Tort and the

Human Rights
Act

Dr Aislinn O’Connell

Aislinn.oconnell@rhul.ac.uk
Intro

– General impact of HRA on tort

– Vertical and horizontal effect of HRA
– Impact of HRA on specific areas of tort
What is the Human Rights Act 1998?

– Incorporates the European Convention on Human Rights (1950) in UK law

– Makes decisions of the European Court of Human Rights binding upon UK
courts
 The Effect of the HRA Upon Tortious
Claims
– S.7

1. A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by
section 6(1) may—
a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
b) rely on the Convention right or rights concerned in any legal proceedings…

– S.8
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the
award of compensation under Article 41 of the Convention.
Vertical and Horizontal Effect?
Vertical and Horizontal Effect?

– Vertical effect has tended to remain within realm of claims under s.7 HRA e.g.
Watkins v Home Office [2006] UKHL 17
– Direct v indirect effect?
– ‘Strong’ v ‘weak’ forms of indirect effect
Vertical and Horizontal Effect?

– S.6
(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
…
(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature…
 Vertical and Horizontal Effect?

– S.12 Freedom of expression.

(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the
exercise of the Convention right to freedom of expression
…
(4) The court must have particular regard to the importance of the Convention right to freedom of
expression and, where the proceedings relate to material which the respondent claims, or which appears to
the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

The Turning Point for Horizontal
Effect
– Douglas v Hello! [2001] QB 967

– Restricted to privacy claims?

The Effect of the HRA Upon Tort:
Negligence
– Art. 2 Right to Life
– Art. 3 Freedom from Torture and Cruel and Inhuman Treatment
– Art. 6 ECHR Right to Fair Trial

– Osman v UK [1999] 1 FLR 193

– Z v UK [2001] 2 FLR 612
The Effect of the HRA Upon Tort:
Trespass to the Person
– Austin v Metropolitan Police Commissioner [2009] 1 AC 564
– Balance between right to liberty and the protection of other rights
The Effect of the HRA Upon Tort:
Defamation
– Balance between Arts. 8 and 10 ECHR
– Reynolds v Times Newspapers [2001] 2 AC 127
– Flood v Times Newspapers [2012] 2 AC 273
 The Effect of the HRA Upon Tort:
Privacy
– Douglas v Hello! [2001] QB 967
– Campbell v MGN [2004] UKHC 22
– Perhaps the most substantive impact on tort law?
– Balance between right to privacy and right to freedom of
expression
The Effect of the HRA Upon Tort:
Damages
– Vindicatory damages
– Art. 41 ECHR:
‘If the [ECtHR] finds that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured party.’
– ‘Mirror principle’ – R(Greenfield) v SSHD [2005] UKHL 14
– What is ‘just satisfaction’?
– Greenfield
– R(Lumba) v SSHD [2011] UKSC 12
– R(Faulkner) v Secretary of State for Justice [2013] UKSC 23
Summary

– Settled law that HRA grants horizontal as well as vertical rights

– S.6 HRA is key to creating horizontal effect in tort claims
– HRA has tended to be applied in terms of balance of rights
– Ongoing issues over question of ‘just satisfaction’ and award of damages