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The Human Rights Act 1998 – anticipating Covid-19 claims

The Human Rights Act 1998 – anticipating Covid-19 claims


This is the first in a series of articles considering the Human Rights Act 1998 (‘HRA’) and the Covid-19 pandemic. The first group is designed as a general reminder/ overview of claims under the Human Rights Act 1998, in particular claims arising from alleged breaches of Article 2 European Convention on Human Rights (ECHR), and will address the following issues:

  1. What is a Public Authority;
  2. Standing or ‘victim status’;
  3. Cause of action;
  4. Causation;
  5. Limitation and Defences;
  6. Relief; and
  7. Costs (including recovery of the costs of legal representation at an inquest).

The authors of this article are all attorney general panel counsel with expertise in inquests arising out of deaths in custody and claims under the Human Rights Acts 1998 made by prisoners. It is anticipated that the current Covid-19 claim will give rise to a number of potential HRA claims from not just prisoners, but those in Immigration Detention Centres and other settings where groups of unrelated people are held in close quarters and require employees of those establishments to come into contact with them.

Future articles in the series will examine in more detail potential claims under the Human Rights Act 1998 in the context of the Covid-19 pandemic, particularly arising in confined setting such as a prison, immigration detention centre and care homes.

Simon Connolly

Kirsten Mercer

Kate Wilson

Janine Wolstenholme

Please do not hesitate to contact us if we can be of any assistance.

What is a “Public Authority” for the purposes of the Human Rights Act 1998?

Claims under the Human Rights Act (“HRA”) can only be brought against a public authority.  Section 6(1) of the Human Rights Act 1998 , it is unlawful for a public authority to act in a way that is incompatible with a Convention Right.

When facing a HRA claim it is important to consider whether, in fact, the defendant identified is a “public authority” and therefore whether the claimant has a cause of action against them. The definition of public authority as set out in sections 6(3) to 6(6) HRA is deliberately broadly defined. Although not expressly referred to in the Act, the HRA effectively differentiates between two different types of public authorities: (i) a “core” public authority and (ii) a “hybrid” public authority. A claim can be brought against a “core” public authority in respect of all of its actions. An act or omission by a “hybrid” public authority is not unlawful under the HRA unless the person or company has at least some functions of a public nature (s6(3)(b)) and the nature of the action in question was not a private one (s6(5)).  In most cases, the answer will be obvious. However in cases where there are more complicated or unusual contracting-out arrangements, as may be the case during the Covid-19 pandemic, there may well be significant scope for a defence to be mounted on this issue alone.

Core Public Authorities

This includes those organisations which are obviously public in nature such as police, prison services, the courts and central and local government. The HRA makes it unlawful for a core public authority in respect of all of its actions to act in a way that is incompatible with the ECHR right unless: (a) It could not have acted any differently because of primary legislation; or (b) The situation was one in which the relevant primary or subordinate legislation cannot be read or given effect in a way which is compatible with the ECHR and the authority was acting so as to give effect to or enforce those provisions.

The House of Lords held in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another[1]  that the concept of ‘core’ public authorities should be narrowly defined and found that a parochial church council was not a core public authority. The Court was in particular persuaded by the consequence that if an authority is a ‘core’ public authority, it does not itself enjoy convention rights[2].

Hybrid Public Authorities

An otherwise private body may be regarded as a public authority for the purposes of the HRA if it performs “functions of a public nature”. The obligation on such hybrid bodies to observe Convention rights attaches only to their functions which are of a public nature. In contrast to the test for a core public authority, the focus therefore relates to the functions and substance of the act in question rather than the entity itself.

Lord Nicholls[3] has emphasised that there is no single test to determine whether a function is of a public nature, however a generously wide scope should be given to the expression “public function” (Aston Cantlow para 11).

YL v Birmingham City Council[4] is one of the leading cases considering this test.  The case concerned the rights of an elderly and vulnerable resident of a private care home whose fees were paid in large part by the local authority and whose placement there was made in accordance with the local authority’s duty under s21 National Assistance Act 1948 to “provide residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them”.  The House of Lords held by a majority (Lord Bingham and Baroness Hale dissenting) that the owners of the care home were not performing a public function in providing accommodation. Relevant factors included:

  • The nature of the statutory power, and supervision by a core public authority in carrying out that function.
  • Although the public funding of a function was clearly relevant to some degree, a distinction was drawn between core public authorities purchasing services and funding or subsidising a function. On the facts of YL, the Court found that BCC was purchasing services in the same way that a private individual would.
  • It is unlikely to be helpful to answer the question by asking if the function in other similar cases was carried out by a core public body. Had BCC accommodated YL in a care home which it operated itself, BCC would clearly have acted ‘core’ public authority. This did not necessarily indicate, however, that the function of providing care and accommodation is one of a public nature, it will always be necessary to analyse the nature of and basis for, the function in issue.
  • The existence of a regulatory regime governing the function was likely to be a relevant factor (although their Lordships disagreed regarding whether this tended to point in favour of the regulated function being public or private).

Although Parliament has reversed the effect of that decision by virtue of s145 of the Health and Social Care Act 2008 which provides that the delivery of residential care services in those circumstances amounts to a public function for the purposes of the HRA, the interpretation and application of s6 by the House of Lords remains applicable in other contracting-out contexts.

Mr Justice Coulson in TH v Chapter of Worcester Cathedral[5] derived the following factors by reference to the principles in Aston Cantlow and YL that a court should consider in determine whether or not an authority is a “hybrid” public authority [at 64], which is a useful starting point when considering the prospects of a defence on this issue:

(a)     Is the body performing a task which a ‘core’ public authority is under a duty to perform, and which has been delegated to it?

(b)     To what extent is the function of a governmental nature and/or a part of public administration?

(c)     Does the body have any special statutory powers in relation to the function in question?

(d)     To what extent is the body supported or subsidised from public funds?

(e)     To what extent is the body democratically accountable?

(f)     Would the allegations, if made against the United Kingdom, render it in breach of its international law obligations?

In some cases, whether a proposed defendant is a public authority will be obvious. However, in the case of hybrid public authorities, this is a complicated and case-sensitive issue which should be examined and particularised in any Particulars of Claim or Defence.


Not everyone has standing to bring a claim for breach of human rights. The only people who can bring a claim under the Human Rights Act 1998 (‘HRA’) are those who are victims of the unlawful act or would be the victim of any proposed unlawful act (s.7(1)(b) HRA).

A person is a victim of an unlawful act in domestic law only if he would be a victim for the purposes of article 34[6] of the Convention if proceedings were brought in the European Court of Human Rights (“ECtHR”) in relation to that act (s.7(7) HRA). The ECtHR have a published guide on the admissibility criteria, which is of assistance in assessing whether a Claimant has victim status[7].

In respect of claims under the HRA there are two categories of victim: direct victim and indirect victim.

A direct victim is an easy concept to understand. In the context of a claim under the HRA which may be made in a prison setting, it would be the prisoner to whom an alleged unlawful act has been made or is proposed to be made, in other words, the person who was or will be “directly affected” by the measure complained of. A direct victim must (perhaps obviously) also still be alive in order to make a claim.

The concept of an indirect victim is more nuanced and there has been significant caselaw on the interpretation of the concept of “victim” both in the domestic courts and in the ECtHR. The concept of a victim is something which the court have said “must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act…The word ‘victim’ in the context of Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victim to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to any end.”[8]

 Who can be an indirect victim?

There are, in the context of alleged Article 2 violations two categories of indirect victim:

  1. Where the deceased’s next-of-kin is representing the estate or interests of the deceased;
  2. Where blood relatives, spouses or partners make a claim for their own pain, distress and bereavement at the treatment of the deceased leading to his or her death.[9]

Examples of those who have been accepted as indirect victims include parents, children, siblings, nephews and both married and unmarried partners.

In the case of Morgan v Ministry of Justice[10] the following was set out as a concise test “It is clear from the decisions of the ECtHR that the Court takes a broad view for the purposes of determining whether a person is capable of claiming to be a “victim” of a breach of Article 2 of the Convention. The Strasbourg authorities suggest a test that involves consideration of whether the relationship between the applicant and the deceased is such that the applicant has “suffered gravely” as a result of serious violations and is “personally concerned” by them. Each case is to be determined on its particular facts.”[11]

The High Court in Daniel and another v St Georges considered this test and stated that it could not stand alone without further explanation, because there may well be circumstances in which  close friends, lovers, housemates or colleagues could “suffer gravely” and be “personally concerned” by the ill treatment and death of their friend but they would not be accepted as victims under article 34 of the Convention. An additional family tie or legal relationship appears to be required.

The relevant considerations it was anticipated the ECtHR would have for the Claimants in Daniel and another v St Georges were determined to be:

  1. The nature of the legal/family relationship between the Claimants and the deceased;
  2. The nature of the personal ties between the Claimants and the deceased;
  • The extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; and
  1. Involvement in the proceedings arising out of the deceased’s death.

The first claimant was a foster mother who had fostered the deceased for some three years and who had maintained contact with him in the 13 years following him attaining the age of 18 in what the Judge described as a “long-standing parent/child relationship” which lasted until his death was found to have victim status. The deceased himself had described himself as “your 3rd son” shortly before his death. However, she was not his next-of-kin. She was said to have suffered acute distress as a result of the deceased’s death and had taken a very active role in proceedings arising out of his death, in the role of foster mother. She had given evidence at the Inquest into his death.

However, the second claimant who described himself as the deceased’s foster brother was found not to have victim status. He was a young child when his parents fostered the deceased and although they became close the Judge described their relationships as “as akin to a close friendship between childhood school friends or family friends.” It was said on the authorities not to be a sufficient basis upon which to found a claim as an indirect victim.

Each case will be determined on its own merits when assessing whether the Claimant has “victim status” but in summary, the issues the Court should be invited to examine are:

  1. What is the legal nature of the relationship between the Claimant and the direct victim;
  2. What was the actual extent of the relationship between the Claimant and the direct victim;
  3. Is the nature of the relationship such that the Claimant has suffered gravely and is personally concerned as a result of serious violations of the ECHR.
  4. What involvement has the Claimant had in any earlier proceedings, such as an inquest?

An indirect victim can also bring other complaints, such as under articles 3, 5 provided that the alleged violation is closely linked to the death giving rise to issues under article 2. Victim status has also been granted to indirect victims complaining of breaches of articles 5, 6 or 8 where for example, they have shown a moral interest in having the deceased exonerated of a finding of guilt, or to protect their own reputation.

It is important to examine the status of any Claimant claiming to be an indirect victim to ensure that the Court considers the relevant test rather than simply accepting that the Claimant has a right to bring the claim.

Cause of action

A cause of action under the HRA arises when it is alleged that a public authority has acted in a way which is incompatible with a Convention right (s.6(1) HRA 1998). In such circumstances a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) may bring proceedings against the authority under the HRA in the appropriate court or tribunal, or rely on the Convention right or rights concerned in any legal proceedings, if he or she is (or would be) a victim of the unlawful act (s.7(1)(a)and(b) HRA).

Those Articles which are perhaps most pertinent for claims in a Covid-19 context are Article 2 (Right to Life), 3 (Prohibition of Torture), 6 (Right to a fair trial), 8 (right to respect for private and family life).

Article 2 this has been interpreted in such a way as to impose the following obligations.

  1. The negative obligation to refrain from taking life.
  2. Positive obligations:
    1. to provide an effective regulatory framework for the protection of people’s lives generally (the general, systemic or substantive duty); and
    2. to take reasonable steps to protect the life of a specific individual where state authorities know or ought to know that there is a real and immediate risk to that person’s life, either by suicide or at the hands of another (the operational duty).
  3. A procedural obligation to initiate an effective independent public investigation (the duty of enhanced investigation). This obligation is not dealt with in this article, but was considered in detail at a seminar in 2019, which is available to be repeated upon request.[12]

The general/ systemic/ substantive duty

Compliance with the general duty requires both the enacting of legislation and other rule-based systems to protect life, as well as putting in place effective criminal law and other provisions to deter offences and to enforce the law.

On 17th April 2020 the Howard League and Prison Reform Trust issued the government with a letter before claim over its response to the Covid-19 pandemic[13] in which it is set out that just 0.02% of the prison population (18 people) have been released under the Government schemes and 16 people (13 prisoners and 3 members of staff) have died as a result of Covid-19.

Any individual claim would of course have to be considered on its merits,  but there are a number of foreseeable arguments regarding breaches of the systemic duties about which a cause of action could arise from the death as a result of Covid-19 of a member of prison staff or a prisoner detained in England and Wales:

  • Whether sufficient prisoners were released from prison to ensure that those who remain within the prison system are able to be adequately protected against infection (Public Health England and HMPPS are currently said to require a reduction of 15, 000 prisoners in order to truly safeguard prisoners and staff[14].) Fatality rates are said to be as high as 12% and men twice as likely to die as women. [15] This will of course, be elevated in establishments with an elderly population.
  • Whether there has been access to adequate testing, medical facilities, and quarantine for those with symptoms of Covid-19.
  • Whether there has been sufficient PPE provided for those working in establishments where people are showing symptoms of Covid-19.

The operational duty

The first major case on this was the case of Osman[16] in which it was confirmed that in the criminal context there is an obligation to protect people at a “real and immediate” risk of having a homicide committed against them, however this has been extended to include where a person is in a dependent position on the State that the State can be said to have assumed responsibility for protecting that person’s life and taking preventative and operational measures to limit any risk.

“It entails an obligation to take positive steps to prevent a ‘real and immediate’ risk to the life of a person in a recognised category of particularly vulnerable people from materialising”[17]

The key principle that has emerged in case law is firstly the need for an assumption of responsibility towards the deceased. The degree of control required by the state for the operational duty to be engaged is high and often requires the victim to be detained as a matter of law. It is recognised that those in custody are in a vulnerable position and the state owes a duty of protection to all those who are detained.[18]

Secondly, in order to claim a breach of the operational duty, the State must know or ought to know that there was a real and immediate risk to life. “Real” means objectively well-founded and “immediate” defined as present and continuing, not remote or fanciful. The threshold again is high.

It is easy to foresee potential claims arising from breaches of the operational duty in respect of breaches of Article 2. Whether there was any merit in such a claim would of course be fact specific and case sensitive.

  • Where there is a suggestion that a particularly vulnerable prisoner has been in proximity with those around them with symptoms of covid-19, for example a pregnant prisoner, an elderly prisoner, a prisoner with diabetes or a prisoner with known respiratory conditions.
  • Where there is a suggested that a particularly vulnerable prisoner has not received sufficient access to testing or medical services.

Therefore, where any prisoner dies from covid-19 whilst in custody there is potential for a claim being brought for breach of their human rights.


As Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home

Department (2005) 1 WLR 673, Convention claims have very different objectives from

Civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended to uphold minimum human rights standards and to vindicate those rights. That is why time limit are markedly shorter… It is also why section 8(3) of the (Human Rights) Act provides that no damages are to be awarded unless necessary for just satisfaction. It also seems to me to explain why a looser approach to causation is adopted under the Convention than in English tort law. Whereas the later requires the claimant to establish on the balance of probabilities that, but for the defendant’s negligence, he would not have suffered his claimed loss… under the Convention it appears sufficient generally to establish merely that he lost a substantial chance of this.

The “looser approach” to causation in a Convention claim espoused by Lord Browne of Eaton-Under-Heywood in Chief Constable of Hertfordshire Police v Van Colle (2008) UKHL 50 (at paragraph 138) reflects the European Court’s judgment in the Osman[19] case in which the Court stated the test for causation in an Article 2 claim for an alleged breach of the positive duty to safeguard life as follows:-

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life… it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals… and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk

As has been demonstrated jurisprudentially in Van Colle (above) and stated academically[20] the looser, risk (and so not damage) based approach to causation in Convention claims reflects the difference in aims between such claims and those concerning tortious liability which is to recognise and where appropriate to compensate a claimant for the violation of a substantive right rather than to compensate a claimant for damage or loss occasioned as a consequence of the negligence of the defendant.

The risk-based approach to causation in a Convention claim is best demonstrated by the Sarjantson[21] case in which the claimant’s Article 2 and 3 claims against the police for a delayed response to a serious incident of public disorder during which the claimant was seriously injured were successful. The Court of Appeal stated:-

…The duty to provide protection arose at the time when the first emergency call was made. At that time, it was impossible to know whether and, if so, how quickly an assault would take place. There was therefore no reason at that time for the police to believe that immediate attendance was not required. Indeed, the tone and content of the 999 calls suggested that there was every reason to think that there was an imminent likelihood that the young men would injure or kill one or more persons who were in the vicinity.

As the (European) court made clear at para 116 in Osman, it must be established that the police knew or ought to have known “at the time” of the existence of a real risk and immediate risk to the life of the individual from the criminal acts of a third party. This implies that compliance with article 2 should not be determined with the benefit of hindsight. This is confirmed by the court saying at para 116 “…and that (the authorities) failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.”[22]

Applying this risk-based approach to causation the Court of Appeal in Sarjantson rejected the defendant’s argument that the delay was of no consequence as officers would not have arrived at the scene until after the claimant had been assaulted had they been dispatched immediately. In finding violations on the facts, the court acknowledged that whilst the delayed response would perhaps be relevant to the issue of remedy, it was not relevant to liability[23]. It should be noted that the test requires a defendant only to take reasonable measures in the expectation of avoiding an attendant risk and not measures to eliminate the stated risk entirely.

Given that the test for causation in Convention claims is acknowledged to be looser and so arguably weaker than that applied in tortious claims, how then might a defendant go about meeting such claims?

Taking the, admittedly exceptional, current COVID-19 crisis in the context of the custodial environment by way of example and when considering that the causation test would not require a defendant to entirely eliminate the risk of transmission of the virus, it will generally be necessary for a defendant to demonstrate the measures taken to mitigate the risk of transmission and infection. These steps would be likely to include (although would not necessarily be limited to) the following:-

  • Adequate screening of incoming inmates for actual or suspected symptoms;
  • Separation of those inmates suspected or confirmed to have the virus and/ or those inmates at increased risk of infection (by reason of pre-existing vulnerability);
  • Isolation of cases of confirmed infection in accordance with established protocols (e.g. Cohorting);
  • Adequate treatment.

As Sarjantson demonstrates, for causation purposes it would not be sufficient merely for a defendant to demonstrate that such systems existed but that they existed and operated in such a way as to reasonably mitigate the risk transmission and onward infection.



Claims against a public authority under the Human Rights Act 1998 (“HRA”) must be commenced before the end of the period of one year beginning with the date on which the act complained of took place (s.7(5)(a)).  Unlike with negligence claims this short deadline also applies to actions brought by minors and other protected parties.

This deadline may seem extremely short but a number of court decisions highlight the fact that when considered in the context of the three-month outer limit for challenging public bodies by way of judicial review, together with the absence of postponement provisions or a rebuttable presumption in favour of an extension for minors, or those who otherwise rely on others to vindicate their rights, it is clear the legislature intended HRA claims remain subject to tight limitation periods, to ensure they are dealt with swiftly and economically.  All such claims are, by definition, brought against public authorities and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event (per Jay J. in Bedford v Bedfordshire[24]).

A limitation defence must be expressly pleaded.  It does not bite automatically and should therefore be at the top of the defendant’s list of considerations when presented with a claim.

When determining whether a limitation defence exists, particularly where breach of a number of Rights is alleged, it should not be assumed any breach is, or was, a continuing act, or that conduct extending over a period of time is automatically concluded at the end of that particular period.  This may be more likely to arise in cases where there has been a death, as the date of death may be later, sometimes significantly, than the date a potential cause of action accrued. Parties should therefore take care to identify the proper accrual date of each cause of action.

The statutory defence is not absolute and, in common with tortious claims, the court has discretion to extend to such longer period as it considers equitable having regard to all the circumstances (s.7(5)(b)), subject to any rule imposing a stricter time limit in relation to the proceedings in question.  The burden, though not necessarily a heavy one, is on the claimant to bring him or herself within s7(5)(b).  He or she must, to the ordinary civil standard, demonstrate why it would be equitable, in all of the circumstances, to deny a defendant the right to a limitation defence.

The HRA does not define or otherwise provide guidance as to what the court should consider when determining the issue however, the court’s discretion is wide, and per Lord Dyson JSC in Rabone v Pennine Care NHS Foundation Trust (Inquest and Others Intervening)[25], it will often be appropriate for the court to consider factors such as those set out in Section 33 of the Limitation Act 1980 for extending time to bring a negligence claim.  These include: the competing degree of prejudice as between the parties if an extension is or is not granted; the length and reasons for the claimant’s delay; the effect of delay on the cogency of the evidence likely to be adduced by the parties; the conduct of the defendant after the cause of claim arose; the extent to which the claimant acted promptly and reasonably once he knew the defendant’s acts or omissions might be capable of giving rise to an action for damages; the steps if any taken by the claimant to obtain legal or other expert advice, and the nature of the advice received.

Nevertheless the courts have made clear The words of section 7(5)(b) of the HRA meant exactly what they said and the court should not attempt to rewrite it….”, per the Court of Appeal in Dunn v Parole Board[26], Thomas LJ at 30, affirmed by LJ Dyson JSC in Rabone who also said there can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.” (as at 75).

Each case will turn on its particular facts however, guidance as to how the court is likely to approach the issue of limitation, derived from a number of cases, including Dunn, Rabone, Bedford, AP v Tameside MBC[27], and Alseran and Others v MOD [28] can be summarised as follows:

  1. Objective and subjective factors can be considered.
  2. The broad merits and underlying value of a claim are relevant, but not determinative, factors.
  3. Lack of capacity and therefore reliance on another to vindicate rights is obviously a relevant factor, but not determinative.
  4. The length of the delay. A delay of 18 months, i.e. two and a half years from the end of the relevant events was “considerable”, more so in the context of the start of the relevant events being three or four years prior to the determination of the application to extend time.
  5. The impact the passage of time may have on the defendant’s chances of locating documentation and witnesses, and likely quality of those witnesses’ memories, and what steps the Defendant has taken to obtain, and test the cogency of, such evidence.
  6. The length of time the claimant’s family and legal advisers have known the essential facts giving rise to the HRA claim, and any potential delay in pursuing a HRA claim prior to expiry of the primary limitation period.
  7. The involvement of specialist legal advisors and the adequacy of any explanation given for their part in any delay.
  1. Delays in obtaining funding, settling pleadings, or difficulties in obtaining disclosure from third parties do not, of themselves, make it equitable to extend time by the length required.
  2. Prejudice to the claimant does not automatically equate to injustice.
  3. Whether the claimant has already received “just satisfaction”.
  4. Whether the defendant’s prior conduct makes it inequitable to take the point on limitation.
  1. The weight to be given to any factor is a matter for the court determining the issue on the facts of the particular case.

Lawful Interference with or Restriction of Rights

Qualified Rights, including, amongst others, Article 8 (right to respect for private and family life), may legitimately be interfered with if it is in the interest of the wider community or to protect the rights of others.  In the case of competing interests of two individuals or the wider community, the court must balance the respective positions to achieve a fair outcome.

Legitimate aims under the HRA include, inter alia: protecting the rights of others; national security; public safety, and the protection of health.  However, any interference pursuant to a legitimate aim must be limited to that which is absolutely necessary to achieve one of the aims in the HRA, to be judged as necessary in a democratic society.

Conversely, some rights are absolute and can never be breached, including the right not to be tortured or treated in an inhuman or degrading way (Article 3).


Section 8 HRA 1998 provides:-

(1)        In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2)        But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(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.

(4)        In determining—

(a)        whether to award damages, or

(b)        the amount of an award,

court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

Article 41 of the Convention states:-

If the [European Court of Human Rights] finds 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 reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

Three principle features arise from the framework:-

  1. The court has a discretion as to the nature of any relief awarded – s8(1);
  2. Damages are not automatic – s8(3);
  3. The guiding principle in the assessment of relief is that of “just satisfaction” – s8(4).

The differentiation between the regime for relief under the Human Rights Act and that for more traditional civil claims was explained by Lord Brown in Chief Constable of Hertfordshire Police v Van Colle (2008) UKHL 50 at paragraph 138:

…Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter… It is also why section 8(3) of the [HRA] provides that no damages are to be awarded unless necessary for just satisfaction…

Just Satisfaction

In March 2007, the President of the European Court issued a Practice Direction outlining the approach of the court to “just satisfaction” claims[29]. The Practice Direction and relevant caselaw from the European Court has been considered domestically (D v Commissioner of Police of the Metropolis (2014) EWHC 2493 (QB) (2015) 1 WLR 1833 and Alseran & Others v MOD (2017) EWHC 3289 (QB)) from which the following principles arise:-

  1. An award commensurate to just satisfaction is not an automatic consequence of a finding that there has been a violation of a Convention right. The finding of a violation itself, without additional compensatory award, can amount to just satisfaction – R (Greenfield) v SSHD (2005) UKHL 14 at para 7;
  2. A clear causal link between the damage claimed and the violation found by the court must be established before financial compensation will be awarded – Kingsley v United Kingdom (2002) EHRR 10 at para 40;
  3. Pecuniary damage in consequence of the violation will normally be awarded in full as just satisfaction;
  4. Non-pecuniary damage, such as mental or physical suffering, can be compensated consistent with equitable standards emerging from the caselaw with awards not confined to cases involving supportive medical evidence. The Court is able to infer and award compensation for distress, anxiety, frustration, injustice, prolonged uncertainty and powerlessness by reference to the nature of the violation;
  5. Given the purpose of the relief claimed, it is not the practice of the Court to award punitive or exemplary damages;
  6. The Court will consider the overall context of the violation and not simply the loss or damage sustained by the applicant in determining what, if any, award is necessary to afford just satisfaction – Al Jedda v United Kingdom (2011) 53 EHRR 23 at para 114 and Varnava v Turkey (2009) ECHR 1313 at para 224;
  7. “Overall context” can include consideration of the conduct of the state, such as the manner in which the violation took place – Anufrijeva v Southwark London BC (2003) EWCA Civ 1406, (2004) QB 1124 at para 68;
  8. The Court will also take account of the applicant’s conduct and may reduce the amount of any award for reasons including that the situation complained of or amount of damage is due to the applicant’s own fault – McCann v United Kingdom (1995) 21 EHRR 97 at para 219;

The calculation of a financial award

The European Court has mainly steered clear of establishing a scale of compensatory award by reference to particular case types, preferring to be guided by equitable principles applied in the circumstances of the instant case – see Greenfield (above) at paragraph 19.

The Court’s calculation of financial compensatory awards has been held not to carry precedential effect – see R (Sturnham) v Parole Board for England and Wales (2013) UKSC 47, (2013) 2 AC 254 at paragraph 105.

Domestically, and whilst an approach to the calculation of financial compensatory awards based entirely on domestic scales of damages was rejected by the House of Lords in Greenfield (at paragraph 18) that is not to say that such scales are irrelevant, particularly when the established violation is akin to a private wrong – see Sturnham at paragraph 15.

In a case involving an indirect victim following a death in custody and in which a financial compensatory award is considered to amount to just satisfaction, the domestic court will likely be guided by factors including the nature and proximity of the familial link between the deceased and the victim, the nature of the breach and the seriousness of the damage suffered by the victim in its assessment – see Rabone v Pennine Care NHS Foundation Trust (2012) UKSC 2 at paragraph 85.

Costs in Human Rights Act 1998 claims: Recoverability of Inquest costs

The Court has a general discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid (CPR r 44.2), however the usual rule is that costs follow the event and the unsuccessful party pays the costs of the successful party. Applicable part 36 offers may displace those usual rules, together with the factors listed in CPR r 44.2(3). One particular feature in claims for breaches of Article 2 is whether, and the extent to which, the costs of representation at the inquest are recoverable in civil proceedings. This article considers this issue in more detail.

Coroners have no power to award costs of legal advice or representation at inquests. Where a successful civil claim follows, claimants will therefore attempt to recover the costs of the inquests as well as the costs of the civil proceedings from the defendant. Although HRA claims can often result in relatively modest awards for damages, the associated costs claimed can amount to many times’ the award sought. The starting point is Section 51 of the Supreme Court Act 1981 which enables the court to award costs “of and incidental to” civil proceedings.

Inquest costs may be recovered, however the threshold is high. In Re Gibson’s Settlement Trusts [30]it was held that pre-action costs were, in principle, “incidental” to the proceedings however a threefold test had to be satisfied to recover the costs: (1) proven use and service in the civil action; (2) bear relevance to an issue in the proceedings; and (3) be attributable to the paying party’s conduct.

That principle was challenged in the context of inquest costs in in Roach v Home Office[31]. The Home Office’s arguments that the costs of one set of proceedings were never recoverable as costs of and incidental to, another set of proceedings, was rejected. The extent of the recoverability of those costs depends on the specific facts of each case.

At first instance, Master Hurst allowed the Claimant to recover only 50% of the costs of attending the inquest as, whilst some of those costs were for questioning witnesses and obtaining evidence for the subsequent civil claim, there was also a dual purpose to the inquest to assist the coroner. This approach was rejected on appeal as the purpose of the inquest was a relevant consideration but not decisive. In cases where the inquests costs are significant in comparison to the amount at stake or the direct costs of the civil proceedings, then proportionality will be the central consideration.

The following cases are more recent examples of the applications of these principles in Article 2 claims.

Lynch and Others v Chief Constable of Warwickshire Police and Others [32]

The costs of attending pre-inquests reviews and a ten-week inquest (attending by leading and junior counsel, senior solicitor and junior fee earner) were sought. The Defendant argued that this approach had been unnecessary and disproportionate. Further, it was argued that, as a result of extensive pre-inquest disclosure, it was not necessary for the Claimants to attend the inquest in order to plead their civil case (therefore the costs of attendance did not meet the first limb of the Gibson test).  Master Rowley stated: “cases involving long running inquests invariably stand the evidence gathering approach in Roach on its head. Instead of it being a cost-effective method of gathering evidence, it becomes a disproportionate expensive way of doing so”. Master Rowley preferred the Defendant’s approach which advocated a forensic analysis of the costs to determine if the time spent was incidental to the civil claim. Allowable profit costs included time spent when certain witnesses were given evidence (whether asked questions or not by the Claimant) and a note taker at other times. However, the costs of the following were not allowed: attendance on procedural matters relating to the inquest (e.g. summing up, jury questions, pre-inquest review); time during which witness statements were being read; costs of leading counsel; costs relating to client care. Significant pre-inquest disclosure had disposed of the need for the claimants to be represented at many stages of the inquest in order to obtain sufficient evidence in support of the civil claim

Carla Douglas v (1) Ministry of Justice and (2) Care UK [33]

In this case, the Defendants admitted liability on a joint basis prior to the final hearing of the inquest. When asked by the Claimant which aspect of the claim this related to (i.e. the negligence or HRA claim) and to which factual allegations, the Defendants did not deem it necessary to elaborate further. Master Leonard found that read in context, a full unqualified admission of liability to every claim on the claim form had been made.

The Claimant argued that the inquest allowed her to present a fully particularised and fully pleaded case, which would provide a full and detailed basis for measuring an appropriate award of damages. It would also provide vindication for the claimant regarding the nature of the breaches and of the apology due. The Defendants argued that the question of damages was the only issue remaining and therefore the costs were not recoverable.

Master Leonard found that although the inquest provided details about the failings additional to those identified in the Parliamentary and Probation Ombudsman’s report, he had difficulty in identifying the extent to which, on the facts of that case whether they made or might have been expected to make any material difference to the Claimant’s case on quantum. The additional details which could be expected to emerge from the inquest were unlikely to materially change what was likely to be a relatively modest award of damages.

The Judge did not disallow the inquests costs entirely, but rather considered the above as a significant factor when considering reasonableness and proportionality. Although the new evidence of failures did not add much in terms of quantum, it was not “irrelevant” (applying the Gibson test).

The Judge found that:

  • The costs of attending the inquest were recoverable insofar as they involved securing the disclosure and obtaining relevant witness evidence from these two Defendants (and not other interested parties);
  • Work undertaken in relation to the possible apportionment of liability would not meet the Gibson tests;
  • Participation at the inquest’s general procedural and “housekeeping” matters must be excluded, save where submissions were made;
  • Attendance at the Coroner’s summing up, or waiting for the verdict, was not recoverable.

Fullick v Commissioner of the Police of the Metropolis[34]

The central issue raised on appeal before Mrs Justice Slade was whether the costs judge at first instance had erred in awarding the costs of attending two pre-inquest reviews, preparatory work (including conference with counsel) and attendance at the inquest.

Mrs Justice Slade emphasised that each case must turn on its own facts, applying the test identified in Re Gibson and that the factor of “relevance” was highly important.

Mrs Justice Slade, in refusing the appeal save for the assessment of costs in relation to work done on civil documents, found that although the claim is modest, CPR 44.4 provides that when assessing the costs on the standard basis one of the factors to be taken into account when considering reasonableness and proportionality is the importance of the matter to all parties. Although the claim is small, the claim was not solely about money. The issues raised were not only financial but were of importance to the deceased’s family. The inquest held the police to account in some way for the death. The issues raised during the inquest not only led to settlement, but to an agreement to revise policies. The issues were of wider public importance.

The Defendant had not conceded the cause of death or defects in their procedures prior to the inquest. She noted that inquests can lead to the swift settlement of civil claims.

The costs of the pre-inquest reviews were recoverable as this provided an opportunity for the Claimant to to “engage” with the issues of concern. This included seeking expert evidence to be considered by the coroner and jury, which was ultimately relevant to their conclusion and the matters raised in the civil claim. At the second pre-inquest review, the Claimant’s representatives had raised questions and their concerns with the Coroner that they wished to be raised with a particular witness. This was ultimately relevant to the civil claim.

It is clear therefore that courts have a very broad discretion regarding the recoverability of inquest costs in civil proceedings. Often following a Middleton Article 2 inquest, which asks a wider question of “by what means and in what circumstances the deceased came by their death” and allows judgmental language to be used in the conclusion reached, civil claims are resolved prior to trial and often at an early stage in proceedings. Therefore, even when an early admission is made, some costs of inquest representation have been awarded within the civil claim.


In order for a successful claim for breach of Human Rights the claimant needs to be able to satisfy each of the steps set out above. These claims are not straightforward and a failure to have the appropriate standing or bringing such a claim against a body which is not a public authority will mean a claim will fail.

Case Compendium

Al Jedda v United Kingdom [2011] 53 EHRR 23

Alseran & Others v Ministry of Defence [2017] EWHC 3289 (QB)

Alseran and others v Ministry of Defence [2017] EWHC 3289 (QB)

Anufrijeva v Southwark London BC [2003] EWCA Civ 1406, [2004] QB 1124

AP v Tameside MBC [2017] EWHC 65 (QB)

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] 3 All ER 1213

Bedford v Bedfordshire CC [2013] EWHC 1717 (QB)

Carla Douglas v Ministry of Justice and Care UK SCCO 9 October 2017

Chief Constable of Hertfordshire Police v Van Colle [2008] UKHL 50

Daniel and another v St George’s Healthcare NHS Trust and London Ambulance Service [2016] EWHC 23 (QB)

Dunn v Parole Board [2009] 1 WLR 728

Fullick v Commissioner of the Police of the Metropolis [2019] EWHC 1941 (QB)

G4S Care and Justice Services Ltd v Dawn Luke [2019] EWHC 1648 (QB)

Keenan v UK (2000) 33 EHRR 38

Kingsley v United Kingdom [2002] EHRR 10

Lynch and Others v Chief Constable of Warwickshire Police and others (2014) SCCO 14 November 2014 (Unreported)

McCann v united Kingdom [1995] 21 EHRR 97

Morgan v Ministry of Justice [2010] EWHC 2248

Osman v United Kingdom (2000) 29 EHRR 245

R (Greenfield) v Secretary of State for the Home Department (2005) 1 WLR 673

R (Sturnham) v Parole Board for England and Wales [2013] UKSC 47

Rabone v Pennine Care NHS Foundation Trust CC [2013] EWHC 1717 (QB)

Re Gibsons’s Settlement Trusts [1981] Ch 179

Roach v Home Office [2009] EWHC 312 (QB)

Sarjantson v Chief Constable of Humberside Police (2013) EWCA Civ 1252

TH v Chapter of Worcester Cathedral [2016] EWHC 1117 (Admin)

Vallianatos and others v Greece 29381/09 and 32684/09

Varnava v Turkey [2009] ECHR 1313

YL v Birmingham City Council [2008] 1 AC 95


[1] [2003] 3 All ER 1213 at 1217

[2] Per Lord Nicholls: “ it is difficult to see how a core public authority in question could ever claim to be a victim of an infringement of convention rights A core public authority seems inherently incapable of satisfying the convention description of a victim: ‘any person, non-governmental organisation or group of individuals’ (see art 34; my emphasis). Only victims of an unlawful act may bring proceedings under s 7 of the Human Rights Act, and the convention description of a victim has been incorporated into the Act, by s 7(7). This feature, that a core public authority is incapable of having convention rights of its own, is a matter to be borne in mind when considering whether or not a particular body is a core public authority.” [para 8] [2003] 3 All ER 1213 at 1217

[3] Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another  [2003] 3 All ER 1213 at 1217, paragraph 11

[4] [2008] 1 AC 95

[5] [2016] EWHC 1117(Admin)

[6] The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention of the Protocols thereto….”

[7] European Court of Human Rights Practical Guide on Admissibility Criteria – updated on 31 August 2019

[8] Para 47 Vallianatos and others v Greece 29381/09 and 32684/09

[9] Dolly Daniel and Owen Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016] EWHC 23 (QB)

[10] [2010] EWHC 2248

[11] Ibid at paragraph 70

[12] “Article 2 – What difference does it make?” – Kirsten Mercer and Kate Wilson


[14] Prisoner governors’ Association Evidence to Justice Committee on COVID-19

[15] Professor Coker MB BS MSc MD FRCP FFPH Emeritus Professor of Public Health, London School of Hygiene and Tropical Medicine report dated paragraph 2.9 similar reports have been produced in respect of immigration detention

[16] Osman v United Kingdom (2000) 29 EHRR 245

[17] G4S Care and Justice Services Ltd v Dawn Luke [2019] EWHC 1648 (QB) para 5

[18] Para 111 Keenan v UK (2001) 33 EHRR 38

[19] Osman v United Kingdom (2000) 29 EHRR 245 at paragraph 116

[20] G Turton: “Causation and risk in negligence and human rights law” – Cambridge Law Journal, 79(1), March 2020, pp 148 -176

[21] Sarjantson v Chief Constable of Humberside Police (2013) EWCA Civ 1252, (2014) Q.B. 411

[22] Sarjantson at paras 26-27

[23] Sarjantson at paras 28-29.

[24] CC [2013] EWHC 1717 (QB) as at 76

[25] [2012] UKSC 2, as at 75

[26] [2009] 1 WLR 728

[27] [2017] EWHC 65 (QB),

[28] [2017] EWHC 3289 (QB)



[30] [1981] Ch 179

[31] [2009] EWHC 312 (QB)

[32] (2014) SCCO 14 November 2014

[33] SCCO 9 October 2017

[34] [2019] EWHC 1941 (QB)