44 citing Silver v United Kingdom A 61 (1983), 5 EHRR 347 (merits), A 67 (1983), 6 EHRR 62 (just satisfaction). [Back] Note 91 Para 3.57 above. [Back] Note 92 So, for instance, prison authorities owe the normal duty of care for the safety of inmates. See, for example, Reeves v Commissioner of Police of the Metropolis [1999] 3 WLR 363. See Part V para 5.5(5) below, in relation to Scots law. [Back] Note 93 Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Germany, R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. [Back] Note 94 [1996] ECR I-1029, para 56. [Back] Note 95 [1996] ECR I-1029, paras 78-79. [Back] Note 96 Case C-221-89 R v Secretary of State for Transport, ex p Factortame Ltd (No 3) [1992] QB 680. [Back] Note 97 R v Secretary of State for Transport, ex p Factortame Ltd and others (No 5) [2000] AC 524. [Back] Note 98 [2000] AC at 541-7, per Lord Slynn. [Back] Note 99 Part III para 3.45 - 3.46 above. [Back] Note 100 Application nos 33985/96 and 33986/96, 25 July 2000. See paras 6.179 - 6.181 below for a full discussion of the case. [Back] Note 101 The applicants were awarded £19,000 each in respect of non-pecuniary loss. [Back] Note 102 It has been suggested that the “sufficiently serious” test could be deployed by English courts in cases involving claims in tort (in particular, in negligence) against public authorities in general. See P Craig “Once More Unto the Breach: the Community, the State and Damages Liability” in M Andenas (ed) English Public Law and the Common Law of Europe (1998), ch 8; P Craig “The Domestic Liability of Public Authorities in Damages: Lessons from the European Community?” in J Beatson and T Tridimas, New Directions in European Public Law (1998), p 75; M Andenas and D Fairgrieve “Sufficiently Serious? Judicial Restraint in Tortious Liability of Public Authorities and the European Influence” in Andenas (ed) English Public Law and the Common Law of Europe (1998), ch 14. [Back] Note 104 [2000] 2 WLR 1173; see paras 4.7 - 4.9 above. Having regard to what was said there, it is unclear why Lord Woolf suggested that there was “no reason” for this distinction (his principle (7), para 4.31 above). [Back] Note 105 Discussed below at paras 4.74; 4.71 - 4.73 and 4.75 - 4.77 respectively. [Back] Note 106 See para 4.22 above. [Back] Note 107 A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction). See paras 6.231 - 6.232 below. [Back] Note 108 A 222 (1991), 14 EHRR 319 (merits); A 246-B (1993), 16 EHRR 379 (just satisfaction) (see paras 6.219 - 6.221). See also the recent decision on just satisfaction in Smith and Grady v United Kingdom (2000) Application nos 33985/96 and 33986/96, 25 July 2000 discussed in paras 6.179 - 6.181 above. [Back] Note 109 More recently the Strasbourg Court has been able to adopt a more precise approach in response to, for example, actuarial evidence as the value of a claim for loss of earnings. See Salman v Turkey Application no 21986/93, 27 June 2000 (see para 6.11); Ilhan v Turkey Application no 22277/93, 27 June 2000 (see para 6.23). [Back] Note 110 See para 4.34 above; cf Lord Woolf’s 4th principle in para 4.31 above. [Back] Note 111 Paras 3.29 - 3.30 above. [Back] Note 112 As suggested by Lord Woolf’s 8th principle; see para 4.31 above. [Back] Note 113 Paras 3.26 - 3.28 above. [Back] Note 114 Administration of Justice Act 1982, s 52 and Law Reform (Miscellaneous Provisions) Act 1970, ss 4 and 5. See further McGregor on Damages (16th ed 1997) para 91; NV Lowe and G Douglas, Bromley’s Family Law (9th ed 1998) pp 61 - 62. [Back] Note 115 This aspect of the Strasbourg case-law has not seem to have been highlighted by the United Kingdom commentators. In D Shelton, Remedies in International Human Rights Law (1999) p 227 the author discusses this form of compensation under human rights instruments generally:
Loss of consortium when one is deprive of a spouse may include loss of love and companionship as well as services in the home, society and sexual relations. The impairment of any of these gives a right to damages. Interference with parent/child relations may lead to damages for loss of companionship, comfort, guidance, affection and aid. All these factors represent the irreplaceable intangibles of family life.
[Back] Note 116 See paras 4.26 above. [Back] Note 117 See above, para 4.31. [Back] Note 118 K Reid, A Practitioner’s Guide to the European Convention on Human Rights (1998), p 398. [Back] Note 119 [2000] 2 WLR 1173, 1184. [Back] Note 120 Andrews v Grand & Toy Alberta Ltd (1978) 83 DLR (3d) 452, 476, per Dickson J. [Back] Note 121 [2000] 2 WLR 1173, 1186. [Back] Note 122 [2000] 2 WLR 1173, 1188-1189. [Back] Note 123 [2000] 2 WLR 1173, 1187. [Back] Note 124 See above, para 4.61. [Back] Note 125 As we have noted above (para 3.10 n 15), there is some anecdotal evidence that these tariffs were taken into account by the Strasbourg Court itself in Perks v United Kingdom Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33. [Back] Note 126 See R v Governor of Brockhill Prison ex p Evans (No 2) [1999] 2 WLR 103, 116 (CA). In the House of Lords’ decision on that case Lord Hope noted that the Court of Appeal were performing a legitimate function
in taking the opportunity to provide guidance, in an area where guidance was almost entirely lacking, as to [the] approach which should be taken in the making of such awards, as to some of the factors to be taken into account in the assessment and as to the general level of award which should be made in similar cases.
[Back] Note 127 See for example, the levels of general damages established by case-law for discomfort, inconvenience and injury to health arising out of breach of repairing covenants in residential tenancies: Wallace v Manchester City Council (1998) 30 HLR 1111 CA. Some categories of case, for example those relating to administrative delay (see eg Sporrong and Lönnroth v Sweden A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction) at paras 6.231 - 6.232), are similar to those dealt with currently by the Local Commissioners for Administration. For examples of the compensation recommended in typical cases, see Local Government Ombudsman, 1998 Digest of Cases (http://www.open.gov.uk/lgo/digest.htm). [Back] Note 128 McGregor on Damages (16th ed 1997) para 90. [Back] Note 129 See further Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, Part II,passim. It appears that aggravated damages may not be recovered in an action for negligence: Ibid, para 2.42. [Back] Note 130 This seems to be the correct explanation, although the point is not free from difficulty: Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, paras 2.15-2.38. The Report recommended the enactment of legislation making it clear that aggravated damages may be awarded only to compensate a person for his or her mental distress, and not to punish the defendant for his conduct: Law Com No 247, para 2.42. It was also recommended that wherever possible the label “damages for mental distress” should be used instead of the phrase “aggravated damages” (ibid). [Back] Note 131 [1964] AC 1129, 1232. [Back] Note 132 Lord Woolf, “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds), Judicial Review in International Perspective: II (2000), p 434, referring to the cases listed in K Starmer, European Human Rights Law (1999) p 65 - 66. Starmer argues that the damages awards in these cases might be characterised as examples of “aggravated damages”:
So far as aggravated damages are concerned, it could be argued that the Court’s broad approach to non-pecuniary loss in effect recognises their legitimacy, particularly where it has made awards to compensate for frustration, distress and feelings of helplessness. (Starmer, European Human Rights Law (1999) p 61. See also Amos, “Damages for breach of the HRA 1998” [1999] EHRLR 178, 192. [Back] Note 133 Rookes v Barnard [1964] AC 1129, 1121 per Lord Devlin; AB v South West Water Services Ltd [1993] QB 507, 529 per Sir Thomas Bingham MR. For a description of the present law see Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, Part IV. [Back] Note 134 See above, para 3.47. [Back] Note 135 See K Starmer, European Human Rights Law (1999) p 61; M Amos, “Damages for breach of the Human Rights Act 1998” [1999] EHRLR 178, 192. See also the dissenting judgment of Judge Matscher in Gaygusuz v Austria 1996-IV p 1129, 23 EHRR 364 (see further para 6.217 below). [Back] Note 136 See AB v South West Water Services Ltd [1993] QB 507. The torts which satisfy this requirement are malicious prosecution, false imprisonment, assault and battery, defamation, trespass to land or to goods, private nuisance and tortious interference with business: See Aggravated, Exemplary and Restitutionary Damages (1993) Law Commission Consultation Paper No 132, paras 3.57 - 3.64. [Back] Note 137 See M Amos, “Damages for breach of the Human Rights Act 1998” [1999] EHRLR 178, 193. In Fose v Minister of Safety and Security 1997 (3) SA 786, the Constitutional Court of South Africa also rejected a claim for punitive damages. The Constitutional Court was concerned not simply that punitive damages were non-compensatory, but with issues such as the propriety of imposing penal sanctions without procedural safeguards, doubts as to the efficacy of punitive damages as a deterrent and the best ways of using limited Government resources. Similarly, in relation to the New Zealand Bill of Rights, it has been said that “in the assessment of compensation, the emphasis must be on the compensatory and not the punitive element. The objective is to affirm the right, not to punish the transgressor”: Simpson v Attorney-General, Baigent’s Case [1994] 3 NZLR 667, 703, per Hardie Boys J. By contrast, in the USA and Canada, punitive damages have been awarded for breaches of human rights provisions: see Smith v Wade (1983) 461 US 30; Lord v Allison (1986) 3 BCLR (2d) 300. [Back] Note 138 Except where a tort is not actionable per se. Nominal damages are most commonly awarded where the defendant infringes the claimant’s legal rights, but the claimant does not suffer any loss: The Mediana [1900] AC 113, 116. They “mark the fact that there was a wrong done”: Bradley v Menley & James Ltd 1913 SC 923, 926. Nominal damages can also be recovered where “the fact of a loss is shown but the necessary evidence as to its amount is not given”: McGregor on Damages (16th ed 1997) para 423. However, nominal damages of this sort are rarely awarded. [Back] Note 139 See Marckx v Belgium A 31 (1979), 2 EHRR 330, noted at para 6.187 below, where there were strong dissenting judgments in favour of a “token” award, and Albert and Le Compte v Belgium A 68 (1983), 13 EHRR 415 (just satisfaction). In Engel and Others v Netherlands (No 2) A 22 (1976), 1 EHRR 706, the Court awarded what it described as a “token indemnity” of 100 Dutch guilders (£24) for a breach of Article 5(1). However, it was not strictly a case of nominal damages, since the Court referred to the “moral damage” suffered by the claimant. See D Shelton, Remedies in International Human Rights Law (1999), p 218. [Back] Note 140 It has been suggested that, since nominal damages at common law perform the same function as a declaration in acknowledging a wrong, nominal damages should be abolished: A Burrows, Remedies for Torts and Breach of Contract (2nd ed 1994) pp 269 - 270. [Back] Note 141 Attorney-General v Blake [1998] Ch 439, 456 (CA); Attorney-General v Blake, HL, unreported, 27 July 2000; Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 147, Part III. [Back] Note 142 Penarth Dock Engineering Co Ltd v Pounds [1963] 1 Lloyd’s Rep 359; Ministry of Defence v Ashman (1993) 66 P & CR 195. [Back] Note 143 Attorney-General v Blake [1998] Ch 439, 456 - 459. The Law Commission has recommended that in the context of restitution for wrongs, the term “restitutionary damages” be adopted to replace phrases such as “action for money had and received” and “account of profits”: Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, para 3.82. However, in Attorney-General v Blake in the House of Lords, Lord Nicholls (with whom Lords Goff and Browne-Wilkinson agreed) said that he would prefer to avoid “the unhappy expression ‘restitutionary damages’”; rather he referred to an account of profits (27 July 2000, unreported, p 10 of transcript). The appropriate terminology is thus unclear. Here we use the phrase “restitutionary damages” to refer to measures which give the claimant a share of the gain made by the defendant but less than a full account of profits. [Back] Note 144 See Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, paras 3.19-3.22. [Back] Note 145 See Halifax Building Society v Thomas [1996] Ch 217, 227, per Peter Gibson LJ. [Back] Note 146 Attorney-General v Blake, HL, unreported, 27 July 2000. The Court of Appeal ([1998] Ch 439, 455-459) had also contemplated a role for restitutionary damages in certain cases of breach of contract. The Law Commission has recommended that in general the development of the law of restitution for torts should be left to the common law, but that legislation should provide that restitutionary damages may be recovered where the defendant has committed a tort, or a civil wrong under an Act where an award of restitutionary damages would be consistent with the policy of that Act, provided in each case that the defendant’s conduct showed a deliberate and outrageous disregard of the claimant’s rights (Aggravated, Exemplary and Restitutionary Damages (1997) Law Com No 247, paras 3.42 and 3.51). This should be without prejudice to remedies under the existing law (Law Com No 247, para 3.53). [Back] Note 147 This was the case ofPapamichalopoulos v Greece, A 260-B (1993), 16 EHRR 440 (merits); A 330-B (1995), 21 EHRR 439 (article 50); see below, paras 6.225 - 6.226. In this case the applicants were awarded not just the value of the land of which they had been dispossessed unlawfully but the value of the buildings which had subsequently been constructed on it. However the court was careful to emphasise that the award of the damages for the value of the buildings was intended to compensate the applicants for loss of enjoyment: A 330-B (1995), 21 EHRR 439, para 40 (read in conjunction with para 38). There is no sign that the Court intended to depart from its normal compensatory measure. [Back] Note 148 For example, a case in which the applicant’s Convention rights had been violated by the state taking his confidential information, and that information had then been used to make a profit. (The point would arise only if the applicant would not have made the same profit himself, since in that case he would be able to claim compensatory damages. One can envisage cases in which the applicant wanted personal information kept confidential and would not have exploited it). [Back] Note 149 See for example, Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. See further Clerk and Lindsell on Torts (17th ed 1995) paras 2.01 - 2.17; A Burrows, Remedies for Torts and Breach of Contract (2nd ed 1994) p 26-36. [Back] Note 150 See, for example, Sporrong and Lönnroth v Sweden A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction) (discussed in Part VI at para 6.231 - 6.232 below), where the Court determined that 4 years should have been sufficient for the planning decisions there under consideration, which in fact took between 8 and 23 years. The damages were based on the excess over 4 years. [Back] Note 151 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Ltd, The Wagon Mound [1961] AC 388. This rule is subject to two qualifications. First, damages are recoverable for an unforeseeable degree of loss provided that the loss is of a foreseeable type. This is sometimes referred to as the “thin skull” principle. See Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Secondly, damages are recoverable for a loss which occurs in an unforeseeable manner, provided that the loss is of a foreseeable type. Hughes v Lord Advocate [1963] AC 837. [Back] Note 152 Clerk and Lindsell on Torts (17th ed 1995) para 2.20. A Burrows, Remedies for Torts and Breach of Contract (2nd ed 1994) pp 44 - 45. Contrast Kuwait Airways Corp v Iraqi Airways Co (No 5), The Times 7 April 2000. [Back] Note 153 Paras 2.26 - 2.27 above. [Back] Note 154 Such breaches of Article 6 are one of the most fruitful sources of damages in Strasbourg, particularly in relation to Italy: See Part VI paras 6.113 - 6.124. [Back] Note 155 A 120 (1987), 10 EHRR 95 (merits); A 136-B (1988), 13 EHRR 449 (just satisfaction). This case is noted at para 3.65 above. [Back] Note 156 The damages reflected her “loss of real opportunities”, and her “feeling of frustration and helplessness” as she saw her chances of success becoming more remote: A 136-A (1988), 13 EHRR 449 at paras 13 and 14. [Back] Note 157 A 120 (1987), 10 EHRR 95, para 28. [Back] Note 158 A 120 (1987), 10 EHRR 95, para 31. [Back] Note 159 It referred particularly to the nature of the proceedings, which would be decisive of the mother’s relations with her child, and in which any procedural delay could result in a de facto determination of the issues before the court. The authorities were therefore under a duty to exercise exceptional diligence: A 120 (1987), 10 EHRR 95, paras 85-6. [Back] Note 160 [1998] BCC 370. [Back] Note 161 [1998] BCC 370, para 56. [Back] Note 162 See also Massa v Italy A 265-B (1993), 18 EHRR 266, noted in para 6.119 below, where the blame was apportioned between the state authorities and the backlog of the relevant court. [Back] Note 163 These cases, in most of which the chance was that, but for the wrong, a third party might have acted in a way that would have advantaged the claimant, must be distinguished from those in which the court is faced with evaluating whether or not an event would have occurred in the past. In the latter type of case the claimant must prove his case on the balance of probabilities: Hotson v East Berkshire Area Health Authority [1987] AC 750. [Back] Note 164 A recent English authority is Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907, CA. A well-known case in contract is Chaplin v Hicks [1911] 2 KB 786. [Back] Note 165 Paras 3.59 - 3.69 above. As there noted, in Perks v United Kingdom Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33, the Court declined the claimant’s invitation to clarify the position. See, however, Pressos Compania Naviera SA v Belgium A 332 (1995), 21 EHRR 301 (merits); 1997-IV p 1292, 24 EHRR CD 16 (just satisfaction), discussed in Part VI paras 6.229 - 6.230, where the Court awarded half the claim to allow for the uncertainty of litigation. [Back] Note 166 Dannemann makes a similar proposal. He suggests that damages should be for the loss of the chance of a favourable outcome, not to compensate for the unfavourable outcome; the claimant should receive a proportion of the benefit, according to the chance of success, that being an issue to be determined by evidence. “Haftung für die Verletzung von Verfahrensgarantien nach Article 41 EMRK” in Rabels Zeitschrift für ausländisches und internationales Privatrecht, December 1999 at pp 465 - 469. [Back] Note 167 Lord Woolf’s third principle: see above, para 4.31. [Back] Note 168 See above paras 2.22 - 2.25 and 4.15. [Back] Note 169 See Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000) para 6-20. [Back] Note 170 See A Burrows, Remedies for Torts and Breach of Contract (2nd ed 1994) p 4. It is also consistent with the leading case in New Zealand law: Simpson v Attorney General, Baigent’s case [1994] 3 NZLR 667, where Cooke P indicated that double recovery should not be allowed. This case is discussed at para 4.19 above. [Back] Note 171 See paras 3.70 - 3.74 above. [Back] Note 172 As in Pine Valley Developments Ltd v Ireland A No 222, 14 EHRR 319; A No 246-B, 16 EHRR 379. For details see below, paras 6.219 - 6.222. [Back] Note 173 HRA s 8(4): see the discussion at paras 4.3 - 4.11 above. [Back] Note 174 Under Supreme Court Act 1981, s 35A or County Courts Act 1984, s 69. [Back] Note 175 Para 3.74 above. [Back] Note 176 For example 2%. Clerk & Lindsell on Torts, Fourth Supplement suggest that 3% should be taken, following Wells v Wells [1999] 1 AC 345. See pp 25 - 27. [Back] Note 177 See Wright v British Railways Board [1983] 2 AC 773, 782. [Back] Note 178 See Judgments Act 1838, s 17 (as amended by s 44(1) of the Administration of Justice Act 1970) and Judgment Debts (Rate of Interest) Order 1983 (SI 1983 No 564); County Courts Act 1984 s 74 and County Courts (Interest on Judgments) Order 1991 (SI 1991 No 1184). [Back] Note 179 See above, paras 3.27, 3.65. [Back] Note 180 See above, para 4.64. [Back] Note 181 [2000] 2 WLR 1173. See above, paras 4.66 - 4.67. [Back]
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