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21.A different approach to damages may apply in respect of a HRA claim, to one brought in false imprisonment.  Section 8 attaches pre-conditions to an award of damages under the HRA in particular that no award of damages may be made unless the Court is satisfied having regard to all the circumstances that the award is necessary to afford just satisfaction to the person in whose favour it is made.  Further in determining whether to award damages and if so how much, the Court must take into account the principles applied by the ECtHR in relation to the award of compensation under article 41 ECHR.  However the discretionary nature of damages under the HRA may have less impact in relation to article 5 claims, an applicant has an enforceable right to compensation if he is detained in contravention of the provisions of that article: article 5(5).   As regards the quantum of damages, it is not entirely clear whether the approach in Thompson & Hsu (discussed above) should be applied.  In general the ECtHR (whose approach must be taken into account pursuant to section 8(4) HRA) has disavowed the application of domestic scales of compensation42.  Although on at least one occasion the ECtHR appeared to have regard to Thompson & Hsu rates in assessing quantum43.  In Anufrijeva v Southwark LBC44 the Court recognised that in article 5 cases where the claimant should not have been detained (as opposed to where there was simply an infringement of article 5(4) by virtue of delay in determining the legality of his detention45) there was “a close comparison with the consequences of the tort of false imprisonment”46 and that it was not correct that damages should be on the low side compared to those awarded in common law tort actions.  Lastly, it is well established that exemplary damages are not awarded by the ECtHR and have not been awarded in claims brought thus far under the HRA.

Judicial Review Application or Private Law Action?

42 See for example Curley v UK (2000) 31 EHRR 401 and R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14 at 17 – 19.

43 Perks v UK (1990) 30 EHRR 33; acknowledged by Lord Bingham in Greenfield at para. 18.

44 [2004] 1 QB 1124.

45 Compensation in those circumstances was considered and awards made in R (KB) v South London and South and West Regional Mental Health Review Tribunal [2004] QB 936.

46 See paras 72 – 74.

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