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25.6The Court of Protection has a jurisdiction to grant:
•a declaration that the ECHR rights of P have been breached;
1YA(F) v A local authority and others [2010] EWHC 2770, [2010] COPLR Con Vol 1226. •a declaration that the ECHR rights of another person who can claim to be a victim have been breached;
2YA(F). See also City of Sunderland v MM and others [2009] COPLR Con Vol 881. •damages under HRA 1998 s8 where such are required to afford just satisfaction for either category of breach;
3YA(F). •a declaration under HRA 1998 s4 that a provision of the Mental Capacity Act (MCA) 2005 is incompatible with the ECHR.
4COPR r83(1) and HRA 1998 s4(5)(f). To date, no declarations have been granted (or, indeed, sought, at least in any reported case).
25.7There is now an increasing body of first instance decisions from the Court of Protection providing (most commonly by endorsing consent orders) for declarations and/or damages in respect of breaches of Articles 5 and 8 ECHR committed by public bodies. That body of decisions represents the tip of an iceberg of unreported cases in which claims have been settled.
25.8The case-law was usefully summarised in
Essex County Council v RF,
5[2015] EWCOP 1. in which the District Judge also gave an indication of a ‘tariff’ of damages for an unlawful deprivation of liberty of between £3,000 and £4,000 per month where the individual would not have been detained had the public body in question acted lawfully. The decision is not binding authority, but the authors are aware that this ‘tariff’ is regularly used by both practitioners and the courts in assessing offers and settlements in relation to compensation in the field of deprivation of liberty.
25.9It is, however, important to understand that where the responsible body can show that deprivation of liberty would have happened in any event and caused no loss to the individual (ie that the breach of Article 5 was ‘technical’ or ‘procedural’), then the person is likely to recover only nominal damages (ie £1) and/or the court will simply make a declaration that their rights under Article 5 have been breached as the necessary ‘just satisfaction’.
6HRA 1998 s8(3). It is unlikely that public funding will be available to bring a claim where it is likely simply to result in such a declaration (see further chapter 6).
25.10If a declaration or damages for a breach of rights under the ECHR is sought, it is necessary that the precise basis for this claim be set out. Practice Direction (PD) 11A, dealing with HRA claims, outlines the relevant procedure at paras 1–3 for making a claim, but in summary the most important requirement is that it is set out as soon as practicable so that the other parties and the court are aware that a specific claim in this regard is being made.
25.11A specific procedure must be followed if a declaration of incompatibility is sought, including notice to and the joining of the Crown.
7PD 11A paras 4–8. The entirety of a case from the permission stage onwards in which a declaration of incompatibility is sought must be heard before the President of the Family Division, the Chancellor or by a High Court judge nominated to sit in the Court of Protection.
8PD 11A para 9.25.12Claims for declarations/damages under the HRA 1998 that follow on the substantive determination by the Court of Protection of questions of P’s best interests have sometimes been brought either in the county court (or, if it is a high value claim) in the Queen’s Bench Division of the High Court. There is no reason in principle why this aspect of the claim cannot be heard before the Court of Protection and, as suggested above, this has the advantage that the judge in question will be familiar with all of the surrounding issues. It also has the advantage that the Court of Protection judge can approve any settlement (ie negotiated compromise) without the need for further judicial intervention. A precedent for a settlement order can be found online at www.courtofprotectionhandbook.com/precedents.
25.13Some Court of Protection judges are reluctant to address ‘historic’ breaches of rights under the ECHR, preferring to focus upon P’s best interests now and for the future. Whilst understandable, we suggest that this should be resisted, because of the inevitable need for duplication of effort and delay in recovering damages for P in a separate claim in the county court or the Queen’s Bench Division of the High Court. At a minimum, we suggest, it is strongly advisable to seek declarations from the Court of Protection judge as to the breaches of P’s rights upon which a claim in the county court or Queen’s Bench Division can be brought.
25.14The only sound reason for ‘hiving off’ HRA 1998 aspects is that the standard costs rules in civil proceedings will apply, by contrast to the specific rules that apply in the Court of Protection (as to which, see chapter 16). If it appears that the defendant public authority is likely to contest the HRA 1998 claim, then it may be prudent to proceed before the civil courts so that a full award of costs can be sought against the public authority. If P is publicly funded then if this civil claim is, in turn, compromised, care will need to be taken to ensure that the costs consequences are considered both by reference to the costs in the civil proceedings and before the Court of Protection so as to ensure that, insofar as possible, any damages awarded to P are not then swallowed up by the statutory charge imposed by the Legal Aid Agency (LAA). This is addressed at paras 6.76–6.79.