R (Ben-Abdelaziz) v Haringey London Borough Council

Under the Human Rights Act 1998, conduct predating 2 October 2000 may generally be relied on defensively, but cannot itself found an offensive claim. The statutory exception for proceedings brought by or at the instigation of a public authority does not cover judicial review initiated and pursued by the applicant. The Crown’s presence in the title is nominal. Section 31(4) of the Supreme Court Act 1981 also prevents damages being obtained through judicial review where the same claim would fail in an action.

The appellants, an Algerian husband and wife seeking asylum, challenged Haringey London Borough Council’s assessment of their needs and proposed dispersal accommodation. They sought judicial review and damages for alleged Convention breaches arising from conduct before 2 October 2000, when the Human Rights Act 1998 came into force.

Longmore J dismissed the damages claim on a preliminary issue. The appeal concerned whether judicial review proceedings were brought by or at the instigation of the Crown for the purposes of section 22(4), and whether damages could alternatively be recovered through judicial review under section 31(4) of the Supreme Court Act 1981.

Appeal dismissed. Lord Phillips MR gave the leading judgment, with which Lord Justice Pill and Lady Justice Arden agreed.

1. The court approved the statutory-purpose analysis in Wilson v First County Trust Limited [2001] EWCA Civ 633. The general scheme of the Human Rights Act 1998 is that pre-commencement acts may be relied on defensively, but cannot ordinarily be used as the basis of an offensive Convention claim. Section 22(4) preserves a limited exception where the public authority itself brought or instigated the proceedings.
2. Judicial review proceedings are initiated and pursued by the applicant against the public authority. The Crown’s presence in the title is nominal and reflects the history of prerogative remedies. The requirement for permission is procedural protection for the court and does not make the Crown the instigator. Judicial review proceedings are therefore neither brought by nor at the instigation of the Crown.
3. Sections 7(1) and 7(3) make the position clear. In judicial review, the applicant is the person bringing the claim under section 7(1)(a). The proceedings do not fall within section 7(1)(b), so section 22(4) prevented the appellants from claiming damages under the Act for the earlier conduct. Longmore J was correct to dismiss that claim.
4. There was also an alternative answer. Section 31(4) of the Supreme Court Act 1981 permits damages in judicial review only where a damages claim brought in an action at the time of the application would have succeeded. An action for damages under the Human Rights Act 1998 would have been barred by section 22(4). The judicial review procedure could not confer a substantive advantage.

The order was appeal dismissed, with no order as to costs. Detailed assessment of the funded client’s costs was directed.

1. Court of Appeal: On 22 May 2001, dismissed the appeal from the decision of Longmore J.
2. Queen’s Bench Division (Administrative Court): On 8 December 2000, dismissed the claim for damages under the Human Rights Act 1998 on a preliminary issue.