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You are here: BAILII >> Databases >> The Law Commission >> Damages Under the Human Rights Act (Report) [2000] EWLC 266(5) (October 2000) URL: http://www.bailii.org/ew/other/EWLC/2000/266(5).html Cite as: [2000] EWLC 266(5)

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PART V

JUST SATISFACTION UNDER SCOTS LAW

1. INTRODUCTION

5.1      Section 8 of the HRA gives the courts^[1] the power to grant relief to a victim of a breach of human rights by a public authority. This can include an award of damages. In this Part, we shall consider the power to award damages from the perspective of Scots law.

5.2      At the outset, it should be emphasised that the court's power to award damages derives from statute. The nature of the damages which can be awarded will ultimately depend on the construction of section 8(3). The wording of section 8(3) is therefore of the utmost importance:

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction

to the person in whose favour it is made.

2. THE DISCRETION TO AWARD DAMAGES

5.3      It is clear from the statutory language that a 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 the Convention rights (the necessity criterion). The onus will lie on pursuers not only to establish a breach of their rights but also to satisfy the necessity criterion. Given the range of other remedies available,^[2] the courts may often be able to provide just satisfaction to the pursuer without resorting to an award of damages. The negative structure of section 8(3) makes it plain that damages are to be the exception rather than the rule. This appears consistent with the jurisprudence of the Strasbourg Court,^[3] which has to be considered at this stage: section 8(4)(a). But the issue is ultimately a question of statutory construction for the Scottish Courts.

5.4      In determining whether the necessity criterion is established the court must take account of all the circumstances of the case. The judicial discretion is deliberately wide in order to deal with the merits - or demerits - of individual cases. Principles will be difficult to formulate, as is demonstrated in the decisions of the Strasbourg Court.^[4] One issue deserves comment. The Strasbourg Court has argued that its own judgment declaring that a violation has occurred may per se be sufficient to constitute just satisfaction.^[5] Given that the pursuer's rights have (ex hypothesi) been violated by a public authority, should a declarator of a Scottish Court ever be itself sufficient to provide just satisfaction? This is not to say that damages should always be awarded - the structure of section 8(3) prevents such an outcome. But it is suggested that the pursuer should receive some relief in addition to a declarator before there is just satisfaction for the breach. Otherwise, it would appear that public authorities may breach human rights with impunity. This further relief need not be judicial: it might, for example, be a change in administrative practice.

3. HOW QUANTUM SHOULD BE ASSESSED

5.5      Once section 8(3) is triggered, the court can award damages. The jurisprudence of the Strasbourg Court must also be considered when considering quantum: section 8(4)(b). As a general rule, the Strasbourg Court takes the view that the purpose of damages is to compensate the victim for losses arising from the breach of a Convention Right, that is to obtain restitutio in integrum. This is consistent with the law of Scotland where the purpose of damages in delict is to compensate the pursuer for losses arising from the defender's wrongful conduct. Several points should be noticed.

(1) Damages under section 8(3) should not be nominal.^[6] This is because it is difficult to see how an award of nominal damages can be "necessary" to afford just satisfaction. However, this should not prevent a court awarding a small sum of damages when the pursuer has suffered a small loss. This is consistent with Scots law, which has always been reluctant to award only nominal damages.^[7]

(2) Damages under section 8(3) should not be exemplary or punitive.^[8] The purpose is to compensate the pursuer's loss, not to punish the public authority. Again this is consistent with Scots law which rejects exemplary or punitive damages.^[9]

(3) Where the breach of a human right amounts to conduct already recognised by Scots law as delictual then it is thought that the damages awarded under section 8(3) should correspond with the damages that would have been awarded in a delictual claim. Consider the following examples:

(a) A is wrongly shot by B, a policeman: A is killed. This is a breach of Article 2. The court could award damages to A's family and dependants under section 8(3). Title to sue could be determined by analogy with the Damages (Scotland) Act 1976. Awards could be made for loss of financial support and loss of society on analogy with the 1976 Act.

(b) A is assaulted by police while in police detention. This is a breach of Article 3. The court could award damages to A based on analogy with the Scots delict of assault.^[10]

(c) A is wrongfully detained in prison. This is a breach of Article 5. The court could award damages to A based on analogy with the Scots delict of wrongful imprisonment.^[11]

It remains to be seen whether a delictual claim should have to be pursued before a court can consider damages under section 8(3). While availability of a delictual action might suggest that damages under section 8(3) are not necessary to afford just satisfaction,^[12] it was suggested earlier that this is probably not a correct interpretation of the Act.^[13]

(4) In our view, the importance of section 8(3) arises when the breach of a human right does not amount to delictual conduct already recognised by Scots law. Where this is a mere 'technical' breach which has not caused the victim any physical or economic harm, the necessity criterion may not be triggered. If so, no award of damages will be due. But on the assumption that this criterion is satisfied, how should a Scottish court assess quantum when there is no analogous delictual claim? Cases are most likely to arise under Articles 5, 6 and 8.^[14]

While it is, of course, ultimately a matter for the courts, it is thought that an analogy with the law of defamation might provide a starting point for the assessment of damages in these circumstances. In an action of defamation, the pursuer is entitled to solatium in respect of insult and hurt feelings.^[15] A possible approach is that a victim of a breach of human rights should be entitled to solatium under section 8(3) to compensate for the indignity of that breach. The more serious the breach, the greater will be the amount of solatium because the victim's hurt will be deeper.^[16] However, where the pursuer alleges that he has suffered pecuniary loss as a consequence of the breach this would have to be averred and proven and the ordinary rules of causation and remoteness would apply. Where the breach has involved a wrongful interference with proprietary interests contrary to Article 1 of Protocol No 1 the question arises whether the measure of damages may be restitutionary.^[17] It is not clear that a restitutionary measure can be justified as necessary to afford "just satisfaction" to the victim. However, it might be justified by the court's power under section 8(1) to award a remedy which is "just and appropriate".^[18] There is no authority in Scots law that a pursuer has to elect between restitutionary and compensatory damages, provided the pursuer is seeking damages for wrongful interference with separate and different interests.

Where the victim has suffered a long period of wrongful detention, compensation could be based on the criteria used by the executive when currently making an ex gratia payment. Of course, if such a payment has been made or is available, the necessity criterion may not be satisfied and damages under section 8(3) will not be triggered.

(5) In a claim for damages under section 8(3), whether or not the breach amounts to delictual conduct under Scots law, the pursuer will have to establish that his loss was caused by the breach.^[19] Similarly, the losses must not be too remote.^[20] Thus, consistent with the Strasbourg jurisprudence,^[21] damages under section 8(3) for speculative losses can easily be curtailed.^[22] When the pursuer's conduct has contributed to the breach, it is thought that any damages awarded under section 8(3) should be reduced as a result of contributory fault.^[23]

It would appear that the Strasbourg Court has refused damages on the basis of the status of the victim.^[24] As a general principle, the status of the pursuer is irrelevant in a claim for damages in delict: so, for instance, prison authorities owe the normal duty of care for the safety of inmates.^[25] Moreover, even when the pursuer is injured in the course of committing a crime, his delictual claim is not automatically barred.^[26] Instead, the court has a discretion to refuse damages, depending on the gravity of the offence.^[27] Thus, while the claim of the relatives of a deceased terrorist would not automatically be barred in Scots law, it is likely that the court would refuse damages if the deceased had been engaged in terrorist activity at the time of the delict.^[28] But the mere fact that the pursuer has been convicted of a criminal offence before the breach of human rights has occurred, should not prevent him from obtaining damages under section 8(3).^[29] The only issue is whether the necessity criterion is otherwise satisfied.

4. CONCLUSION

5.6      This report provides a guide to the Strasbourg jurisprudence. It also illustrates the limitations of the Strasbourg case law, particularly in its lack of clear principles. It should also be clear that the Strasbourg Court operates in a highly politicised environment.^[30] Hence the perceived need to give a victim damages when the State's breaches have been serious or blatant and repeated. This is difficult to reconcile with the purported purpose of damages under the Convention, that is compensation for the victim's loss: in other words, there is a punitive element in the damages. However, it was argued earlier that the damages are not truly punitive; they are to compensate for a genuine loss suffered by the victim, though one which the Strasbourg Court might have left uncompensated but for the seriousness of the State's violation.^[31]

5.7      However, the absence of detailed guidance on the quantification of damages should not be a cause for great concern in Scotland. The Scottish Courts have traditionally taken a pragmatic approach to the whole question of damages. Scots law has avoided the complex rules on the calculation of damages which are a feature of English law. Given that background, Scottish courts should experience little difficulty in applying section 8 which has been deliberately drafted to allow a considerable degree of judicial discretion on both whether or not to award damages and their quantification. The Strasbourg jurisprudence may prove to be of limited value. But there are enough analogous principles in the Scots law of delict to give the courts at least a starting point in dealing with section 8(3) claims for damages.

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Note 1   Though the power to award damages is limited to courts which have the power to award damages or pay compensation in civil proceedings: s 8(2), see above, paras 2.16 - 2.18.    [Back]

Note 2   For example interdict or specific implement.    [Back]

Note 3   See above paras 3.18 and 3.31 - 3.34.    [Back]

Note 4   See paras 3.4 - 3.14.    [Back]

Note 5   See, for example, Golder v United Kingdom A 18 (1975), 1 EHRR 524; Kruslin v France A 176-B (1990), 12 EHRR 547. See above, paras 3.38 - 3.43.    [Back]

Note 6   Cf para 4.74 above.    [Back]

Note 7   D M Walker, The Law of Delict in Scotland (revised 2nd ed 1981) p 463.    [Back]

Note 8   Para 3.47. Cf paras 4.71 - 4.73 above.    [Back]

Note 9   D M Walker The Law of Delict in Scotland (revised 2nd ed 1981) p 461: Black v North British Railway Co 1908 SC 444, 453 per the Lord President (Dunedin) at 453. (“The other ground is that, where fault is great, damages ought to be what is termed ‘exemplary’. I am bound to say I find no authority for any distinction between damages and ‘exemplary damages’ in the law of Scotland”.)    [Back]

Note 10   Downie v Chief Constable of Strathclyde Police 1997 SCLR 603.    [Back]

Note 11   Henderson v Chief Constable, Fife Police 1988 SLT 361.    [Back]

Note 12   The argument being that a person should pursue the delictual claim rather than seek damages under s 8(3) on analogy with having to exhaust internal remedies before proceeding to the Strasbourg Court. Of course, the pursuer cannot obtain delictual damages and damages under s 8(3), as he cannot be compensated twice for the same loss.    [Back]

Note 13   See above, para 2.22 - 2.25.    [Back]

Note 14   For example, if a parent wrongfully loses care of her child to a local authority this can be a breach of Articles 6 and 8: W v United Kingdom (Just Satisfaction) A 136-C (1988), 13 EHRR 453. A parent’s loss of de facto care of a child is not a reparable interest in Scotland: McKeen v Chief Constable, Lothian and Borders Police 1994 SLT 93.    [Back]

Note 15   See for example Gilbert v Yorston 1997 SLT 879.    [Back]

Note 16   This is the position in the law of defamation: see Baigent v British Broadcasting Corporation 1999 GWD 10-474.    [Back]

Note 17   Where the breach amounts to delictual conduct under Scots law, then, of course, the pursuer may seek damages on general principles of culpa or in an action of spulzie (moveable property) or an action of intrusion or ejection (heritable property) which can include violent profits, ie all the profits which the owner might have made from the property while in the wrongful possession of the defender.    [Back]

Note 18   Compare para 4.77 above.    [Back]

Note 19   On causation see J M Thomson, Delictual Liability (1999 2nd ed) Ch 6.    [Back]

Note 20   In Scots law the classic rule is that the damages must arise naturally and directly out of the wrong and therefore be reasonably foreseeable: Allan v Barclay (1864) 2M 873.    [Back]

Note 21   Para 3.58 above.    [Back]

Note 22   Nevertheless, damages could be awarded under section 8(3) for loss of opportunities. First, the pursuer must show that on the balance of probabilities the defender’s conduct caused the pursuer’s damnum ie harm; Kenyon v Bell 1953 SC 125. But once causation is established it does not matter that the damnum was itself the loss of an opportunity, for example, the loss of a chance to pursue an appeal: the pursuer does not have to show on the balance of probabilities that the appeal would have been successful. See Kyle v P & J Stormonth Darling WS 1993 SC 57. Cf paras 3.59 - 3.69 above.    [Back]

Note 23   Law Reform (Contributory Negligence) Act 1945. In spite of the short title, a deduction is made in respect of the pursuer’s fault which can include deliberate as well as negligent wrongdoing: s 5(a) and Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360.    [Back]

Note 24   See para 3.59 above.    [Back]

Note 25   See, for example, Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360.    [Back]

Note 26   Cf the position in English law, para 4.74 above.    [Back]

Note 27   Duncan v Ross Harper & Murphy 1993 SLT 105; Weir v Wyper 1992 SLT 579.    [Back]

Note 28   McCann v United Kingdom A 324 (1995), 21 EHRR 97.    [Back]

Note 29   Under the Criminal Injuries Compensation Scheme, the Authority has discretion to refuse or reduce an award on the ground of the applicant’s criminal record. For discussion, see The Laws of Scotland, Stair Memorial Encyclopaedia (1995) Vol 7 para 656.11. It is submitted that this is not a suitable precedent in respect of claims under section 8(3) where a public authority has breached human rights.    [Back]

Note 30   This is particularly evident in cases brought against Turkey (Baskaya and Okçuoglu v Turkey Application nos 23536/94 and 24408/94, 8 July 1999 (see paras 6.151 and 6.198 below); Aydin v Turkey 1997-VI p 1866, 25 EHRR 251 (see para 6.20 below); Socialist Party v Turkey 1998-III p 1233, 27 EHRR 51 (see para 6.210 below); Kaya v Turkey 1998- I p 297, 28 EHRR 1 (para 6.8 below); Güleç v Turkey 1998-IV p 1698, 28 EHRR 121 (see para 6.10 below); Yasa v Turkey 1998-VI p 2411, 28 EHRR 408; Kurt v Turkey 1998-III p 1152, 27 EHRR 373 (see para 6.21 below)) ; and Greece (Papamichalopoulos v Greece A 260-B (1993), 16 EHRR 440 (merits); A 330-B (1995), 21 EHRR 439 (article 50) (see paras 6.225 - 6.226 below); Stran Greek Refineries and Stratis Andreadis v Greece A 301-B (1994), 19 EHRR 293 (para 6.228 below).    [Back]

Note 31   See above, paras 3.47 - 3.48.    [Back]