Nigel Mott v Environment Agency
| Jurisdiction | England & Wales |
| Judge | David Cooke |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] EWHC 1892 (Admin) |
| Date | 18 July 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12289/2013 CO/4422/2014 |
[2019] EWHC 1892 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: CO/12289/2013 CO/4422/2014
Mark Beard (instructed by Harrison Clark Rickerbys) for the First Claimant
Ken Rogers (instructed by Philip Smart & Associates) for the Second Claimant
Gwion Lewis (instructed by Environment Agency Legal Services) for the Defendant
Hearing date: 29 May 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ David Cooke
This judgment follows a hearing to assess the basis and quantum of compensation to be paid by the defendant Agency to the First Claimant Mr Mott in consequence of my finding at the trial of his claim that the Agency's decisions to impose conditions on his licence to fish for salmon in the river Severn using a putcher rank, limiting his permitted catch to 30 fish in 2012, 23 fish in 2013 and 24 fish in 2012, were each unlawful in the absence of compensation by reason of the interference they entailed to his rights to property under Article 1 of the First Protocol to the ECHR (“A1P1”). I made an order after the trial declaring that an award of damages was necessary to afford just satisfaction to Mr Mott for that interference, pursuant to s8 Human Rights Act 1998. The facts are more fully set out in my judgment on that claim: [2015] EWHC 314 (Admin), and I will not repeat them here.
My decision on the A1P1 point was upheld by the Court of Appeal ( [2016] EWCA Civ 564) although my conclusion that the relevant decisions were unlawful by reason of irrationality was not. The Agency's appeal to the Supreme Court was dismissed ( [2018] UKSC 10). There was no cross-appeal on the irrationality point.
Following the Supreme Court's decision the matter was brought back for assessment of compensation. In addition, by order of 25 July 2018 (made without a hearing but with the benefit of written submissions by all parties) I allowed an application by Mr Merrett, a joint holder with Mr Mott of the lease of the right to fish the putcher rank who had been an Interested Party up to that point, to be made the Second Claimant and advance a claim to similar effect as Mr Mott's, and directed that he file Particulars of Claim in support. The Agency filed a Defence to that claim pursuant to my order on 30 January 2019. The hearing dealt also with Mr Merrett's claim.
Relevant legal principles
There was considerable agreement between counsel as to the legal principles to be applied, insofar as they can be discerned from UK and Strasbourg jurisprudence. The court is directed by s 8(4) HRA as follows:
“In determining —
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”
Counsel are agreed however that the jurisprudence of the ECtHR on Art 41 is limited, largely concerned with awards for non-pecuniary losses, which have tended to be low in amount, and difficult to rationalise. UK courts have therefore been required to develop their own principles, while having regard as far as they can to the Strasbourg cases and what can be derived from them.
Counsel are agreed that these principles include the following:
i) The remedy in damages under the HRA is discretionary and not similar to damages in tort (per Lord Reed in R (Sturnham) v Parole Board [2013] 2 AC 254 at para 29)
ii) Compensation may be awarded for financial loss provided it was the direct consequence of the breach complained of, without regard to tort- based considerations of remoteness, scope of liability or reasonable foreseeability (see McGregor on Damages para 50–098). Mr Beard described this as a “but for” test of causation.
iii) The leading UK authority is the decision of the Court of Appeal in R (Anufrijeva) v Southwark LBC [ [2003] EWCA Civ 1406 in which Lord Woolf LCJ said:
“59. … it is possible to identify some basic principles the ECtHR applies. The fundamental principle underlying the award of compensation is that the Court should achieve what it describes as restitutio in integrum. The applicant should, insofar as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded.”
Mr Mott's claim
Counsel are also agreed that in this case Mr Mott should be compensated for his financial losses attributable to the breach, and that in principle these are to be calculated based on the difference between the value of the salmon catch he was permitted to make under the decisions challenged and that which he could have made but for the infringement of his A1P1 rights. There are two issues on which they part company:
i) Whether this difference is to be calculated as Mr Mott says from the number of fish he could have caught if no catch limit had been imposed, or as the Agency says from an assumption of a different catch limit which it could have imposed without any infringement of Mr Mott's A1P1 rights, and
ii) Whether Mr Mott is entitled to claim for losses in years later than 2014 (the last year for which the decision to impose a catch limit is challenged in these proceedings). He makes such a claim, either on the basis that the limits set for those later years must also have been unlawful or alternatively irrespective of whether they were or were not lawful.
Mr Mott's calculation for the first period (2012–14) is as follows:
i) His starting point is the average number of fish caught in the five years from 2005–9, being the last continuous five year period in which the fishery operated in full without either a voluntary agreement not to fish (for which the Agency made payments in the years 2004, 2010 and 2011) or a catch limit imposed under the challenged decisions. That average was 623.2 fish, and the “lost” catch is the difference between that figure and the catch allowed in each year (30, 23 and 24 respectively).
ii) His evidence is that the average price at which he sold fish was £98.25 in 2012, £107 in 2013 and £113.44 in 2014.
iii) From the gross loss so calculated Mr Mott deducts certain cost savings: in light of the catch restrictions he did not pay for a licence for the full number of putchers (650) he was entitled to fish, so paying a smaller fee, and he did not fish on all the days he might have, so saving some travel costs.
iv) The net loss so calculated is £187,278 for this period. Mr Lewis does not contest this calculation in any respect, if I uphold Mr Mott's premise that the starting point should be based on the assumption there was no catch limit. He does not seek to say that any additional cost savings or other offsetting amounts should have been deducted.
The Agency's alternative calculation starts from an assumption, which Mr Lewis submits the court should make, that but for the catch limits actually but unlawfully set, an alternative lawful decision could and would have been taken such that Mr Mott would have been limited to a catch of not more than 60 fish in each year. That figure is not the subject of any evidence filed by the Agency, though it is accepted that the catch limits in fact set in subsequent years were 50 in 2015, 48 in 2016, 55 in 2017 and 58 in 2018.
Calculating the “lost” catch from a starting point of 60 fish rather than 623.2 produces a gross loss of £10,990.34 for the three year period. The Agency has not sought to deduct any cost savings from that amount. The arithmetic of this calculation is not disputed.
Mr Lewis's submissions in favour of this approach can be summarised as follows:
i) Restitutio in integrum requires that the claimant so far as possible be put in the position he would have been if his Convention rights had not been infringed, not as if the power relied on had not been exercised at all.
ii) Hence “just satisfaction” required compensation to restore him to the position he would have been in if a Convention compliant decision to impose a catch limit had been taken, and not to a position in which there was no catch limit.
iii) In the present case the courts at all levels (or at least in the Court of Appeal and above) had held that the defect resulting in breach of A1P1 was not the total catch the Agency sought to allow from all historic fishery licences in the Severn in the year in question (150 in 2012, for instance) but only that the method of allocation unfairly divided that total equally between the number of expected applicants, irrespective of the sizes of their fisheries.
iv) Had the Agency not allocated the total catch as it did, it would have exercised a broad judgment and allowed Mr Mott not more than 60 fish, which the Supreme Court would have found A1P1 compliant. To go further (eg by an allocation pro rata previous catch levels) would have reduced the residual catch permitted for other fisheries below levels that could be regarded as realistic.
v) Alternatively if a reallocation of the total catch would not be sufficient to avoid a breach, “just satisfaction” required “a balance to be drawn between the interests of the victim and those of the public as a whole” ( Anufrijeva at para 56) which in the circumstances would result in a fair limit being found by “broadly doubling the sum of £10,990 … [to] £20,000.”
The first point is, it seems, without direct authority. Mr Lewis cited no case, whether concerned with financial or non-financial loss, in which damages had...
To continue reading
Request your trial
-
Norma Mitchell and The Defence Council and Secretary of State for Defence
...the impugned proposal in that case was unlawful. The plaintiff/appellant also places reliance on the case of Mott v Environmental Agency [2019] EWHC 1892 referred to in paragraph 50-119 of McGregor. The commentary states: “damages for proven pecuniary loss followed as of course where the cl......