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It is trite that Human Rights Act 1998 (HRA) damages are awarded only when ‘just satisfaction’ is required by article 41 of the European Convention on Human Rights (ECHR) (echoed in HRA s8(3), and respected in the case law of the Strasbourg and domestic courts). When just satisfaction requires damages to be paid, they should put the claimant in, so far as possible, the same position as if their rights had not been violated (eg,
DSD and NBV v Commissioner of Police of the Metropolis [2014] EWHC 2493 (QB); [2015] 1 WLR 1833 at para 17). But when is ‘just satisfaction’ far from just? A number of widely reported cases on the statutory charge and clawback from HRA damages in the Family Division raise just that question.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) s25 provides:
(1) Where civil legal services are made available to an individual under this Part, the amounts [due to the lord chancellor] are to constitute a first charge on –
(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person) ...
Conflicting judicial guidance on when the charge will apply in damages claims parallel to care proceedings is increasingly making providing reliable advice to clients very difficult. Damages awarded in these cases are small in value, and invariably will be wiped out by the application of the statutory charge in respect of the substantial costs arising in the care proceedings, even where the costs of the HRA claim are met by the defendant.
Guidance offered by the court has not been particularly encouraging, but principles can be identified that may help:
•The assessment of damages should be approached without regard to the question of public funding (see
H v Northamptonshire CC [2017] EWHC 282 (Fam) at para 78).
•Where the claims are viewed as both legally and factually separate (see
P v A Local Authority [2016] EWHC 2779 (Fam); [2016] 4 WLR 180 at para 72), it is unlikely that they will be considered connected for the purposes of the statutory charge. Evidence that supports separation includes:
•Are the claims issued separately as freestanding matters? Although some guidance indicates that, where a claim arises in the context of care proceedings, it would be more properly brought by way of HRA s7(1)(b), where claims can and should be properly initiated outside the family proceedings using HRA s7(1)(a), they are arguably unconnected for the purposes of the charge (see
P v A Local Authority, where the fact a claim was issued separately as a CPR Part 8 matter was relevant; paras 28–29 of
SW & TW (Children: Human Rights Claim: Procedure) (No 1) [2017] EWHC 450 (Fam) make plain the HRA proceedings are subject to the CPR, and give guidance, but do not grapple conclusively with the question of the statutory charge.)
•How has the Legal Aid Agency (LAA) approached the claims? The fact that the LAA has either refused funding for a damages claim or issued a separate certificate for the HRA proceedings will be relevant (see P v A Local Authority at paras 72 and 79, and H v Northamptonshire CC, at para 40). Guidance offered in P v A Local Authority makes plain that where funding has been refused by the LAA for a damages claim, but granted in respect of declarations, the statutory charge is unlikely to apply.
•Are the claims truly factually distinct? In H v Northamptonshire CC, the ultimate decision of the LAA was that the matters were distinct, in part because the claim arose as a result of a delay in bringing the care proceedings, not in the conduct of the care proceedings themselves (see para 40). In P v A Local Authority, the HRA claim concerned a distinct question of disclosure of information about the private life of the transgender child concerned to the parents, in violation of ECHR article 8.
Working towards clarity has proved intractable. Unsurprisingly, these issues have not yet been tested in the higher courts. Robust arguments have been put by claimants, with varied results:
•Any argument that the defendant local authority should pay the costs of the care proceedings will remain subject to the rules of the Family Division, and limited to cases of unreasonable conduct (
Re CZ (Human Rights Claim: Costs) [2017] EWFC 11; [2017] All ER (D) 146 (Feb)). However, the question remains outstanding as to what extent the poor conduct that forms the basis for the HRA claim might found a claim for costs on that basis.
•There is clear guidance that the LAA is expected to give an early indication on the application of the charge (H v Northamptonshire CC at paras 82–88).
•Any failure to take a timely view may result in a third-party costs order against the lord chancellor (H v Northamptonshire CC at para 96).
These claims may be of small value, but they aren’t isolated. They highlight poor conduct by a range of local authorities in their handling of their duties towards children, their families and the wider community. Fewer claims brought means not only children and families left with no remedy for rights violations, but fewer lessons learned. The government review of LASPO must confront each of the decimating effects of that Act, and that should include its smaller inequities. This must involve ensuring the statutory charge operates to protect the taxpayer, not to deter claims by children and their families failed by local authorities for redress for human rights violations. If financial compensation is judged necessary to afford ‘just satisfaction’ to a child, or their parents, when their rights have been violated by the state, how can that redress be effective if simply shifting resources from one state pot to another? Whether a solution is found in the higher courts or in statutory reform, clarity is needed.