The price of freedom

The challenge in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 was not primarily predicated on human rights arguments, or rather rights arising under the ECHR as the current vogue in public law challenges is to emphasise the existence of the same rights at common law. Thus a right to a fair trial at common law and the article 6 right to a fair trial under the ECHR will cover much the same ground: historians will point to the common law origins of the ECHR drafted as it was by British lawyers in the aftermath of World War II and the horrors of the Nazi period: The ECHR rights were cited in argument, as part of the arguments linked to questions of European Union law. But it meant that there was no damages claim in the Unison case: as noted by Lord Reed:

64. The issue concerning the effect of the Fees Order on access to justice was argued before the courts below on the basis of EU law, although some domestic authorities and judgments of the European Court of Human Rights were also cited. Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice, although arguments have also been presented on the basis of EU law and the European Convention on Human Rights. The appellant has also argued the discrimination ground, and has been permitted to advance a new ground of challenge, namely that the Fees Order is ultra vires because it frustrates the operation of a variety of statutory provisions. The argument advanced below on the basis of the Public Sector Equality Duty has not been pursued.

In terms of the discussion of the application of the ECHR through the channel of EU law Lord Reed explained as follows:

108. Article 52(3) of the Charter provides that in so far as the Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the Convention. In considering the application of the first paragraph of article 47 of the Charter, it is therefore necessary to consider the case law of the European Court of Human Rights on the corresponding guarantee in article 6(1) of the Convention: see DEB, para 35.

109. In that regard, one general point to note is the emphasis placed by the Strasbourg court on the protection of rights which are not theoretical and illusory, but practical and effective. That is consistent with the recognition in domestic law that the impact of restrictions must be considered in the real world.

110. The Strasbourg court has accepted that various limitations, including financial ones, may be placed on the right of access to a court or tribunal. In particular, the requirement to pay fees to civil courts in connection with claims or appeals is not in itself incompatible with the Convention. However, such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved: Teltronic-CATV v Poland, Application No 48140/99, judgment given 10 January 2006, para 47. That is consistent with the principle of domestic law that such rights may be curtailed only to the extent reasonably necessary to meet the ends which justify the curtailment.

111. In the present proceedings, the Court of Appeal recognised that the fees payable in proceedings brought for the enforcement of rights conferred by EU law must be proportionate, but construed that requirement as meaning that the “basic question is whether the fee payable is such that the claimant cannot realistically afford to pay it”, or whether the difficulty of paying the fee was “such as to make the payment of the fee impossible in practice” (paras 41 and 43). Although the court accepted that the introduction of fees had the effect of deterring a very large number of potential claimants who might otherwise have brought proceedings to enforce rights conferred by EU law, it felt unable to infer that “the decline [in the number of claims] cannot consist entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to” (para 68: original emphasis). Since, in its view, it had not been shown that payment of the fees was impossible, it concluded that the requirement to pay them was proportionate.

112. However, under the Convention, and under EU law, the ability to pay fees is not determinative of their proportionality: it is merely one among a number of relevant factors. As the Strasbourg court has repeatedly stated, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed the right of access to a court: Teltronic-CATV, para 48. It has emphasised that financial restrictions on access to a court which are unrelated to the merits of a claim or its prospects of success should be subject to particularly rigorous scrutiny: Teltronic-CATV, para 61. In relation to the phase of the proceedings at which the restriction has been imposed, the court regards it as significant if non-payment of a fee may result in a claim’s never being examined on its merits: Teltronic-CATV, para 61.

113. The fact that proportionality is not determined by ability to pay, and also the importance of a practical approach to the assessment of whether there has been an interference with the right, are illustrated by the case of Stankov v Bulgaria (2009) 49 EHRR 7. The case is particularly relevant to the present proceedings as it demonstrates that even a fee which the litigant can afford can violate the right of access to justice. The applicant in that case was required to pay, at the conclusion of the domestic proceedings, a fee equivalent to 90% of the compensation which had been awarded to him. The fee was held to violate article 6(1), although the applicant was able to pay it, and despite the fact that his case had been heard. Although the aims pursued by the imposition of the fee were compatible with the administration of justice, the fee was disproportionate in view of the difficulty of assessing the likely award in advance (which had led the applicant to overstate the amount of his claim, leading to liability to a higher fee), taken together with “the relatively high and totally inflexible rate of court fees” (para 67).

114. The Lord Chancellor argues that that case should be distinguished from the present case, on the basis that it concerned domestic proceedings in which the state was the defendant. Certainly, that feature made the violation of article 6(1) particularly egregious: the state was taking away with one hand the compensation which it had been ordered to pay with the other. Nevertheless, the same principles would have equally applied in proceedings between private parties. As the court stated:

“In practical terms, the imposition of a considerable financial burden due after the conclusion of the proceedings may well act as a restriction on the right to a court. The costs order against the applicant constituted such a restriction.” (para 54)

That would be so because of the size of the financial burden, regardless of the identity of the defendant.

115. That is illustrated by the case of Kniat v Poland, Application No 71731/01, judgment given 26 July 2005, which concerned fees payable in divorce proceedings. At the conclusion of the proceedings, the applicant was ordered to pay a court fee of 10,000 PLN. She was able to pay it, having received a share of the matrimonial property amounting to 300,000 PLN. Nonetheless, the imposition of the fee was held to violate article 6(1), since the 300,000 PLN constituted apparently her only asset, and it did not seem reasonable to demand that she spend part of it on court fees, rather than build her future and secure her and her children’s basic needs after the divorce (para 44). A further illustration is the case of Kordos v Poland, Application No 26397/02, judgment given 26 May 2009, which concerned fees payable in an action of damages between private parties. The applicant was awarded damages of 20,000 PLN and was required to pay a court fee of 3,726 PLN. The imposition of the fee was held to violate article 6(1), on the basis that the sum awarded was apparently her only asset, and it did not seem reasonable to demand that she spend it on the payment of the court fees rather than on securing her basic living needs. These judgments provide further support for the view that, particularly in cases involving modest financial awards (or none at all), the fees imposed by the Fees Order cannot be justified.

It follows that it seems arguable, that individuals who have had good claims in the ET, stifled by the imposition of tribunal fees have viable claims against the government under the Human Rights Act 1998 for damages for breach of their article 6 rights.

These claims could accordingly be very valuable, particularly in the more substantial discrimination claims. The court’s approach to assessing damages under article 6 remains that set out in the case of Gas and Electricity Markets Authority v Infinis plc [2013] EWCA Civ 70 where the Court of Appeal held:

26 The judge correctly stated that, applying the Strasbourg jurisprudence, the basic principle when deciding whether to award damages and the amount of any award is restitutio in integrum: see paragraph 105 of the judgment. The Authority submitted that this was an “oversimplification” which failed to distinguish between the role that compensation plays in human rights cases and in cases of breaches of statutory duty. Paragraph 56 of the Court’s judgment in Anufrijeva v Southwark LBC [2004] QB 1124 was cited in support of this proposition.

27 In the present case Infinis has been wrongly deprived of a pecuniary benefit to which it was entitled by statute. The amount of the “lost” benefit can readily be calculated. In these circumstances restitutio in integrum is manifestly appropriate. The Authority’s submissions do not take sufficient account of paragraph 59 of Anufrijeva :

“The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 ” and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.” (emphasis added)

The authorities principally relied on by the Authority were not dealing with readily calculable pecuniary loss, but with breaches of Convention rights which were not capable of being computed in terms of financial loss. There is no dispute that the breach of Infinis’ Convention rights caused it significant pecuniary loss and that that pecuniary loss was capable of being assessed. The judge was entitled to conclude that there was no good reason for departing from the usual approach to the assessment of such a loss.

It remains to be seen whether the government will move to establish a compensation scheme, or leave it to individuals to litigate their claims for damages through the courts.

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