KB & Ors, R (on the application of) v Mental Health Review Tribunal & Anor

Damages for breach of Article 5.4 are not automatic. Under section 8 of the Human Rights Act 1998 and Article 5.5, an award is required only where necessary to afford just satisfaction for proved pecuniary or non-pecuniary damage. The assessment is compensatory and restitutionary, not punitive. A claimant seeking compensation for loss of liberty or an earlier favourable tribunal decision must prove the relevant outcome on the balance of probabilities; damages are not awarded for loss of a chance as such. The relevant period is the unlawful delay between the date when the hearing should have occurred and the date of the actual hearing. Significant frustration or distress may constitute compensatable damage, with particular regard to the vulnerability of detained mental health patients, but ordinary disappointment is insufficient. Exemplary damages are unavailable for judicial acts done in good faith.

The claimants were detained patients who had applied to the Mental Health Review Tribunal for review of their detention. In earlier judicial review proceedings, the court held that delays in hearing their applications infringed Article 5.4. The present proceedings determined whether damages were payable and, if so, their amount.

The issues included the effect of sections 8 and 9 of the Human Rights Act 1998, Article 5.5, proof of loss of liberty or a favourable decision, compensation for distress, the relevant period of delay and exemplary damages.

1. Damages under section 8 of the Human Rights Act 1998 are discretionary and must be necessary to afford just satisfaction. Article 5.5 requires an enforceable right to compensation, but does not compel an award in every case. A declaration of breach may itself provide sufficient just satisfaction.

2. The court was required to take account of Strasbourg jurisprudence, but there was no clear and constant European approach to damages for distress following a breach of Article 5.4 without unlawful detention. The domestic court could therefore determine the applicable principles, taking account of European awards while remaining free to apply an adequate UK measure of compensation.

3. The purpose of damages is compensation for injury, no more and no less. They should not generally punish the public authority, mark disapproval, deter future breaches or reflect the importance of the right independently of injury. Comparable domestic damages may guide the assessment; there was no justification for systematically awarding less under the Human Rights Act than for a comparable tort.

4. Loss of a chance of discharge, or loss of opportunity as such, was not compensatable. A claimant alleging that an earlier tribunal would probably have directed discharge had to prove that allegation on the balance of probabilities. The relevant period was the period of unlawful delay, assessed impressionistically rather than by a fixed daily rate.

5. Article 5.4 does not prohibit every cancellation or postponement. The question is whether the eventual decision was speedy, and whether the duration of the postponement caused the breach. Mental health cases did not attract special legal rules, but the vulnerability of detained patients was a significant factual consideration.

6. Frustration and distress were compensatable only if significant enough to justify compensation for non-pecuniary damage. Contemporaneous medical records were important evidence of the intensity and causal effect of distress. Section 9(3) prohibited exemplary damages for judicial acts done in good faith.

7. Awards were made to PD (£1,000), GM (£1,000), JR (£4,000), MK (£1,000), TB (£750) and B (£1,000). No damages were awarded to KB or LB because the findings of breach were sufficient just satisfaction.

The judgment records earlier judicial review decisions finding breaches of Article 5.4, including [2002] EWHC 639 (Admin) and [2002] EWHC 1553 (Admin). The present judgment determined the consequential damages claims.