Human Rights Act 1998: damages claims under s 8
In SW & TW (Human Rights Claim: Procedure) (Rev 1)  EWHC 450 (Fam), Cobb J expressed the view obiter – the question was not formally before him – that Human Rights Act 1998 (‘HRA 1998’) s 8 damages claims (‘HRA damages claims’) alongside care proceedings Cobb J must be issued under CPR 1998 Pt 8. The terms of HRA 1998 s 8(2) – that damages claims must be ‘in civil proceedings’ – makes this the logical view. This article proceeds on the assumption that Cobb J’s guidance in SW & TW is correct.
It follows from this, that the CPR 1998 Pt 36 regime – ‘Offers to settle’ – applies to HRA damages cases. Part 36 represents the modern view for civil litigation: that parties be encouraged to reach a settlement by the modern, and less formalistic, equivalent of payments into court; or a slightly formalised version Calderbank correspondence. It can be contrasted with the primitive rejection of costs restraints in ancillary relief proceedings, where the rules committee have rejected the civilising concepts of costs penalties for financial remedy cases (as narrowly defined); though costs are not rejected in all other forms of family and wider definition financial remedy proceedings (‘clean sheet’ costs applications: eg interim financial hearings; Children Act 1989 Sch 1 claims etc). Part 36 represents a much simpler – dare one say more logical? – scheme than anything known to family proceedings.
HRA damages claims: the plot to March 2017
The last three months has seen a variety of reported cases of litigation over HRA damages claims for children, and their parents, in care proceedings where there is criticism of the local authority in treatment of such children (HRA 1998 ss 6-8). The plot so far on such claims has progressed a little like a game of judicial tennis between Keehan J and Cobb J – as their views have developed and contrasted:
- P v A Local Authority  EWHC (Fam) saw Keehan J serving. The LAA had said, in separate HRA damages proceedings (for which they refused legal aid) and which followed funded wardship proceedings, that the legal aid statutory charge applied to those earlier proceedings. Keehan J disagreed, firmly.
- In CZ (Human Rights Claim: Costs)  EWFC 11, Cobb J responded low over the net and deep into Keehan J’s back-hand. He said that a HRA damages claim attracted the charge for the parallel care proceedings (wrongly in my view); and left it to a circuit judge to deal with any final costs order.
- Late in the proceedings in H (A Minor) v Northamptonshire County Council & Anor  EWHC 282 (Fam) before Keehan J, the LAA conceded that the charge did not apply, where they had issued a separate certificate for the damages proceedings; but, despite the LAA capitulation – in that case – Keehan J was able to respond to Cobb J by setting out guidance for HRA damages claims. The statutory charge issue remained at large.
- In SW & TW (Human Rights Claim: Procedure) (No.1)  EWHC 450 (Fam) Cobb J conceded the procedural game to Keehan J, and further developed its ramifications. He concludes that Human Rights Act 1998 claims should be in civil proceedings under Civil Procedure Rules 1998 (‘CPR’); but largely left open the legal aid statutory charge issue which is likely to be reconsidered before him in April.
My views on the extent to which the charge does not, I believe, applies appears in a number of places (see eg https://dbfamilylaw.wordpress.com/2017/03/03/hra-damages-and-legal-aid-a-pyrrhic-exercise/). In summary, care proceedings and any HRA damages claim are ‘separate’ proceedings (Civil Legal Aid (Procedure) Regulations 2012 reg 37(3)); that they would not be associated in civil proceedings if the solicitor’s lien were to apply (Solicitors Act 1974 s 73); and therefore for LAA to claim a charge over care proceedings costs – and thus almost invariably to wipe out any damages recovered under HRA 1998 s 8 – is unlawful. This is for Cobb J to decide at the adjourned hearing in SW & TW (above). Into this costs law mulch must then be mixed CPR 1998 Pt 36 for the family lawyer, whose clients are now required to take proceedings under CPR 1998 Pt 8 for HRA damages.
CPR 1998 Part 36: an introduction
CPR 1998 Pt 36 provides a self-contained offer procedure which defines how costs may be awarded where offers are accepted or offers beaten following a final hearing. This article explains how an offer is made. A follow up article will explain the consequences in term of award of costs.
Part 36 replaces the former procedure for payment into court (abolished since 2007) and all but replaces Calderbank letters (Calderbank v Calderbank  Fam 93 CA) for civil claims. It provides a procedure which enables the following:
- Offers to settle to be made before issue of proceedings (CPR 1998, r 36.7(1));
- Offers to be made in respect of individual issues; and
- It is intended to encourage claimants to put forward proposals for settlement on similar costs terms as defendants (with the added incentive provided by favourable rates for payment in r 36.17(4)).
Part 36 offers can be made by claimant or defendant provided they are in the form required by r 36.5. Proposals then become akin to without prejudice or Calderbank proposals which cannot be disclosed to the court (r 36.16). Specific costs consequences follow from any acceptance of an offer (r 36.13); or from a judgement and from the fact of beating or failing to beat a Pt 36 proposal (r 36.17). In SW v TW Cobb J stressed the importance of claimants being realistic as to the amounts of their claims (paras -); and see HRA 1998 s 8(4): principles of award in European Convention 1950 jurisprudence). Claimants are urged by the new rules to make offers to settle in a way that, pre-Pt 36, they were under no obligation; but in exchange r 36.17(4) provides an extra incentive to place their cards on the table at an earlier stage than might previously have been the case.
Rule 36.2(1) makes it clear that Calderbank letters or other forms of offer to settle are still available; but that if the benefits of near automatic costs orders under Pt 36 are to be achieved, offers must be made in accordance to what is required by r 36.5. Thus, even without compliance with r 36.5 the court still has discretion as to award of costs under Senior Courts Act 1981 and CPR 1998 r 44.2 (French v Groupama Insurance Company Ltd  EWCA Civ 1119). For an example of the court holding a defendant to a costs order where she refused pre-proceedings Calderbank proposals in what would now be TOLATA 1996 proceedings, see Butcher v Wolfe and Wolfe  1 FLR 334, CA.
Form and content of a Part 36 offer
Rule 36.7(1) makes it clear that a Pt 36 offer made before issue of proceedings is as effective as an offer made following issue. Rule 36.5 sets out the formal terms for an offer, by claimant or defendant. It includes that the offer must be in writing; that it must make clear that it is made pursuant to Part 36; and it must specify ‘a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with r 36.13 [(see below])… if the offer is accepted’ (r 36.5(1)).
Acceptance can only be in writing (r 36.11(1)). It may be in Form 242A; but it must be served (PD36A para 3.1):
- the offeror or their legal representative (if represented); and
- the court.
The formalities of offer and of acceptance, or preparation for final hearing with offers made, are now in place. In Part II the costs consequences of Part 36 offers will be explained.