The Dense Fog of Human Rights Costs!
The recent decisions in Re: H (A minor) v Northamptonshire CC 2017 www.bailii.org/ew/cases/EWHC/Fam/2017/282.html and Re CZ (Human Rights Claim: Costs) 2017 www.bailii.org/ew/cases/EWFC/HCJ/2017/11.html has highlighted the differing approaches taken by the Courts in respect of awarding costs in Human Rights cases.
The issue has arisen in care proceeding cases, when as part of those proceedings the Local Authority has breached one or more parties Human Rights. As a result of these breaches, the injured party has sought both declarations that their Human Rights have been breached and damages.
If the problem arises on behalf of the parents/child in Care Proceedings, as they are being legally aided through Public Funding, the statutory charge applies. This means that any damages the injured party receives will be taken from the Legal Aid Agency to pay for their legal costs. This is not just those costs incurred in pursuing the declarations for Human Rights breaches but also those related to the Care Proceedings, due to how the two are interlinked.
Whilst in many circumstances the applying of the Statutory Charge would be completely justified; in Human Rights breach cases the consequence is that the Courts are deciding, on one hand, to award an injured party damages for the breach caused by the state (Local Authority) for then another arm of the state (Legal Aid Agency) to then take those damages away. Whilst legally this may be right, morally is it so?
What is the way forward? If the Court decides damages should be paid then currently the only way to ensure the injured party receives the damages is to award the total of costs incurred.
What the above cases show is the differing approaches taken by the Court, in that in Re H (a minor) Keehan J ensured the parents received the damages but in Re CZ (Human Rights Claim) Cobb J awarded only partial of the costs to be paid by the Local Authority and as such the statutory charge in this latter case will still apply.
It would seem that presently the way forward remains unclear and it can only be hoped that the fog will clear in due course.