A Tort‐Based Approach to Damages under the Human Rights Act 1998
| Date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00766.x |
| Author | Jason N. E. Varuhas |
| Published date | 01 September 2009 |
ATort-Based Approach to Damages under the Human
RightsAct1998
Jason N. E.Varuhas
n
This article argues that a strong case can be made for departing fromthe current approachto
damages under the Human Rights Act1998, and for the adoption of an alternative tort-based
approach.Thearticle criticallyanalyses theEnglish courts’ argumentsagainst adopting atort-
based approach and demonstratesthat neither the Act nor the European Convention on Human
Rights militate against such approach. It makes a positive case for a tort-based approach,arguing
that the law of damages in tort provides an appropriate model for damages under the Act as a
matter of principlegiven the common functions and protected interests that underpin both areas
of the law. Further, tort lawo¡ersan established and elaborate corpus ofprinciples to draw on,
which can readilyand naturally be read across to the human rightsco ntext.A tort-based approach
would also promote consistency across English law,whilegenerallya¡ording greater protection
to human rights than theEnglish courts’current approach.
INTRODUCTION
Section 8 of the Human Rights Act 1998 (HRA or the Act) establishes a discre-
tionary remedial jurisdiction by which English courts can award damages for
breachesof i ncorporatedEuropean Convention on Human Rights(Convention)
rights. Nine years have now passed since the Act came into force. However, the
English courts have not yet sought to provide a thorough treatment of the theo-
retical foundations of damages under the Act, preferring simply to mirror the
European Court ofHuman Rights’ (Strasbourg Court or ECtHR) approach to
monetarycompensation, under Article 41 of the Convention, in deciding
whether tomake an award and quantum. Given that the Strasbourg jurispru-
dence isrenowned for itslack ofprinciples and ‘parsimonious’reasoning this mir-
ror approach has proved far from robust.
There is much normative and theoretical work to be done on the nature of
damages under theAct. This paper considers thepossible interaction between
damages principles developed at common law and damages under the HRA,
and argues that the English courts’ current mirror approach should be abandoned
in favour of a tort-based approach.The paper outlines the tort-based approach to
HRA damages proposed by the England and Wales and Scottish Law Commis-
sions, and critically analyses theEnglish courts’reasonsforrejectinga tort-based
approach and favouring one basedon Convention jurisprudence. Analysis shows
that the English courts’reasoning cannot be sustained in the light of the provi-
n
Sidney Sussex College, UniversityofCambridge. I am particularly grateful to David Feldman for
valuable comments on drafts and several thought-provoking discussions. I alsowi sh tothank Carol
Harlow, Janet O’Sullivan, Jenny Steele, NicolaVaruhasand the two anonymous reviewers for helpful
comments. An earlier version of this paper was presented to the Tort Law Section of the Society of
Legal Scholars Annual Conference, London School of Economics, September 2008.The usualdi sclai-
mers apply.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(5) 750^782
sions of the Act and the Strasbourg jurisprudence, and as a matter of principle.
The paper goes on to make a positive case for a tort-based approach to damages
under the Act, along the lines of the general approachproposed bythe Law Com-
missions. As a matter of principle the law of damages in tort provides an appro-
priate model for damages under the Act given that the two areas of law share
common underlying functions and protect similar fundamental interests.
Furthermore, the law of damages in tort provides a developed and generally
coherent bodyof principles and precedent and a robust methodology to draw
on. A tort-based approach would also promote coherence and consistency across
the English law of damages as a whole, while a¡ording greater protection to
rights than a Convention-based approach. Finally, the paper sketches the core fea-
tures and implications of a tort-based approach to damages under the Act and,
using the example of compensatory damages, demonstrates how a tort-based
approach would operate in practice.
Damages under the HRA
Section 8 of the HRAgives English courts the discretionary power to award
damages for breachesof incorporated Convention rights. In Green¢eld Lord
Bingham summarised the preconditions to a damages awardimposed by the Act:
(1) that a ¢nding of unlawfulness or prospectiveunlawfulness should be made based
on breach or prospective breach by a public authorityof a Convention right;
(2) that the court should have power to award damages, or order the payment of
compensation, in civil proceedings;
(3) that the court shouldbesatis¢ed, taking account of all the circumstances of the
particular case, thata n award of damages is necessary to a¡ord just satisfaction to the
person in whose favour it ismade;and
(4) thatthe court should consider an award of damages tobe just and appropriate.
1
He went onto say that ‘It would seemclear that a domestic court may not award
damagesu nlesssatis¢ed that it is necessary to do so, but if satis¢ed that it is neces-
sary to do so it is hard to see how the court could consider it other than just and
appropriate to do so’.
2
Note that damages may only be awarded under the Act if ‘necessary to a¡ord
just satisfaction’ to the victim of a rights breach.
3
This is an indirect reference to
Article 41 of the Convention,u nder which the ECtHRawards compensation for
breachesofConvention rights.
4
Section 8(4) expressly refers to Article 41and pro-
vides that in deciding whether to make a damages award and quantum‘the court
1R(Green¢eld)vSecretary of Statefor the Home Department [2005] 1 WLR 673 at[6].
2ibid.
3HRA, s 8(3).
4This is in fact the only form of redress granted by the ECtHR under Article41, other than a
¢nding of breach: A. R. Mowbray,‘The European Court of Human Rights’Approach to Just
Satisfaction’ [1997] PL 647,658.
Jason N.E. Varuhas
751
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(5)750^782
must take into account the principles applied by the European Court of Human
Rights in relation to the award of compensation underArticle 41of the Conven-
tion’. Article 41 provides:
If the Court ¢nds that there has been a violation of the Convention or the protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparationto be made, the Court shall, if necessary, a¡ord just satisfac-
tion to the injured party.
5
The Report of the Law Commissions
The Law Commission and Scottish Law Commission, in their joint report on
damages under the HRA, were the ¢rst to examine the potential interaction
between tort law principles and the courts’ power to award damages under the
Act.
6
The Commissions took the view that the established principles of English
tort lawcould play a crucial role in the assessment of damages under the HRA.
The Commissions stated that the award of damages in tort is the ‘obvious com-
parator in English law’
7
to a claim for damages underthe HRA and that ‘in the
majority of cases under the HRA the courts in England and Wales will ¢nd it
possible and appropriate to apply the rules by which damages in tort are usually
assessed to claims under the HRA’.
8
While advising that the tort analogy ‘be
applied with great care’,
9
the Commissionsconsidered that the rules applied in
tort law could be treated ‘asthe prima facie measure to be appliedu nlessthe results
appear inconsistent with the principles applied by the Court in Strasbourg’.
10
AN ANALYSIS OF THE CURRENTAPPROACH OF THE ENGLISH
COURTS
The Law Commissions’report appeared to set the stage for English courts to rely
heavilyon common law principles in deciding damages claims under the HRA.
However, while some early High Court decisions drew on tort law principles,
11
the higher courts have since sought to distinguish and dissociate the approach to
5The reference to Article 41in section 8(4) is‘curious’ given ‘Article 41is, in terms, directed to a
situation inwhich domestic law failsto make adequateprovision’ for monetary reparation: R.
Clayton andH. Tomlinson,The Law of Human Rights (Oxford: OUP, 2000) at [21.30].Consi stent
with the argument advanced below, this suggests that the Strasbourg Court’s approach to com-
pensation under Article 41is not an appropriate model forEngl ish courts to followi nthedomes -
tic human rights context.
6DamagesUnder the HumanRights Act 1998, Law Com No26 6/Scot Law Com No180 (2000) (Law
Commissions Report).
7ibid at [4.14].
8ibid at [4.26].
9ibid at [4.21].
10 ibid at [4.26].
11 See for example R (KB) vSouth London and South andWest Region Mental Health ReviewTribunal
ATort-Based ApproachTo HRA Damages
752 r2009 The Author.Journal Compilation r2009 The Modern Law Review Limited.
(2009) 72(5)750^782
To continue reading
Request your trialUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations