Mott & Anor v Environment Agency

Compensation under section 8 of the Human Rights Act 1998 is discretionary and is not assessed as tort damages. Where an unlawful decision has caused direct financial loss, the comparison is ordinarily with the position that would have existed if the unlawful decision had not been taken at all. The court should not construct or speculate about a hypothetical Convention-compliant decision in order to reduce compensation. Where the interference is equivalent to expropriation and no compensation was provided, the fair balance is ordinarily achieved by awarding the actual loss, rather than requiring the victim to bear part of the cost of unlawful state action. Later decisions cannot be treated as unlawful without a properly brought challenge.

The proceedings concerned compensation following the court’s earlier finding that restrictions imposed by the Environment Agency on Nigel Mott’s salmon-fishing licence unlawfully interfered with his property rights under Article 1 of the First Protocol to the Convention. The earlier decision, reported at [2015] EWHC 314 (Admin), was upheld on the A1P1 issue by the Court of Appeal at [2016] EWCA Civ 564 and by the Supreme Court at [2018] UKSC 10.

Mr Mott claimed compensation for losses in 2012–2014 and later years. David Merrett, a joint holder of the fishing right, was permitted to advance a related claim. The central issues were the proper counterfactual for assessing compensation, whether compensation could cover later years, and how claims by joint holders should be dealt with.

1. Compensation for 2012–2014. The court awarded Mr Mott £187,278, representing the net value of the catch lost through the unlawful restrictions, together with interest to be agreed or determined.
2. Under section 8(4) of the Human Rights Act 1998, the court had to take account of Article 41 principles. The remedy remained discretionary and distinct from tort damages. The relevant comparison was the position in which the unlawful catch-limit decisions had not been taken, not a speculative alternative decision which the Agency might later have made.
3. The court could not itself re-take the administrative decision and impose a counterfactual limit. The authorities concerning inevitable detention or release did not justify such an approach where a decision had actually been taken unlawfully. Section 31(2A) of the Senior Courts Act 1981 was confined to asking whether the outcome would highly likely have been substantially the same; it did not confer a general power to determine a materially different decision.
4. The Agency’s proposed assumption of a lawful limit of 60 fish was unsupported by evidence and inconsistent with the earlier findings. The interference concerned the overall reduction in the value of the right, not merely the allocation of an otherwise lawful aggregate catch.
5. Where the interference was equivalent to deprivation and no compensation had been provided, it would be unjust and unprincipled to reduce the actual financial loss because the Agency pursued environmental objectives. A margin of appreciation might be relevant where compensation had in fact been provided and its adequacy was in issue, but that was not this case.
6. The claims for 2015 onwards were rejected. Those limits had not been challenged, and the court could not determine their lawfulness in these proceedings. The later losses were caused by the later limits themselves, not directly by the earlier unlawful decisions.
7. Mr Merrett’s separate claim was refused permission to proceed. The award to Mr Mott covered the whole loss attributable to the jointly held right, and the claimants could resolve between themselves how the compensation should be divided. The Agency could not be required to pay twice.

Mott & Anor v Environment Agency was initially decided at [2015] EWHC 314 (Admin). The Article 1 of the First Protocol finding was upheld by the Court of Appeal at [2016] EWCA Civ 564 and by the Supreme Court at [2018] UKSC 10. The present judgment assessed compensation and dealt with the second claimant’s related claim.