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

The Claimants are or were patients detained under powers conferred by the Mental Health Act 1983 (“the MHA”). They made applications to the Mental Health Review Tribunal for the review of their respective detentions. There were delays in the hearings of their applications. In R on the application of KB and ors v Mental Health Review Tribunal [2002] EWHC 639 (Admin) (“the first judgment”), I held that their rights under Article 5.4 of the European Convention on Human Rights to speedy hearings of their applications had been infringed. I ordered that the issues between the Claimants and the Defendant as to whether the Claimants were entitled to awards of damages, and if so their amounts, should be determined at a later hearing.

In R on the application of B v Mental Health Review Tribunal [2002] EWHC 1553 (Admin), Scott Baker J, as he then was, held that the tribunal had failed to hear B’s application speedily. He directed that the issues as to damages to which B might be entitled should be heard subsequently. B’s damages claim was heard by me together with the claims of KB and others.

The damages claims of all of the Claimants were heard by me between 2 and 5 December 2002. They raise issues of principle concerning awards of damages under the Human Rights Act 1998 (“the HRA”). As far as I am aware, this is only the second judgment on such issues: the other is that of Sullivan J in R (Bernard) v London Borough of Enfield [2002] EWHC 2282 (Admin), the facts of which differ in important respects from the present cases. A number of other cases await the determination of the claims in the present cases.

I consider the facts of each Claimant’s case below. At this point it is sufficient to note that none of them makes a claim for pecuniary loss. The only claims of PD, KB and TB are for the frustration and distress they allege they suffered by reason of the delay to the hearings of their applications. LB, GM, JR and MK claim, in addition, that the breaches of Article 5.4 resulted in deprivation of their liberty and/or damage to their mental health. B’s claim relates to his feelings of frustration and distress only, but Mr Bowen submitted on his behalf that an award of exemplary damages could and should be made.

It was also submitted that even if a claimant could not establish that on a balance of probabilities he would have been discharged if there had been an earlier hearing of his application, damages could and should be awarded for his or her loss of the chance to be so discharged. If such damages may be awarded, the court would have to assess the percentage prospects of a tribunal having directed the discharge of a claimant at an earlier hearing and award as damages that percentage of the damages that would be awarded if it were established that there would have been a discharge from detention: c.f. Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602. Given that substantial damages should be awarded for loss of liberty, this approach could lead to relatively large awards of damages to those whose prospects of release were always low.

This is my judgment on the damages issues.

Section 1 defines “Convention rights” as the rights and fundamental freedoms set out in, among others, Article 5 of the European Convention on Human Rights. Section 2 requires the court “determining a question which has arisen under this Act in connection with a Convention right” to “take into account” any judgment, decision, declaration or advisory opinion of the European Court of Human Rights and the other authorities listed in subsection (1).

Section 6 renders it unlawful for a public authority to act in a way that is incompatible with a Convention right. This court, as well as the Mental Health Review Tribunals, are public authorities within the meaning of the Act.

Section 7 confines claims against public authorities for acts alleged to be incompatible with their Convention rights to the victims of the unlawful acts concerned. It is not disputed that the Claimants are victims within the meaning of section 7.

Section 8, headed “Judicial remedies”, is as follows:

Section 9(3) provides:

The relevant provisions of Article 5 are as follows:

It was not suggested that Article 5.5 is limited to cases where there has been wrongful arrest or wrongful detention, in other words to cases where the victim has been unlawfully deprived of his liberty. It was common ground that it applies to a claim for breach of Article 5.4 even though the delay in obtaining a decision of a court did not prolong the victim’s detention.

Some of the authorities to which I was referred concerned the analogous rights under Article 6.1 of a defendant in criminal proceedings and of the parties to civil proceedings to “a fair and public hearing within a reasonable time”.

Article 13 provides:

Article 41 of the Convention (previously numbered 50) provides:

The principal issues of principle raised on behalf of the parties were the following:

To what extent must the High Court follow the rules applied by the European Court of Human Rights in awarding damages?

Given there has been a breach of the Claimants’ rights under Article 5, are awards of damages obligatory in order to give them “just satisfaction” within the meaning of section 8 or by reason of section 9(3) and Article 5.5?

Are feelings of frustration and distress occasioned by delay in tribunal hearings recognised by the European Court as justifying awards of damages?

Is there power to award exemplary damages in an appropriate case?

Should the measure of damages be a European measure or should an English and Welsh domestic measure should be applied?

If a domestic measure of damages is applicable, should awards be modest and lower than in comparable English tort cases (to the extent to which sensible comparisons are available).

What is the relevant period in respect of which damages are to be awarded?

Where there is a real possibility that a hearing within the time required by Article 5.4 would have resulted in a discharge of a Claimant from detention, and damages are claimed for loss of liberty, are damages to be assessed on the basis of loss of a chance, or must the Claimant establish on a balance of probabilities that he would have been discharged?

Apart from any considered under the above heads, are there any special principles applicable to mental health cases?

I had before me a spectrum of submissions. In general, Mr Bowen’s were at one end, and Mr Sales’ and Miss Laing’s at the other; Mr Gledhill’s and Mr Mullins’ tended to be between these extremes. Mr Bowen submitted:

An award of damages is compulsory: a declaration that a claimant has been the victim of a violation of his rights under Article 5.4 can never be an adequate remedy.

The award of damages should be substantial.

Exemplary damages may be awarded, and should be in the case of B.

The period in respect of which damages should be awarded is (in order of preference) the period between the detention of the claimant and the date of the tribunal’s decision, or the period between the making of the application to the tribunal and its decision, or from the date required by rule 31 (relating to patients detained under section 2) or by rule 29(cc) of the Mental Health Review Tribunal Rules (in the case of a restricted patient who has been recalled following a conditional discharge) or the period from the date 8 weeks after the making of the application to the date of the tribunal’s decision.

Mr Gledhill and Mr Mullins allied themselves with Mr Bowen’s submissions with varying degrees of enthusiasm. Their primary submissions were less extreme, and I shall mention them in their context where necessary. Mr Sales disputed each of Mr Bowen’s submissions. As to the period to which an award of damages should relate, Mr Sales submitted that it was the period between the date when a hearing complying with Article 5.4 should have taken place and the date of the actual hearing. This too was Mr Gledhill’s and Mr Mullins’ primary submission.

Before addressing these issues, it is convenient to set out the principles for the award of damages under the HRA suggested by Lord Woolf LCJ in his contribution to Liber Amicorum Slynn, published in 2000, before the coming into force of the Act, on which I shall have to comment:

No one submitted that the decisions of the European Court are binding on an English court. Sections 2 and 9 require them, or the principles applied by the Court, to be “taken into account”. Lord Slynn of Hadley said in Alconbury [2001] UKHL 23, [2001] 2 WLR 1389, at paragraph 26 of his speech:

There is a subtle and possibly significant difference between the wording of section 2(1) and that of section 8(4). The former requires the Court to take into account any judgment, decision etc. of the European Court; the latter requires the court to take into account “the principles applied” by the European Court. The significance of this difference is not obvious, and counsel for the Claimants understandably made no submission on it. The only possible significance I can see is that Parliament may have wanted the UK court to have somewhat greater freedom in relation to decisions of the European Court on the amount of damages awarded in particular cases, quantum normally being a matter for the forum. This view is consistent with that expressed by the Law Commission in paragraph 4.11 of its Report on Damages under the HRA (Cm 4853) of October 2000:

There is, however, a real difficulty that must be mentioned at this point. It is common ground that in considering the award of damages the European Court applies the principle of restitutio in integrum, a principle also generally applied by common law courts. In Kingsley v UK (2002) 35 EHRR 10 the Court expressed the principle as follows:

The European Court places the burden on the applicant to prove his damage, unless it finds that damage was a necessary consequence of the breach. If damages are awarded, they will take account of any conduct of the applicant that contributed to his damage or injury (as in Johnson v UK (1999) 27 EHRR 440 and DG v Ireland (2002) 35 EHRR 33). In such cases, the injury or damage or its aggravation resulting from the applicant’s own conduct is not regarded as a consequence of the respondent state’s infringement of his Convention right. Beyond these basic principles, however, with some exceptions it is impossible to identify a relevant set of principles consistently applied by the European Court when considering awards of damages:

The Court tends to award global sums on an “equitable” basis, and its judgments do not analyse the basis of calculation (often not identifying the period of delay which is the basis of the claim) or give a breakdown between different items of damages. They may even not distinguish between damages and the costs and the expenses of the proceedings (as in Van der Leer, referred to below). These characteristics render it difficult to identify more than very general principles. It may be understandable that a court of so many members from different legal backgrounds should express its conclusions on damages in such general terms. Our own jurisprudence and legal culture require a more analytical approach.

Parliament provided, in section 8(3) of the HRA, that awards of damages should not be made in every case in which there has been a breach of a Convention right, but only where the court is satisfied that such an award is “necessary”. It thus envisaged that there would be cases of breach where an award of damages would not be necessary. However, the Claimants submitted that special considerations apply to breach of Article 5. Their counsel submitted that Article 5.5 creates an enforceable right to compensation that the High Court, as a public authority, must enforce. Accordingly, even if a patient suffers no discernible injury or damage or distress as a result of a breach of Article 5.4, an award of damages must be made. They distinguished the obligation of the State under Article 5.5 with that of the European Court under Article 41, which arises only in the event of a failure by the national authorities to meet their obligations under the Convention. As many of its judgments recognise, when considering the exercise of its powers under Article 41, the European Court may conclude that a declaration of the infringement of a Convention right is sufficient to afford just satisfaction, so that it is not “necessary” to award damages in addition. It was submitted that such an option is not open to a national court.

Mr Sales submitted that Article 5.5 requires that there should be an enforceable right to compensation, but not that compensation should necessarily be awarded. There may be a right to compensation even if a particular claimant whose rights have been infringed has suffered no or no sufficient loss and therefore does not satisfy the requirements for its award. Article 5.5, he submitted, must be read consistently with Article 41: it would be anomalous if the rights conferred by Article 41 should be less than those created by Convention articles that are directly enforceable within member states.

Apart from authority, I should unhesitatingly accept Mr Sales’ submission. The Convention must be read and interpreted as a whole. The purpose of Article 41 is to enable the European Court to give reparation where no, or only partial, reparation is available from the national authority. In effect, Article 41 enables the Court to act as guarantor of the compliance by national authorities with their Convention obligation to make full reparation where that is necessary to give just satisfaction to a victim of an infringement of a Convention right. It follows that where the national court is able to award full reparation one would expect the power of the European Court under Article 41 to be co-extensive with the power and duty of the national court. It would be anomalous if the national court were required by the Convention to award damages in cases in which the European Court, under Article 41, is not. Since it is accepted that in exercising its powers under Article 41 the European Court may decline to award damages, on the basis that a finding that there has been an infringement of a Convention right is sufficient and just satisfaction, national courts must have the same power. Since the European Court has so declined in cases in which it has found infringements of Article 5, it must follow that Article 5.5 does not compel the award of damages in every case. Put more shortly, if Article 5.5 required an award of damages for any substantive breach of the preceding provisions of Article 5, the European Court could not have concluded in such cases that anything less than an award of damages could constitute “just satisfaction”.

Mr Bowen submitted that there is a contrast between the discretionary power of the Court under Article 41 with the mandatory requirement of Article 5.5. This submission involves a misreading of Article 41. In my judgment, Article 41 requires the European Court to award reparation if the internal law in question does not provide for full reparation, if the claimant has suffered damage beyond that which can be fully compensated under that internal law. If he has suffered no such damage, it will not be “necessary” to award damages under Article 41 in order to afford just satisfaction.

Furthermore, this is clearly how Parliament construed the Convention when it enacted the HRA. In referring in section 8(3) to “just satisfaction”, it impliedly referred to Article 41, and it expressly referred to it in section 8(4). It follows from section 8(3) that there may be findings of infringement of Convention rights without a consequential award of damages. The reference in section 8(4) to “the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention” would be inexplicable if those principles were inapplicable to awards of damages by the High Court. It is not easy to see that the High Court can take those principles into account, as required by the Act, if it treats them as inapplicable to its decisions.

Mr Bowen submitted that if damages under Article 5.5 and under Article 41 are in principle identical, it was unnecessary for Parliament to incorporate Article 5.5. I do not accept this submission, particularly given the specific reference to Article 5.5 in section 9, which rendered the incorporation of the former inevitable.

The jurisprudence of the European Court and of the Commission is consistent with this approach. The statement of the basic principles in Wassink v The Netherlands [1990] ECHR 1253/86 is helpful:

On this basis, the award of damages under Article 5.5 depends on there being proof of damage. Damage may be pecuniary or non-pecuniary. In respect of the latter, there are, as Counsel for the Claimants candidly pointed out, two lines of European authority. In some cases, feelings of distress and frustration have been considered insufficient to amount to compensatable damage; in others such feelings have been treated as requiring an award of damages, even where they have not been specifically proved. Of the former, the clearest example is the judgment of the majority of the Court in Nikolova v Bulgaria [2001] EHRR 3:

The Court used the same formula in Niedbała v Poland (2001) EHRR 48, at paragraph 88 of its judgment. Both Nikolova and Niedbała are relatively recent authorities. In the earlier case of Fox, Campbell and Hartley v UK (1990) 13 EHRR 157 (merits), (1991) 14 EHRR 108 (Article 50) the Court refused to award damages for non-pecuniary loss although the applicants had been detained in contravention of Article 5.1: i.e., they were refused damages for the deprivation of their liberty, even though:

The Nikolova formula was most recently used by the Court in Migon v Poland (App. no. 24244/94), in which judgment was given on 25 June 2002 by a panel of whom the chairman was Sir Nicholas Bratza. The Court held that there had been a breach of Article 5. On the issue of damages, it stated:

I read this as holding that damages for distress cannot be recovered in the absence of a finding of unlawful detention: a proposition which goes beyond the submissions of the Secretary of State before me. These cases justify the Law Commission’s statement, at paragraph 3.41 of their Report:

In other recent decisions the Court has awarded damages where the only claim relates to frustration and distress: see Delbec v France (18 June 2002, App no. 43125/98), LR v France (27 June 2002, App no 33395/96), DM v France (27 June 2002, 00041376/98) and Laidin v France (5 November 2002, 43191/98) (all Article 5.4 mental health cases); and c.f. the very recent judgments in Waite v UK (53236/99, 10 December 2002), in the Article 6 case Mitchell and Holloway v UK (44808/98, 17 December 2002) and most recently Kubiszyn v Poland (App. No. 37437/97, judgment 30 January 2003) (EUR 3750 awarded for distress and frustration caused by breach of Article 6.1 where divorce and custody proceedings, including appeals, began in June 1994 and ended in January 2001, which included over 3 years of inactivity attributable to the state). Parenthetically, it is not obvious what “feelings of frustration, uncertainty and anxiety” were suffered by the applicant in Waite as a result of the breach of Article 5.4, since the only breach found concerned the procedure adopted by the Parole Board. I do not think that this line of authority can be reconciled with the cases in which Nikolova has been followed. My impression is that the Delbec line of cases exceeds in number the Nikolova line of authority.

Mr Sales placed particular reliance on the judgment of the full chamber of the European Court of Human Rights in Kingsley v UK, referred to above. The applicant claimed that a decision of the Gaming Board to revoke certificates of consent to his operation of gaming casinos had been made in breach of his rights under Article 6.1 on the ground that the Board was not an independent and impartial tribunal. The Court upheld his claim that his Article 6 rights had been violated, in that the Board did not have the necessary appearance of impartiality. There was no evidence that the substantive decision of the Board had been incorrect. The UK Government pointed out that the applicant had not adduced any independent evidence to suggest that the stress he suffered as a result of the proceedings before the Board (and presumably the ensuing judicial review proceedings) was unusual or was specifically caused by the breach of Article 6.1 rather than by the revocation of his certificate. The Court concluded:

It is apparent that the Court may infer that there was sufficient non-pecuniary damage without medical evidence. For example, in Van der Leer v Netherlands [1990] 12 EHRR 567, the Court awarded damages because:

The objections to the “finding of breach is just satisfaction” principle are cogent. In Engel and others v The Netherlands (no. 2) 1 EHRR 524, paragraph 46, Judges Ganshof, Van Der Meersch and Evrigenis said:

I conclude that there is no “clear and constant jurisprudence” of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of a deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of a deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply.

As stated above, Parliament has in effect enacted in section 8(3) that in some circumstances an award of damages is unnecessary, and I therefore consider that I should accept that principle, particularly since it was accepted by Sullivan J in Bernard: see paragraph 39 of the judgment. So far as damages for distress are concerned, in my judgment the basic principle is that set out in paragraph 73 below.

The European Court purports to apply a European measure of damages to cases coming before it, rather than the measure of damages that would be applied by the national court. In Osman v UK (1998) 29 EHRR 245, the Court stated:

In Curley v UK (2000) 31 EHRR 14, which is similarly relied upon by the Secretary of State, the applicant, a convicted murderer serving a life sentence whose tariff had expired, complained that he had not been able to take proceedings to decide the lawfulness of his continued detention as required by Article 5.4, because the decision as to his continued detention was made by the Home Secretary. He made no complaint that his detention had been contrary to Article 5.1. The Court dealt with the claim for damages as follows:

On the other hand, governments of states with low costs (and standards) of living ask the court to take that into account when assessing damages. Scorey and Eicke state, at paragraph A4-053:

The award of £1,500 in Curley for 10 years of “frustration, uncertainty and anxiety” is modest in the extreme. I do not think that the judgment in that case bears the interpretation placed on it by the Secretary of State for Health: indeed, on one view it is unhelpful to him. The Court was saying no more than that where there has been no finding by the domestic court of unlawful detention, the domestic scale of damages for unlawful detention is inapplicable. One might read the judgment as suggesting that if there had been such a finding, the domestic scale of damages might have been applicable. Osman is more helpful to the Secretary of State for Health, but apart from the fact that the point was not argued, I do not read the judgment of the European Court as suggesting that a national court should necessarily apply the same scales of assessment as it does.

While I do not find the answer to this issue entirely easy, it seems to me that the overriding object of an award of damages is to compensate the claimant for his injury. Compensation that might be adequate in one country, with a low cost of living, might well be inadequate in the UK; conversely, it is possible that compensation that would be no more than adequate in another country might be excessive in UK social and economic conditions. It is understandable that the European Court should apply a constant scale of damages to all cases that come before it. The English court should take account of the scale of damages awarded by the European Court, but should be free to depart from it in order to award adequate, but not excessive, compensation in UK terms.

Counsel for the Claimants accepted that awards of damages should be “modest”, but they took issue with Lord Woolf’s fourth principle, to the extent that he opined that normally damages under the HRA should be on the low side by comparison to tortious awards. Rather, they submitted that awards “should not be out of proportion to the general level of damages awarded by domestic courts for other wrongs”. They suggested that awards should be sufficiently high to reflect “the fundamental nature of the right under Article 5.4 breached and demonstrate the seriousness with which the Court views breaches of this right”, and should “Take into account the wider circumstances of the breach including their systemic and long term nature”. It was submitted that the State should not be able to calculate that it would be cheaper to pay damages than to prevent the breach of Convention rights – a submission which echoed that of the UK Government in Kingsley.

The Secretary of State agreed that if awards of damages were appropriate, they should be modest. Otherwise, not surprisingly, the submissions on his behalf were to the contrary effect. Mr Sales submitted that the court should bear in mind that there are competing interests pursuing limited resources: the interests of individual Claimants in receiving damages and the interest of the wider community in ensuring that public money is spent on improving services. In response, counsel for the Claimants pointed out that there was no evidence that a reduction in damages would increase expenditure on services.

I do not think that either of these rival approaches is correct. The object of an award of damages under Article 5.5 is to provide compensation for injury: no more, no less. Parliament requires the court to make an award of damages under Article 5.5 where that is required by the Convention. It must be taken to have provided the resources to meet such awards. Conversely, it is in general not the function of an award of damages to mark the court’s disapproval of the conduct complained of, or to compel future compliance with the Convention, or to reflect the importance of the right infringed. It is true that one can see in certain decisions of the European Court a tendency to award greater damages where it disapproves of the conduct of the state in question, or where there have been repeated infringements of Convention rights: see paragraph 4.44 of the Law Commission report. However, this tendency is not expressly reflected in any principle applied by the Court. In any event it may be that it can be accommodated by the latitude (or “margin of discretion”) available to the court in awarding damages for non-pecuniary loss, or even, in an exceptional case of deliberate or persistent infringement, by an award of aggravated damages, which in principle are compensatory rather than penal: see Thompson v. Commissioner of Police of the Metropolis (C.A.) [1998] QB 498, 516.

This approach is consistent with that of May LJ in Alexander v Home Office [1988] 1 WLR 968, 975, dealing with damages for unlawful racial discrimination, referred to by Sullivan J in Bernard at paragraph 57:

In Bernard, Sullivan J sought guidance from English authorities on damages in analogous cases. In other words, he did not adopt Lord Woolf’s suggestion that damages under the HRA should be lower than tort damages. The Law Commission too were unhappy about this aspect of Lord Woolf’s fourth principle: see paragraph 4.61 of their report, cited by Sullivan J in Bernard at paragraph 44, on the basis that it involved a departure from the principle of full reparation for damage suffered.

On this issue, I respectfully agree with the approach of the Law Commission and Sullivan J. I see no justification for an award of damages being lower under the HRA than it would be for a comparable tort. For example, the tort of false imprisonment, if committed by a public authority, will normally, if not invariably, coincide with infringement of Article 5.1. I see no reason why there should be any difference between the measure of damages for the wrongful detention of an individual under the two causes of action: in both cases, the object of the award is to compensate the individual for the same wrongful detention. (Whether the heads of recoverable consequential damage under the two heads are identical [for example, whether damages for injury to reputation are recoverable] is a different question, which I need not consider.)

In the present cases, there is no comparable tort or other wrong under purely English law. Nonetheless, in my judgment damages awarded should so far as possible reflect the English level of damages. The decision in Bernard is instructive. The defendants’ breach of the claimants’ Article 8 rights involved the claimants living in deplorable conditions for a period of about 20 months. The total sum awarded was £10,000, divided between the claimants as £8,000 for the severely disabled wife and £2,000 for her carer husband. The injury so compensated was far greater than those suffered by any of the Claimants in the present case. There was no criticism of the decision in Bernard before me, and I shall therefore seek to determine awards of damages that are compatible with the decision in that case.

In addition, in the cases in which the unnecessary prolongation of detention is an issue, I derived considerable assistance from the decision of the Court of Appeal on damages in R v Governor of Brockhill Prison, ex parte Evans (No. 2) [1999] QB 1043, to which Mr Gledhill and Mr Mullins helpfully drew my attention. That case concerned the wholly innocent but unlawful detention of the claimant as a result of the miscalculation of the date for his release from his prison sentence. The period of wrongful imprisonment was 59 days. The trial judge had awarded damages of £2,000. The Court of Appeal increased this to £5,000. Lord Woolf said, at 1059-60, in a passage with which the other members of the Court were in agreement:

The judgment of the Court of Appeal in Evans emphasises the need to determine the precise consequences of any false imprisonment. As well as involving consideration of any distress caused, it is necessary to compare the conditions in which the claimant was detained with what his or her circumstances would have been if he or she had not been so detained.

I cannot reconcile the decision on the amount of damages in Evans with two of the European authorities to which I was referred, Johnson v UK (1999) 27 EHRR 296 and Perks v UK (1999) 30 EHRR 33, or those two European authorities with each other. In Johnson, the Court awarded damages for non-pecuniary loss of £10,000 to an applicant who had been wrongly detained in a maximum security psychiatric hospital for some 3½ years. Although not all the delay in his release could be attributed to the state (see paragraph 77 of the judgment of the Court), the damages figure appears very low. On the other hand, in Perks the applicant was awarded £5,500 for non-pecuniary loss where his imprisonment for 6 days was accepted to be the result of a breach of Article 6.

Mr Bowen was alone in seeking an award of exemplary damages.

Exemplary damages are by definition not compensatory. Their award would be additional to any damages awarded to afford full restitution for any damage or injury suffered by the victim of a breach of a Convention right.

Section 9(3), by prohibiting any award of damages otherwise than by way of compensation, expressly prohibits the award of exemplary damages. It is therefore unnecessary to burden this judgment with a discussion of the jurisprudence of the European Court on this subject. In fact, it refuses to award such damages: see the cases cited in the Law Commission report at paragraph 3.47.

Furthermore, the facts of none of the present cases could justify an award of exemplary damages on common law principles. Mr Bowen suggested that an award of exemplary damages was necessary to deter the chairmen of tribunals from failing to fulfil their duties. There is no evidence to support that suggestion: nothing to begin to suggest that the threat of exemplary damages is required in order to compel them to fulfil their duties conscientiously. Such an award is not only unnecessary: it might justifiably be regarded by tribunal members and regional chairmen as excessive and offensive.

The jurisprudence of the European Court is replete with refusals to award damages for loss of a chance to obtain a favourable court or tribunal decision. The Court refuses to speculate on the prospects of success: see, e.g., the extract from the judgment in Migon v Poland set out above. The judgment of the Court in Findlay v UK (1997) 24 EHRR 221 is a striking example of such a refusal. On the other hand, in a case in which the government conceded that one of the applicants would have had a favourable decision if his Convention right had been respected, it awarded him alone damages: Perks v UK (2000) 30 EHRR 10. The Court refused to speculate as to the chances of the other applicants considered in that judgment not having been imprisoned if their Article 6 rights had been respected: see paragraphs 80 and 82 of its judgment. Perks was followed in Ezeh and Connors v UK [2002] 35 EHRR 28 in which the Court stated that it:

In Osman, the sum of £10,000 was awarded “on an equitable basis” to each of the applicants who had been deprived of the opportunity to obtain a ruling on the merits of their claims for damages claims against the police for negligence in failing to prevent the commission of the manslaughter of the father of their family. As usual, the judgment contains no indication of the calculation of this sum, which may simply have been regarded as the value of the access to the courts of which the applicants had been deprived. That was a case in which access to the national court was precluded because of the non-liability of the police under English law, and not merely delayed. It is difficult to see that the sum awarded represented the value of the cause of action of which the claimants were held to have been deprived. Rather it would seem to represent damages for the loss of an opportunity to present a meritorious case. In this respect, the decision is similar to that in Goddi v Italy (App. no. 8966/80, 1984): see paragraph 35 of the judgment in that case: the Court rejected the contention that the applicant would have received a lesser sentence if his Convention rights had been respected, but nonetheless awarded damages for “a loss of real opportunities”. Goddi and Perks were distinguished in Ezeh and Connors, in which the Court reiterated that its normal approach is that a finding of violation constitutes sufficient just satisfaction for loss of opportunity.

I conclude that it would be contrary to the principles applied by the European Court to award damages for loss of a chance of a favourable tribunal decision or for loss of opportunity as such. On the other hand, a claimant must be able to establish a meritorious case that he would have had an earlier favourable decision by evidence. The award of damages in such cases cannot rationally or fairly be restricted to those cases (such as Perks) where the state concedes the relevant facts. It follows, in my judgment, that a claimant who seeks damages on the basis of an allegation that he would have had a favourable decision at an earlier date if his Convention right had been respected must prove his allegation on the balance of probabilities. The court will, however, bear in mind that in practice a relatively low proportion of applications to tribunals succeed, and that a finding that a tribunal would have directed the discharge of a patient involves a finding that the RMO (and often other medical staff and the ASW) were wrong in their opinion that he or she should not be discharged. Convincing evidence is required to justify such findings.

The period to which any award of damages relates is that between the time when the tribunal should have determined a patient’s application and the date when it is actually determined: i.e. the period of unlawful delay. This follows from the general principle that damages are restitutionary. I reject Mr Bowen’s submissions to the contrary. It is true, as counsel for the Claimants point out, that it may be difficult to identify the precise date when the patient’s application should have been heard. However, this cannot justify a radical departure from the normal basis of the assessment and purpose of damages. Furthermore, damages are not calculated by an arithmetic calculation of a rate per day to the period of delay. The assessment of the period of delay is bound to be somewhat impressionistic.

A further point needs to be made in the present connection. There was an understandable tendency in submissions to equate a cancellation or postponement of a tribunal hearing with a breach of Article 5.4, and to treat feelings of disappointment or distress or frustration caused by a cancellation as resulting from such a breach. However, Article 5.4 does not prohibit the cancellation or postponement of hearings as such. There may be a cancellation or postponement without any breach of Article 5.4, provided the eventual decision is “speedy”. Furthermore, if the postponement takes place at a time when there could still be a “speedy decision” on the patient’s application, what is unlawful is not the postponement as such, but its duration. On the other hand, in some cases an unjustified cancellation of a hearing is the cause of the infringement of the applicant’s rights under Article 5.4.

Mr Sales submitted that where the Court finds that the cancelled tribunal hearing would not have resulted in the discharge of the patient, the disappointment and distress caused by the cancellation have to be considered against the possibility that the negative (from the point of view of the patient) tribunal decision would in any event have caused disappointment and distress, and possibly a feeling of frustration at his or her inability to leave the hospital. But it must be borne in mind that a cancelled tribunal hearing followed by a later effective hearing and refusal by the tribunal to direct the discharge of the patient involves two instances of disappointment and, possibly, distress, rather than one.

For these reasons, some care is required when considering whether the cancellation or postponement of a hearing gives rise to an entitlement to damages.

A further complication concerns the issue whether an earlier hearing would have resulted in discharge: what date is to be taken as the date of the hypothetical hearing? To take a date fixed by the tribunal for a hearing that in the result was cancelled may conceivably be to take a date that is earlier than that required by Article 5.4. On the other hand, where there has been delay in arranging an effective tribunal hearing, it cannot be right to treat every date during the period of delay as the date of a hypothetical hearing, and to ask at every date whether, if a hearing had taken place at that date, the patient would have been released, and if at any date the answer to that question is affirmative, to award damages for, in effect, wrongful detention. The issue may be complicated by the fluctuation in the mental health and presentation of the patient during the period in question. One must also bear in mind that if a tribunal hearing takes place at an early date, and the patient is not discharged, he cannot then apply for a further hearing for a period of 6 months. If, therefore, the Court confines its examination to the first date when an effective hearing should have taken place, it may conclude that the claimant would not then have been discharged, although he or she improved subsequently and would have been discharged by a tribunal hearing at a later date. Mr Sales and Miss Laing submitted that in such circumstances the failure to secure a hearing after the first date cannot be considered to have caused delay to the discharge of the patient. I do not accept this submission: the breach of Article 5.4 is a continuing breach, and its continuation cannot be ignored in the assessment of damages. The complexities are such that, again, an impressionistic approach to the assessment of damages is likely to be necessary in most cases.

The jurisprudence of the European Court of Human Rights does not suggest that any special legal principles apply to mental health cases as distinguished from other cases in which the lawfulness of detention falls to be determined under Article 5. There are however special factual considerations which must be taken into account, the principal of which is the generally vulnerable condition and circumstances of mental patients who are compulsorily detained.

I do not think that every disappointment and all feelings of distress constitute compensatable damage for present purposes. In Silver v UK (1983) 6 EHRR 62, a case on unlawful interference with correspondence by prison authorities, the Court stated:

On the other hand, in the present cases, full account must be taken of the fact that the Claimants were patients, detained on account of the state of their mental health, and thus in a vulnerable mental condition. Damages may be awarded to such persons under Article 5.5 although in analogous circumstances no award would be made to a healthy person, because they may suffer compensatable injury in circumstances where those of more robust health would not.

Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: “of such intensity that it would in itself justify an award of compensation for non-pecuniary damage”. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.

I do not think that the cases on unlawful racial or sexual discrimination afford a reliable analogy for the award of damages in cases such as the present. Such discrimination is often intended to be insulting and hurtful; even where it is unintended, it is likely to hurtful, and it is likely to be perceived and felt to be insulting, hurtful and distressing by the victim. A principal object of the statutory torts is protection from distress. In contrast, in the present cases it cannot be and is not suggested that there was any intention on anyone’s part to cause distress.

The evidence before me consisted of:

relevant hospital records;

medical reports prepared for the hospital or for tribunal hearings;

witness statements of the Claimants;

written expert psychiatric reports prepared for the purposes of the claims for damages; and

in some cases, the testimony of the expert psychiatrists.

There is a further point to be made in this connection. The expert witnesses acknowledged that the Claimants’ RMO’s were likely to be in a better position than them to determine whether a particular Claimant should have been discharged at any particular time, simply because of the RMO’s greater knowledge and experience of the patient and access to other members of the hospital staff. Indeed, in some cases the expert psychiatrist had not met the Claimant, and was basing his opinion on contemporaneous documents and reports. This is not to say that the RMO is always right: if he were, the tribunal would have no role to play. But the court, like the tribunal, must give due weight to the RMO’s knowledge and experience, and should be cautious before preferring the opinion of an expert to that of the RMO. The decision as to whether an RMO should give evidence is primarily the parties’. One would expect the tribunal to wish to adduce his evidence, and it must bear the consequences if it chooses not to call him. But just as the RMO is normally a witness in proceedings before a tribunal, so in my view he should be in judicial review proceedings in which it is alleged that he or she should have discharged a patient but did not do so.

The likelihood of persons such as the Claimants suffering anxiety and distress as a result of the cancellations of and delays to the hearings of their applications was acknowledged in the evidence before me in the hearing that led to the first judgment:

At paragraph 21 of her statement, Margaret Burn (senior official at the Department of Health) stated that they accepted that cases had not been heard as quickly as patients wished and “We regret the distress and inconvenience that those patients have suffered.”

At paragraph 10 of his statement, Michael Christie (MHRT London North and East Regional Chair) stated “The frequency with which the Tribunal hearings are cancelled at the last moment in my region is a matter of great concern to me. I regret the obvious distress this causes to patients.”

In a letter to Mr Christie, Dr Peter Carter, the Chief Executive of the Brent, Kensington & Chelsea and Westminster Trust wrote of patients whose Tribunals were cancelled: “It is having an adverse effect upon the care provided by this Trust, as well as the confidence of the Trust’s clients in the appeals process.”

In a letter to the Gordon Hospital, Mr Christie wrote: “Of course, it is the patients who suffer most and become distressed when there are cancellations. This is regrettable, particularly when they have an entitlement to a hearing of their application.”

In a letter to a patient’s solicitor, Dr Needham-Bennett, Consultant Forensic Psychiatrist of the South London and Maudsley Trust, wrote of late cancellations of Tribunals, “Whilst this can be wasteful of professionals’ time, it does have a marked detrimental effect on the patient’s state of mind. Clearly a tribunal can be a highly stressful process for the patients and much of the anxiety they experience is in anticipation of the tribunal. For it to be cancelled at the last moment leaves them feeling upset, cheated and resentful.”

Nonetheless, in an environment in which notes are made of significant matters concerning a patient’s mental condition, I think that the court should pay particular attention to contemporaneous medical records and reports and to their mention, or omission of mention, of distress or other effects of delay in tribunal hearings.

The facts relating to PD were summarised by me in the first judgment as follows:

I think it right to equate the requirement of rule 31 of the Mental Health Review Tribunal Rules in relation to patients detained under section 2 of a hearing within 7 days of receipt of their application with that of Article 5.4 that there should be a speedy decision of their application. On this basis, the period after which PD’s application should have been heard until his discharge was about 3 weeks. Because of his discharge by his RMO, his application was never heard.

PD’s judicial review proceedings were commenced on 13 November 2001, 3 days before his discharge. The claim form sought primarily a speedy hearing by a tribunal of his application. The grounds asserted a right to damages, but did not allege any injury or damage. In his witness statement in support of the application for judicial review, Mr Conroy, the legal executive responsible for PD’s case, stated:

At the times relevant to his claim, KB was detained under s 3 of the MHA. The facts of his case were summarised by me in my first judgment as follows:

The claim for judicial review considered by me in my first judgment was filed on 14 June 2001. It sought declarations that the adjournments and the delay before the hearing of 5 June 2001 were unlawful. In addition, damages under section 9(3) of the HRA were sought, but no injury or damage were then alleged. It is not suggested that a prompt hearing would have resulted in KB’s discharge. The fixing of the hearing on 5 June 2001 led to the postponement of KB’s transfer from an acute psychiatric unit to a community home. In his witness statement dated 6 March 2002, he stated:

Given the relatively short period of delay in KB’s case and the absence of any contemporaneous record of significant (or any) distress or the like, in my judgment the finding of breach of his rights under Article 5.4 is sufficient just satisfaction, and no award of damages is necessary in his case.

The facts relating to LB were summarised in the first judgment as follows:

Evidence was given by independent psychiatrists as to the prospects of LB being discharged by a tribunal if the hearing had proceeded on 12 July 2001 and if there had been a hearing on 8 August. Neither of them had examined her or thought it necessary to do so. (Any examination would have taken place considerably after the relevant period.) In their joint statement, Dr Sumners, instructed by LB’s solicitors, and Dr Boyd, instructed by the solicitors for the Defendants, agreed that LB had been quite psychotic during May 2001, and that her mental state improved thereafter, although in July 2001 she still showed occasional temper and agitation, was labile in her mood and was still suffering from a mental illness as defined by the MHA. Dr Boyd thought that at 12 July 2001 her mental state was still unstable, and her compliance with medication would have been questionable, and that in those circumstances she would not have been discharged. Dr Sumners thought that on balance she would have been discharged: an argument would have been presented that her mental state was being aggravated by difficulties experienced by her in the ward with other patients: home would have been a less stressful environment, and with appropriate community support it would have been safe to discharge her. Dr Sumners and Dr Boyd agreed that LB would have been discharged by a tribunal if there had been a hearing on 8 August 2001.

In her report of 10 July 2001, prepared for the expected tribunal hearing and a hospital managers’ hearing, LB’s RMO, Dr Coleman, pointed out that there were difficulties as to where she might stay if released. She concluded:

The hospital’s medical notes show that in early July LB was still volatile. The notes of the RMO’s ward round on 13 July 2001 state that she was “presenting in a manic way” and was disinhibited. LB stated then that she was doubtful if she could return to live with her stepfather.

My conclusion is that there was a less than 50 per cent chance of LB being discharged by a tribunal if it had heard her application on 12 July. Although her improvement had been fairly constant, she had only recently been clearly too ill to be discharged, and even on 13 July presented in a way that made her discharge unlikely. In addition, there were then unresolved problems with her accommodation in the community. I find Dr Coleman’s report, although short, well reasoned and convincing. There was no medical evidence to contradict it. I do not think that the evidence justifies a finding that Dr Coleman was unduly protective of LB or over-cautious, whether in her report of 10 July or subsequently.

There is no allegation or evidence that the delay caused any injury to her mental health. No such injury was alleged in her claim form filed on 9 October 2001 or suggested in the witness statement of her solicitor filed in support of her claim. I infer from her solicitor’s statement that the primary reason for the proceedings was to seek improvement to the alleged systemic inadequacies in the tribunal system.

In her witness statement, dated 10 December 2001, LB stated:

Where there is inconsistency between contemporaneous notes and a subsequent witness statement, I prefer the former unless there is reason to doubt their accuracy. It is understandable that anyone should in retrospect unconsciously exaggerate her reaction to a cancelled hearing. I find that LB suffered no significant distress or anxiety as a result of the cancellation of the July hearing. Furthermore, at the date of the cancellation, there might have been a postponement of the tribunal hearing without any necessary breach of LB’s right to a speedy hearing.

During the period before the cancelled August hearing, LB was given considerable leave from hospital. She was on overnight leave between 21 and 22 July, was given additional leave on 24 July, and had day leave on 25 July. She was given weekend leave on 27 July (when both she and her mother considered that she had improved), and then was given a week’s leave from 31 July.

With regard to the cancellation of the August hearing, LB states in her witness statement:

LB does not mention that she was not then at the hospital, but was out on leave. The hospital note for 7 August timed at 11.30 a.m. states:

It is difficult to reconcile these notes with LB’s statement. It would be unlikely, but not impossible, for LB to have said she had no complaints if the cancellation of the second hearing had the emotional effect she describes. In addition, since she was on leave at the time, she was not detained in any physical sense, although she did have to return to hospital on 10 August.

The restriction on her liberty caused by the second cancellation was insubstantial. Given that the total delay in LB’s case was not substantial (compare paragraph 37 of my first judgment), and the contemporaneous evidence of her mental state, and the fact that she was on leave for much of the latter period of her section, I conclude that the finding of infringement of LB’s Convention right is sufficient just satisfaction.

In the first judgment, I summarised the facts relating to the delay in the hearing of GM’s application as follows:

Thus there were 4 cancellations. While the first cancellation may not have caused a breach of GM’s Convention right, the subsequent cancellations certainly did. If one takes the appropriate time between application and hearing as 8 weeks, the period of delay was 11 weeks, nearly 150 per cent longer. Moreover, to take a period of 8 weeks is favourable to the tribunal: there is nothing to indicate that an effective hearing could not have taken place on 16 July, if a tribunal had been available: on this basis the delay was 15 weeks. This was a bad case.

GM’s claim form, filed on 9 October 2001, stated that his immediate interest was in obtaining an early hearing of his application to the Tribunal, and asserted that he also had a personal interest in ensuring that the Tribunal complied with its wider duties under the MHA and HRA. No damage or injury was alleged in the claim form or in the solicitor’s supporting witness statement. No point on this was taken on behalf of the Secretary of State. In his witness statement dated 15 February 2002, GM stated:

GM was born on 19 May 1960. He was first admitted to hospital in 1984, with a diagnosis of hypomania. Between 1984 and March 2000 he was admitted to a number of hospitals with various diagnoses, with reference being made to drug and alcohol abuse. Previous discharges had been unsuccessful, and been rapidly followed by readmission. In March 2000 he was admitted under section 2; his detention was continued under s 3 until he was discharged in September 2000. He was readmitted on a new section 3 on 24 November 2000. In February 2001 a proposed discharge failed because on leaving the hospital for a high-support nursing home he immediately started drinking heavily. Dr Gijsman’s report dated 29 June 2001 stated:

I had individual reports on GM from Dr O W Hill, instructed by his solicitors, and Dr C E Boyd, instructed by the Defendants’ Solicitor, and a joint report of their discussions. Both gave oral evidence. Neither considered that GM had had a chance of discharge by a tribunal on any of the dates of cancelled hearings that was greater than 50 per cent. Dr Hill’s view was that he had a 30 per cent chance of discharge at a tribunal held on 16 July 2001. Dr Boyd, who queried the hospital’s diagnosis of GM, thought that he had no chance of discharge at any of the dates of the cancelled tribunal hearings.

I find that there was no significant prospect of GM’s discharge at any of those dates. His history was of repeated absconsions, of drug, substance or alcohol abuse, and swift deterioration on release due at least in part to such abuse. He improved after he had been put on a behavioural programme in a high dependency unit: see the hospital notes of 25 September and 28 September 2001. Comments on him in the notes reflect his improvement: I refer to those for 2, 4 and 7 October 2001, and to that for 17 October 2001. The tone of the CPN’s report of 17 October 2001 differs markedly from earlier reports, and it expressly envisaged his discharge.

Having been discharged on 15 November 2001, GM remained in hospital as an informal patient. He was again detained under s 3 on 24 December 2001 after becoming increasingly aggressive and agitated on the ward.

I do not find that the cancellations led to absconsion or to drug, alcohol or substance abuse or to deterioration in GM’s mental health. He absconded and abused drug, alcohol and other substances regularly both before and after cancellations. Furthermore, Dr Hill accepted that it was not possible to say whether a cancellation would have affected him more adversely than a negative decision.

I do find that the cancellations caused GM distress. He told Dr Hill that they had done so, and staff nurse Perlie Richardson confirmed it. The notes for 13 and 14 July 2001 appear to be missing, and must therefore be regarded as neutral. The notes for 3 August show that he absconded for 1½ hours after learning of the cancellation, but after his return was in a good mood and seemed fine with no problem. He absconded on 2 September, before learning of the next cancellation. The hospital notes do not refer to the cancellation of 3 September, and I infer that it did not unduly distress GM.

Bearing in mind the period of delay, the repeated cancellations, and the confirmation by a member of staff of distress caused by one or more cancellations, I conclude that the breaches of Article 5 must have caused sufficient distress and frustration to make necessary an award of damages. The appropriate sum is £1,000.

In the first judgment I summarised the facts relating to JR’s claim as follows:

Thus there were 4 cancellations and in the region of 12 weeks’ or more delay (depending how one treats the delay caused by the adjournment at JR counsel’s request).

JR’s claim form was filed on 7 November 2001. It alleged that following the 5 September cancellation he was “becoming increasingly distressed and frustrated” by the fact that his application was not being heard. The only remedies sought were declarations of the unlawfulness of the delay and of the cancellations. In his witness statement in support JR did not allege that he had suffered any distress: he asserted that he had a very strong case for discharge, which he wanted to be heard. In his second witness statement, he stated:

JR was born on 27 November 1969. He suffers from a schizophrenic illness. He was first admitted to a psychiatric hospital and diagnosed in 1991. On 2 April 2001 he was visited at home by his CPN for the injection of his depot medication. He tried to inject her with the medication by force. This incident was clearly serious, and gave rise to concerns as to the risk he presented to others. Dr Kahtan, the forensic psychiatrist who subsequently saw him, stated that “On the face of it, his behaviour was uncharacteristically aggressive, and seems to be attributable to delusional beliefs associated with non-compliance with prescribed mediation over the last few months.” On 12 April 2001 he was detained under s 3. He was delusional and superstitious. On 26 April he was noted to be extremely paranoid and thought disordered.

The RMO’s report prepared for the 6 June hearing stated that he remained very psychotic, very deluded and without any insight. He convincingly advised against discharge. The ASW’s report was to similar effect. Dr Hill, instructed by JR’s solicitors, was more positive, but did not advise discharge, hoping that there would be a programme of progressive leave. The senior house officer’s report for the anticipated 11 July tribunal hearing stated that there had been some improvement but again advised against discharge. Dr Kahtan, a forensic psychiatrist reviewed JR on 2 July 2001 (he had previously reviewed him in May 2001) and concluded that despite his improvement it remained appropriate to detain him under s 3. The ASW’s report of 28 August 2001, for the anticipated 6 September tribunal hearing, concluded:

A nursing case note for 5 September 2001 records: “Tribunal cancelled – J upset.” The entry for the following day records: “Sleeping most of the day – too busy to discuss cancellation with him but sympathetic re his third cancellation.” JR remained withdrawn for the next 3 days. Generally, Dr Hill concluded, in his report dated 17 January 2002:

Having been supplied with Dr Hill’s account of a page of case notes that he had not seen, and JR’s witness statement, Dr Higgins accepted that there was “evidence to support the contention that JR was frustrated at the cancellation of Tribunals”. Dr Higgins commented:

Drs Hill and Higgins agreed that there was insufficient or no evidence that JR overstayed his leave on 24 August 2001 as a result of the cancellation of the tribunal hearing earlier that month.

Both Dr Hill and Dr Higgins gave evidence orally. Dr Hill is an obviously sympathetic and able psychiatrist. He would be inclined to recommend discharge of a patient into the community in circumstances where others would be, rightly or wrongly, more cautious. I found Dr Higgins to be a very impressive witness, a finding that is consistent with the thoroughness of his reports and his willingness to reconsider his views in the light of additional information, as demonstrated by the addendum of 12 August 2002 to his original report of 4 July 2002. Where they differed, I prefer the opinions of Dr Higgins. On the prospects of JR being released at the dates of the cancelled tribunal hearings, their opinions were as follows.

6 June 2001

15 August 2001

6 September 2001

21 September 2001

On 18 August 2001, JR’s mother wrote to the hospital reiterating a request that she be permitted to take him away on holiday. Her request was refused. During her absence, there was an incident on 1 October 2001 that affected his presentation and probably his health. It was described by Dr Hill as follows:

Dr Higgins commented:

JR was discharged by his RMO on 8 January 2002 and left hospital on 10 January 2002. As far as I am aware, he has not been readmitted.

My conclusions are as follows. There was no significant chance of JR being discharged by a tribunal on 6 June 2001. Although there was a significant chance of discharge on 15 August, he would not have been discharged by a tribunal hearing on that date. The tribunal would have been influenced by the seriousness of the incident of 2 April 2001, and the view expressed by Dr Kahtan in his first report that he should not be discharged from hospital until he was completely better; and he was not. A cautious approach to his discharge was appropriate. If he had not then been released, he would have been released at one or other of the September hearings, if one had taken place: in this connection, I accept the opinions of Dr Higgins. The cancellations induced frustration in JR, and the cancellation of the 6 September hearing caused real distress that affected his mental state and behaviour, if not his mental health. The decision of the tribunal on 8 October 2001 not to release him was to some extent caused by his reaction to the incident of 1 October.

In their written submissions on behalf of the Defendants, Mr Sales and Miss Laing submitted that JR would not have been discharged on 15 August, and that the subsequent cancellations in September had no causal significance, since, as I understand the argument, the 15 August hearing would have complied with JR’s Convention rights, and if it had taken place there could not have been any hearing in September. I do not think that this is the correct approach to the assessment of damages. There was a continuing breach of JR’s rights under Article 5.4. The 15 August date having been cancelled, there should have been a tribunal hearing in September. Damages must take into account the fact that because no hearing was held in September, JR lost the opportunity to be discharged. On the other hand, I do not think it right to assume that if he had been discharged in September, he would necessarily have stayed out of hospital until January, when he was in fact discharged. His reaction to the incident of 1 October 2001 was indicative of the fragility of his mental health.

A substantial award of damages is necessary, bearing in mind the length of the delay before an effective hearing, the number of cancellations, the effect of the cancellations on JR, the fact that, as I find, he would have been discharged by a tribunal hearing in September. Mr Gledhill and Mr Mullins submitted that the damages which should be awarded to the Claimants were in the range £1,000 to £4,000. The damages to which JR is entitled are at the top of this range. The damages in his case will be in the sum of £4,000.

In the first judgment, the facts relating to MK’s claim were summarised as follows:

Between 23 and 26 July 2001, 7 section 2 applications had been made to the South London Tribunal, all of which had to be heard within 7 days. The Regional Chairman had to cancel the 3 section 3 hearings due to take place on 2 August at the hospital where MK was detained so that the section 2 hearings could take place within the statutory time limit. The Chairman understandably and reasonably thought that she had no choice but to cancel MK’s and the other section 3 hearings. While such cancellations can occur without any infringement of Article 5.4, I read the Chairman’s statement in this case as attributing the cancellation of MK’s (and the other 2) hearings to a lack of sufficient tribunal members. Furthermore, the original period between application and first fixed hearing was 7½ weeks; and the period between cancellation and effective hearing over 2 weeks. MK’s right to a speedy hearing was infringed.”

MK contends that the period of delay in her case was 4 weeks and 4 days, on the basis that her hearing should have taken place on 16 July 2001. Her claim form claimed damages for unlawful detention, but did not allege that the cancellation of the hearing of 2 August damaged her health. The purpose of her proceedings was to obtain an expedited hearing of her application, which she achieved. The evidence in support did not suggest that she had suffered distress or injury to her health as a result of the postponement of the hearing.

MK was born on 13 March 1982. She was diagnosed as suffering from schizoaffective psychosis. The tribunal that heard her application concluded that her illness was not of a nature or degree that made it appropriate for her to be detained. She could move into an open ward on an informal basis, and eventually into the community. Dr Boyd, who prepared two reports on the instructions of the Defendants’ solicitors, and whose evidence was not controverted, was of the opinion that there was no evidence of any distress or deterioration to her mental health resulting from the cancellation of the hearing fixed for 2 August 2001. He thought that there was an 80 per cent chance that a hearing on that date would have resulted in her discharge, there being no evidence of any significant change in her mental health between 2 and 17 August 2001.

On the basis of this evidence, MK was unnecessarily detained for at least 2 weeks. It is not easy to determine whether there was any real possibility of a tribunal hearing before 2 August, given that the independent psychiatrist instructed by her solicitors did not report until 26 July 2001, and her RMO had to produced his report for the tribunal until 14 July 2001. It may be, of course, that an earlier hearing date would have led to the psychiatrists producing their reports earlier: I do not know. For the purposes of the assessment of damages, I take as the relevant period 2 weeks.

The Defendants accept that an award of damages is necessary in this case. MK must be compensated for having remained detained in a minimum secure ward (Hume Ward at Springfield Hospital), rather than an open ward, in which she had agreed to remain as an informal patient. The impact of her wrongful detention was considerably less serious than in Evans, where but for the wrongful detention of the claimant he would have been released from prison. In my judgment, the appropriate amount is £1,000.

The facts relating to TB’s case were stated in the first judgment to be as follows:

TB’s judicial review proceedings were commenced on 8 January 2002. Their purpose was to secure the hearing of his application. No allegation of distress or injury to health was made. It is not suggested that an earlier hearing of his application would have resulted in his discharge, or any greater chance of discharge than in January 2002. TB sought a decision from the tribunal that he be conditionally discharged. The independent psychiatrist instructed by his solicitors, Dr Pierzhchniak, reported on 22 October 2001 that he continued to suffer from a mental illness of a nature and degree that warranted his detention in hospital. Neither the ASW nor his RMO supported conditional discharge. There were three cancellations, and the period of delay was considerable. While TB could have had no great expectation of a conditional discharge, the period of uncertainty must have had a sufficient effect on him to make an award of damages necessary to give just satisfaction. The amount of damages appropriate is modest: in my judgment, the sum of £750.

The relevant facts are set out in the judgment of Scott Baker J. In 1992 he had been made subject to order under s 37 and s 41 of the MHA. In 1997 he was discharged from hospital to prison. On 2 February 2001, when he was due to be discharged from prison, the Secretary of State recalled him to hospital under s 42(3). On 8 February 2001 the Secretary of State referred his case to the tribunal. Rule 29(cc) of the Mental Health Review Tribunal Rules required the tribunal to fix a date for the hearing not later than 8 weeks nor earlier than 5 weeks from the date of receipt of the reference. After a number of adjournments, an effective hearing of the application took place between 8 and 10 October 2001. The tribunal concluded that B was suffering from a treatable personality disorder, and refused to discharge him. The period between application and effective hearing was eight months, an unjustified multiple of the 8 weeks laid down in the Rules (This period is not necessarily a maximum for an effective hearing: adjournments may be required, as was the first adjournment in B’s case.) The delay was caused by multiple adjournments, and resulted from a failure of case management. Scott Baker J said, at paragraph 26 of his judgment:

The uncertainty experienced by B over such a considerable period of time requires a modest award of damages to afford just satisfaction. The amount of damages is £1,000.

The task of producing this judgment has been made considerably easier by the very considerable amount of work done by all counsel in producing excellent written summaries of submissions, authorities and facts, and by the copying the numerous authorities to which I was referred. I express my appreciation to counsel and to the other members of the parties’ legal teams concerned.