In R (Faulkner) v Director of Legal Aid Casework  EWHC 717 (Admin), Mostyn J determined an issue which has application, by analogy, to a growing concern in the Court of Protection about the difficulties in securing damages for breaches of P’s human rights.
The Supreme Court had previously held ( UKSC 23) that where a prisoner cannot prove that, but for the delay in holding a Parole Board hearing, s/he would have been released, s/he will nevertheless generally receive a modest award of damages for feelings of frustration and anxiety where the period of delay has been for three months or more. Prisoner Sturnham was accordingly awarded £300. However, higher awards would be made where, but for the breach, the prisoner would have been released earlier. Prisoner Faulkner had shown on the balance of probabilities that he would have been released if his review had taken place 10 months earlier and was award £6,500 for breach of Article 5(4).
The issue in the present case was whether that sum of £6,500 should be subjected to the Legal Aid Statutory Charge, following the costs arising from Supreme Court’s decision. If it was, he would recover nothing. For those unfamiliar, the reasons for the statutory charge are explained in its accompanying Manual:
1.The statutory charge is designed to:
- put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v Eli Lilly & Co  3 All ER 94 at 97 to 98)
- ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
- deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.…
3. The law that creates the statutory charge is based on the solicitor’s charge. The principle behind the solicitor’s charge is that it is fair for solicitors to be able to take their costs out of any property their clients recover or preserve because of the services provided.
The statutory charge can be waived where it is equitable to do so if (a) the proceedings have a significant wider public interest and (b) it is cost-effective to fund particular claimants. Mostyn J held that these two issues leading to the waiver decision must be determined either at the beginning or during the case. Moreover, it was not a violation of Faulkner’s human rights to have his damages subject to the statutory charge:
- I accept that an award of damages made under Article 5 (5) of the European Convention on Human Rights is a serious matter. Detention by the State is, on any view, a very bad business. The award of damages – although they are customarily modest – should reflect the fact that it is only in Article 5 (5) of the Convention that compensation is mentioned. However I do not accept that awards of damages for State detention pursuant to the Convention are a class apart from all other types of damages. I do not accept that because they are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not. Naturally, State detention is a bad business but the consequences of many personal injuries are far more long-enduring than temporary State detention as happened in this case by virtue of delay in convening a Parole Board hearing.
- It is for these reasons that I reject the argument that there is some kind of special status or numinous quality to be attached to these damages. These damages are to be treated under the costs regime, in my judgment, in exactly the same way as any other damages. It is therefore for these reasons that the claim for judicial review is dismissed.
What often matters most in human rights cases is a judicial declaration of a violation. However, there will be cases in the court has decided that monetary compensation is required in order to give the victim just satisfaction.
Unless there is full cost recovery, what the State awards with one hand (damages), it takes away with the other (the statutory charge). The waiver is now governed by the Civil Legal Aid (Statutory Charge) Regulations 2013 (SI 2013/503). Requiring clarity from the Legal Aid Agency as to whether the condition precedents to a waiver decision (significant wider public interest and cost-effectiveness) have been satisfied before the case is over ensures that those benefitting from legal aid know whether a waiver of ‘is in the offing’.
An allied problem which is of particular difficulty for Court of Protection practitioners is what is to happen where a claim under the HRA is brought at the conclusion of proceedings in the COP. In the editors’ experience, the Legal Aid Agency adopts an inconsistent approach as to whether (1) such a claim should be brought within the COP, or in the County or High Court upon the basis of declarations made in the COP; and (2) in either case, whether in the event of damages being awarded, the LAA will seek to recoup only the costs of the claim under the HRA or the entire costs on the legal aid certificate, including the costs of the underlying “substantive” COP proceedings. We are aware that there may be a judicial review in the offing in relation to a similar issue that has arisen in the context of claims being brought on behalf of children arising out of care proceedings. We will bring you news of developments in this area as soon as we have it, but in the interim our strong advice (not, of course, legal advice on the facts of any individual case) is to extract from the LAA as early as possible a statement in writing as to what they will do on the facts of the particular case: experience has taught that setting out a clear proposal for how to proceed with an explanation of why such is likely to result in a speedy and proportionate of the HRA aspects of the claim together with a request for confirmation that this is agreed is likely to achieve better results than asking an open-ended question as to what the LAA would like.
 Local guidance in Staffordshire, brought to our attention by Andrew Bagchi QC, has provided for a 3 month stay (from 23 February 2016) on all “free-standing” actions in such claims in that area pending clarification of the position.
[A version of this note appeared in the April 2016 39 Essex Chambers Mental Capacity Law Newsletter]
[Update October 2016: We understand that the Staffordshire guidance (the current status of which we do not know) was not issued with the approval or indeed knowledge of the Official Solicitor and there has been no such judicial review brought].