Warsama & Anor v The Foreign And Commonwealth Office & Or (Bill of Rights - basis of damages in Convention Claims - loss of a chance - costs)

Parliamentary privilege under Article IX of the Bill of Rights 1689 bars claims which challenge the correctness of a parliamentary report or seek damages for its publication. It does not necessarily bar claims concerning the inquiry’s process, including failures to give notice of proposed criticism or an opportunity to respond. In a Convention claim, causation and just satisfaction may be assessed by reference to a lost substantial chance, rather than solely by the common-law balance-of-probabilities approach. A claim is not de minimis merely because some pleaded causes of action are barred, where substantive process-based claims remain. Costs ordinarily follow the successful party.

The claimants brought Human Rights Act claims concerning the Wass Inquiry Report into alleged child abuse in St Helena. They alleged breaches of Article 8 arising from the inquiry’s constitution, conduct and failure to provide adequate forewarning or an opportunity to respond. The defendants relied on Parliamentary Privilege and sought strike out or summary judgment. The court had to determine the effect of privilege on the pleaded claims, whether any process-based claims remained, and which party had succeeded for costs purposes.

1. Effect of Parliamentary Privilege. The earlier judgment determined that the claims were not wholly defeated by Article IX of the Bill of Rights 1689. Privilege barred claims which impugned the content or correctness of the Wass Inquiry Report, and claims for harm consequential upon publication of that content. It did not bar claims concerning the decision to establish the inquiry, its procedure, forewarning, requests for explanations, or disclosure decisions, provided those claims did not challenge the report’s correctness or seek remedies for its publication.
2. Surviving process claims. The Particulars of Claim sufficiently alleged Article 8 breaches arising from the inquiry process and pleaded that those breaches caused harm to professional standing. The pleading also supported an argument that proper safeguards might have produced a less critical outcome. The court did not finally determine the merits or causation.
3. Convention causation and remedy. Applying the approach in CC Herts Police v Van Colle [2008] UKHL 50, the court held that a Convention claim may proceed on a loss-of-a-substantial-chance basis. The relevant chance was that compliance with Article 8 would have avoided the alleged professional harm or produced a less adverse inquiry outcome. Just satisfaction might also be available for the denial of fair process itself if breach were established.
4. Disposition and costs. The claims were not devoid of substance and were not rendered impermissible by privilege. The defendants’ applications for strike out or summary judgment were dismissed. The claimants were the successful parties, and the defendants were ordered to pay the costs of the applications and hearing on the standard basis. Permission to appeal was granted to both sides.

The judgment was supplemental to the court’s earlier decision in Warsama and Gannon v Foreign and Commonwealth Office and others [2018] EWHC 1461 (QB). The present court dismissed the defendants’ applications and granted permission to appeal to the Court of Appeal.