KB & Ors, R (on the application of) v Mental Health Review Tribunal & Anor

Factual and Procedural Background

The Claimants are or were patients detained under powers conferred by the Mental Health Act 1983 ("the MHA"). They applied to the Mental Health Review Tribunal for review of their respective detentions, but experienced delays in the hearings. In an earlier judgment, the court held that their rights under Article 5.4 of the European Convention on Human Rights to speedy hearings had been infringed and ordered damages to be determined later. Another related case concerning a separate Claimant similarly found a breach of the right to a speedy hearing and directed damages to be assessed subsequently. The present judgment concerns the hearing of damages claims for all Claimants, raising issues of principle under the Human Rights Act 1998 ("the HRA"). None of the Claimants claimed pecuniary loss; claims were for frustration, distress, and in some cases, deprivation of liberty or damage to mental health caused by the delay. The Defendant is the public authority responsible for the Mental Health Review Tribunals.

Legal Issues Presented

1. To what extent must the High Court follow the rules applied by the European Court of Human Rights in awarding damages?
2. Given a breach of Article 5, are awards of damages obligatory to provide "just satisfaction" under the HRA and Article 5.5?
3. Are feelings of frustration and distress caused by delay in tribunal hearings recognized by the European Court as justifying damages?
4. Is there power to award exemplary damages in such cases?
5. Should damages be measured by a European standard or by a domestic UK measure?
6. If a domestic measure applies, should awards be modest and lower than comparable English tort awards?
7. What is the relevant period for which damages are to be awarded?
8. If there is a real possibility that an earlier hearing would have resulted in discharge, are damages assessed on loss of chance or must the claimant prove discharge on a balance of probabilities?
9. Are there any special principles applicable to mental health cases?

Arguments of the Parties

Claimants' Arguments

• An award of damages is compulsory following a breach of Article 5.4; a declaration alone is insufficient.
• Damages awarded should be substantial to reflect the seriousness of the breach.
• Exemplary damages may be awarded, particularly in the case of one Claimant.
• The relevant period for damages should be from detention to tribunal decision, or from application to decision, or as otherwise defined by tribunal rules.
• Damages should reflect the fundamental nature of the right breached and take into account systemic and long-term breaches.
• Damages should not be lower than comparable tort awards.

Defendant's Arguments

• Damages are not necessarily awarded in every breach; a declaration may suffice.
• Article 5.5 requires an enforceable right to compensation but not an automatic award absent proof of damage.
• Damages for distress and frustration should be modest.
• Damages should relate only to the period of unlawful delay between when a hearing should have taken place and when it actually did.
• Exemplary damages are prohibited by section 9(3) of the HRA.
• Damages for loss of opportunity or loss of chance should not be awarded unless there is proof on the balance of probabilities.
• Domestic courts should apply a UK measure of damages, which may be modest compared to tort damages, reflecting competing public interests and resource limitations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R on the application of KB and ors v Mental Health Review Tribunal [2002] EWHC 639 (Admin)	Established breach of Article 5.4 right to speedy hearing and ordered damages to be assessed later	Foundation for current damages claims hearing
R on the application of B v Mental Health Review Tribunal [2002] EWHC 1553 (Admin)	Held tribunal failed to hear application speedily; damages to be heard subsequently	Claim of B heard with others in this judgment
R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin)	Damages under HRA for breach of Convention rights; only second judgment on such issues	Used as comparative authority for damages assessment
Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602	Damages for loss of chance principle	Discussed in relation to awarding damages for loss of chance of discharge
Thompson v Commissioner of Police of the Metropolis [1998] QB 498	Aggravated damages principles	Referenced regarding compensatory nature of aggravated damages
Alconbury [2001] UKHL 23	National courts obliged to take account of ECtHR jurisprudence	Guided court to follow clear and constant jurisprudence
Kingsley v UK (2002) 35 EHRR 10	Principle of restitutio in integrum and causation of damage	Applied principle that damages awarded only for damage caused by breach
Johnson v UK (1999) 27 EHRR 440; DG v Ireland (2002) 35 EHRR 33	Applicant conduct affecting damage assessment	Considered contributory conduct in damage awards
Wassink v The Netherlands [1990] ECHR 1253/86	Requirement of proof of damage for compensation under Article 5.5	Supported that compensation depends on showing pecuniary or non-pecuniary damage
Nikolova v Bulgaria [2001] EHRR 3	Damages for distress not awarded absent unlawful detention	Supported that finding of violation may be sufficient just satisfaction
Niedbala v Poland (2001) EHRR 48	Similar to Nikolova on damages for non-pecuniary loss	Followed similar reasoning on just satisfaction
Fox, Campbell and Hartley v UK (1990) 13 EHRR 157	Refusal to award damages for non-pecuniary loss despite unlawful detention	Established that damages may not be awarded despite breach
Migon v Poland (2002)	Damages for non-pecuniary damage in Article 5.4 breach cases	Confirmed refusal to award damages absent proof of unlawful detention
Delbec v France; LR v France; DM v France; Laidin v France (2002)	Damages awarded for frustration and distress in Article 5.4 mental health cases	Contrasted with Nikolova line; indicated inconsistency in ECtHR jurisprudence
Waite v UK (2002); Mitchell and Holloway v UK (2002); Kubiszyn v Poland (2003)	Damages awarded for distress and frustration caused by breaches of Article 5 or 6	Supported awards for distress in procedural breaches
Osman v UK (1998) 29 EHRR 245	Damages awarded on equitable basis for loss of procedural opportunity	Applied to loss of opportunity claims but without detailed calculation
Curley v UK (2000) 31 EHRR 14	Damages assessment by ECtHR; domestic scales inapplicable absent unlawful detention	Supported applying a European measure distinct from domestic tort scales
R v Governor of Brockhill Prison, ex parte Evans (No. 2) [1999] QB 1043	Damages for false imprisonment; principles for assessing damages including distress	Used as guidance for assessing damages for unlawful detention periods
Alexander v Home Office [1988] 1 WLR 968	Damages for injury to feelings in discrimination cases	Supported restrained but adequate awards for non-pecuniary injury

Court's Reasoning and Analysis

The court examined the relevant provisions of the Human Rights Act 1998 and the European Convention on Human Rights, particularly Articles 5.4 and 5.5, which guarantee the right to a speedy review of detention and an enforceable right to compensation for breaches. It acknowledged that the European Court of Human Rights (ECtHR) jurisprudence on damages awards is inconsistent, with some cases awarding damages for distress caused by delays and others considering a declaration of breach sufficient just satisfaction.

The court emphasized that awards of damages under the HRA are discretionary and must be "necessary" to afford just satisfaction, reflecting the principles applied by the ECtHR but also adapted to domestic legal culture. It rejected the Claimants' submission that damages are compulsory upon any breach of Article 5.4, holding that damages depend on proof of injury or damage, whether pecuniary or non-pecuniary.

The court rejected claims for exemplary damages, citing section 9(3) of the HRA which prohibits such awards, and found no factual basis for exemplary damages in the present cases.

Regarding damages for loss of opportunity or loss of chance, the court held that damages cannot be awarded merely for the loss of a chance of a favorable tribunal decision. Claimants must prove on the balance of probabilities that an earlier hearing would have resulted in discharge. The court noted the difficulty of such proof given the deference owed to Responsible Medical Officers (RMOs) whose opinions carry significant weight.

The court held that the period for damages corresponds to the unlawful delay between when a hearing should have taken place and when it actually did, rejecting broader periods advocated by some parties. It cautioned that cancellations or postponements of hearings are not per se breaches of Article 5.4, provided the eventual hearing is speedy.

The court recognized the vulnerability of detained mental health patients and allowed that distress and frustration in such patients may justify damages where the distress is significant and documented contemporaneously in medical records.

In assessing individual claims, the court carefully considered medical evidence, tribunal records, and witness statements. It found that some Claimants suffered distress and frustration sufficient to warrant modest damages awards, while others did not present sufficient evidence of injury or distress to justify damages beyond the declaration of breach.

The court rejected the notion that damages under the HRA should be lower than comparable tort damages, endorsing the approach that awards should reflect the English level of damages for similar wrongs, such as false imprisonment.

Holding and Implications

The court GRANTED damages awards to certain Claimants in modest sums reflecting the extent of delay, distress, and injury proven, while in other cases held that a declaration of breach sufficed as just satisfaction and no damages were awarded.

The court held that damages are not automatically awarded for breaches of Article 5.4; proof of compensable injury or distress is required. Exemplary damages are prohibited under the HRA. Damages for loss of chance require proof on the balance of probabilities. The measure of damages should reflect domestic legal standards, informed but not constrained by European Court jurisprudence.

The decision directly affects the parties by resolving their claims for damages resulting from delayed tribunal hearings. It does not establish new precedent beyond clarifying the principles applicable to damages awards under the HRA for breaches of Article 5.4 in mental health detention cases.