Damages Under the Human Rights Act

The recent decision of the Court in R (on the application of KB and Others) v Mental Health Review Tribunal and Another [2003] 2 All ER 209 sets out important guidelines in relation to awards of damages by the Courts under the Human Rights Act 1998 (the HRA).

The HRA provides that where a Court holds an act of a public authority to be unlawful, it may grant relief including damages (section 8(1)). Damages may be awarded on the basis of "just satisfaction" (section 8(3)).

Background

The Claimants were patients detained under powers conferred by the Mental Health Act 1983. They made applications to the Mental Health Review Tribunal for the review of their respective detentions. There were delays in the hearings of the applications. In two earlier judgments (R (on the application of KB and others) v Mental Health Review Tribunal [2002] EWHC 639 and R (on the application of B) v Mental Health Review Tribunal [2002] EWHC 1553), the Court held that the Claimants' rights under Article 5.4 (to the speedy determination by a Court of the lawfulness of their detention) of the European Convention on Human Rights (the ECHR) had been infringed.

In this judgment, Burnton J considered whether the Claimants were entitled to awards of damages, and if so in what sum. All of the damages claims raised issues of principle concerning awards of damages under the HRA. None of the Claimants' claims were for pecuniary loss: rather, their claims were for the frustration and distress they allegedly suffered by reason of the delay in the hearings of their applications. Four of the claimants claimed, in addition, that the breaches of Article 5.4 resulted in deprivation of their liberty and/or damage to their mental health.

The principles to be applied in awarding damages under the HRA

Burnton J first considered the extent to which the High Court must follow the rules applied by the European Court of Human Rights in awarding damages.

He noted that the Strasbourg Court tended to award damages on an "equitable" basis, and its judgments did not analyse the basis of calculation nor give a breakdown between different items of damages. These characteristics rendered it difficult to identify more than very general principles. Burnton J considered it to be understandable that a Court composed of many members from different legal backgrounds should express its conclusions on damages in such general terms, but concluded that the domestic Courts' own jurisprudence and legal...