UK: Damages Under the Human Rights Act

Last Updated: 2 June 2003

The recent decision of the Court in R (on the application of KB and Others) v Mental Health Review Tribunal and Another [2003] 2 All ER 209 sets out important guidelines in relation to awards of damages by the Courts under the Human Rights Act 1998 (the HRA).

The HRA provides that where a Court holds an act of a public authority to be unlawful, it may grant relief including damages (section 8(1)). Damages may be awarded on the basis of "just satisfaction" (section 8(3)).


The Claimants were patients detained under powers conferred by the Mental Health Act 1983. They made applications to the Mental Health Review Tribunal for the review of their respective detentions. There were delays in the hearings of the applications. In two earlier judgments (R (on the application of KB and others) v Mental Health Review Tribunal [2002] EWHC 639 and R (on the application of B) v Mental Health Review Tribunal [2002] EWHC 1553), the Court held that the Claimants’ rights under Article 5.4 (to the speedy determination by a Court of the lawfulness of their detention) of the European Convention on Human Rights (the ECHR) had been infringed.

In this judgment, Burnton J considered whether the Claimants were entitled to awards of damages, and if so in what sum. All of the damages claims raised issues of principle concerning awards of damages under the HRA. None of the Claimants’ claims were for pecuniary loss: rather, their claims were for the frustration and distress they allegedly suffered by reason of the delay in the hearings of their applications. Four of the claimants claimed, in addition, that the breaches of Article 5.4 resulted in deprivation of their liberty and/or damage to their mental health.

The principles to be applied in awarding damages under the HRA

Burnton J first considered the extent to which the High Court must follow the rules applied by the European Court of Human Rights in awarding damages.

He noted that the Strasbourg Court tended to award damages on an "equitable" basis, and its judgments did not analyse the basis of calculation nor give a breakdown between different items of damages. These characteristics rendered it difficult to identify more than very general principles. Burnton J considered it to be understandable that a Court composed of many members from different legal backgrounds should express its conclusions on damages in such general terms, but concluded that the domestic Courts’ own jurisprudence and legal culture required a more analytical approach.

Burnton J next considered whether an award of damages was compulsory in cases where a breach of the HRA had been established. Taking into account the wording of section 8(3) of the HRA, he concluded that there may be findings of infringement of ECHR rights without a consequential award of damages.

Next, the Judge considered whether a European measure of damages or a UK measure of damages should be applied to breaches of the HRA by domestic Courts. He concluded that the measure of damages should be the national measure. This was on the basis that it was understandable that the Strasbourg Court should apply a constant scale of damages to all cases that came before it, but the UK Courts should take account of the scale of damages awarded by the Strasbourg Court and should be free to depart from it in order to award adequate, but not excessive, compensation in UK terms.

Burnton J next considered whether damages awards should be modest and lower than in comparable English tort cases. He concluded that there was no justification for an award of damages being lower under the HRA than it would be for a comparable tort.

Applying these principles, the damages awarded to the Claimants by the Court ranged from a determination that a finding of a breach of Article 5.4 ECHR amounted to "just satisfaction" to sums of up to £4,000.


The judgment of the Court in R (on the application of KB and Others) v Mental Health Review Tribunal and Another sets out clear guidance by which damages awards for breaches of the HRA should be assessed by the Courts.

The Court followed the approach of the Strasbourg Court in holding that an award of damages may in certain circumstances not be necessary on the basis that a finding of violation may itself constitute "just satisfaction". However, in holding that damages awards for breaches of the HRA should be comparable with and in line with damages for tort claims, the judgment indicates that a successful claim under the HRA may potentially be of considerably more monetary significance to a claimant than the traditionally modest awards of damages usually offered by the Strasbourg Court.

Article by Andrew Lidbetter and Nusrat Zar

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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