The ratio of the decision in AXO v CICA [2024] EWCA Civ 226 is that in certain circumstances, there is overlap and double recovery of a CICA award and Convention damages for breach of the HRA, so that it is open to CICA to seek repayment from HRA damages of a CICA award.
The decision can be read here and it is important for two reasons.
The first is practical. Damages for breach of Art 2 are typically (and were in this case) £10,000 to each person bereaved. The CICA bereavement award is £5,500.
CICA bereavement awards can be made quickly following an unlawful killing. Settlement of litigation takes much, much longer and is costly. This decision has obvious proportionality and costs consequences.
The second is legal learning. Whipple LJ’s detailed decision provides a comprehensive explanation of what CICA awards arising out of a death are for, and the purpose of HRA damages.
Perhaps the key take away comes from Underhill LJ’s single paragraph judgment, where he drew attention to damages for injury to feelings under the Equality Act 2010, and explained that:
“UK lawyers can sometimes be led by the unfamiliarity of the term “moral damage” into thinking that the European Court of Human Rights awards compensation for non-pecuniary loss on a fundamentally different basis from that adopted domestically. But the passages which Whipple LJ cites from Varnava (paragraph [103] above) and from the Presidential Practice Direction (paragraph [105] above) show that that is not the case.”
The Facts
In October 2011, a 5 year old’s mother was killed by the mother’s ex. The state was aware of a long history of domestic abuse. In November 2012, CICA awarded the child £25,500: £5,500 for bereavement and £20,000 for loss of parental services.
An HRA claim for damages for breaches of Art 2 and 3 ECHR was brought against the police, social services and probation. The defendants offered a total of £15,000: £10,000 for the Art 2 claim, £5,000 for the Art 3 claim. The litigation friend agreed and the settlement was approved in September 2019.
Two months later, CICA sought to recoup the full £15,000 on the basis that, applying the statutory scheme, the HRA damages were paid “in respect of the same injury”. The First Tier Tribunal agreed that all of the £15,000 HRA damages should be repaid. The child’s JR in the Upper Tribunal succeeded in part. The decision that the damages of £5,000 for breach of Art 3 should be repaid to CICA was overturned and that decision was not appealed.
The child did appeal on the issue of whether she should repay the £5,500 bereavement award to CICA from the £10,000 breach of Art 2 £10,000 settlement sum.
CICA successfully resisted the appeal. The Court of Appeal unanimously decided that there was double recovery and it was open to CICA to seek repayment of £5,500.
The sums properly paid to the child were therefore:
- £10,000 Art 2 damages less £5,500 CICA award = £4,500
- Art 3 damages of £5,000
- CICA award for loss of parental services – £20,000
Total: £29,500.
The Issues on Appeal
These were the issues on appeal:
- Is paragraph 49(1) of the 2008 Scheme (the right to deduct) limited to situations of double recovery? If so:
- What are the principles which underpin the payment of (a) compensation by CICA pursuant to the 2008 Scheme; and (b) damages under the Convention?
- In this case, is there any double recovery between the CICA Compensation and the HRA Damages (or any part of them)?
- In summary, what approach should be taken when determining whether there is double recovery between CICA awards and Convention damages?
Whipple LJ gave the lead judgment. First, she clarified that it mattered not whether the CICA award or the HRA settlement came first (para 48).
She then turned to the central issue: does the right of repayment arise only where there is double recovery, or whenever money is received which is “in respect of” the injury or death? She agreed with the appellant that the right of repayment does not arise unless payment duplicates compensation already received (paras 50-55). Thus the Upper Tribunal had made an error of law when it concluded that paragraph 49(1) of the CICA Scheme was not limited to situations were double recovery arose, and its decision had to be set aside.
Next, she looked at the purposes of awards under the CICA scheme. She found that a CICA bereavement award and a Fatal Accidents Act bereavement award are similar: both compensate for non-pecuniary loss in the form of grief and loss of the deceased’s help, counsel and guidance.
The CICA award for “loss of parental services” can be paid to under 18s in recognition of tasks parents do for children and it is made in addition to any dependency award. Whipple LJ found that it, and its calculation, are similar to a civil claim for a Regan v Williamson award. She approved Chamberlain J’s explanation of such awards in Grant v Secretary of State for Transport [2017] EWHC 166 (QB) at paragraph 107. She concluded that the “loss of parental services” CICA award reflects a form of pecuniary loss.
In relation to Convention damages, the child argued that though there could be overlap between damages for breach of Art 2 and a CICA bereavement award, it was not sufficient to amount to double recovery. That was particularly taking into account the Convention concept of “moral damage” which is unknown to domestic law.
The domestic cases are analysed at paragraphs 79 to 104. Inquest lawyers will want to note those addressing Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, (paras 81-83). And also, the reference (at para 85) to Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252, [2014] QB 411 where the Court of Appeal confirmed that the fact that the state’s failure made no difference to the outcome was not relevant to liability, though it might be to quantum.
The key propositions arising were (see para 106):
- The Court will grant such relief or remedy for a breach of the Convention as is within its powers and which it considers to be just and appropriate, taking account of the principles developed by the ECtHR to afford just satisfaction to an injured party (HRA s 8(1), Greenfield [6]).
- The focus of a claim under the ECHR is to uphold standards and vindicate rights, and not to obtain compensation (Greenfield [9], Van Colle [138], DSD in Court of Appeal [65]-[68], DSD in the Supreme Court [136], Varnava [156]).
- In deciding what remedy is necessary, the Court will consider the loss or damage actually sustained as well as the “overall context” in which the breach occurred (Alseran [914], Practice Direction [12]).
- Damages for non-pecuniary loss will in principle be available for breaches of Articles 2 and 3, which rank as the most fundamental provisions of the Convention (Edwards [97]).
- Where damages are awarded to reflect non-pecuniary loss, the Court will adopt a broad brush approach to assessment of damages to arrive at an award that is “equitable” (DSD [17], Varnava GC [224]).
- Non-pecuniary loss is sometimes referred to as “moral damage” (Varnava GC [224], Sturnham [32]), which concept includes mental or physical suffering (Varnava GC [224], Alseran [912], President’s Direction [10]).
In relation to “moral damage”, the child argued that the difference between a Convention award and a domestic award, whether CICA or civil law, was such that there was no overlap or double recovery. The Court of Appeal disagreed. It found that whether there was overlap would depend on the facts of each case and the overall context in which the Convention award was made. A fairly high level, general view about what each type of award was for would have to be made.
In a case involving a fatality where damages were awarded to an indirect victim for an Art 2 breach closely connected with the death, there would be overlap: “mental suffering is the cardinal feature of both claims”. In such a case, if a FAA bereavement award had been paid, they would not be awarded HRA damages in addition. However:
“By contrast, where the Article 2 breach has led to harm which is discrete (for example, a failure to investigate the death had led to delay and additional anxiety and upset), it may be possible to separate the mental suffering consequent on the death from the anxiety and upset consequent on the failure of investigation: this was precisely the exercise that Green J undertook in DSD.”
In this case, there was a close factual nexus between the alleged Osman failures which created the opportunity for the ex to murder the child’s mother, and a close factual nexus between the alleged failures and the CICA bereavement award. The case was similar to Rabone where, had a CICA award or statutory bereavement been paid, no Convention damages would have been necessary. The Convention claim, and common law award represented by the CICA award, were paid for the same thing, the child’s grief and mental suffering resulting from her mother’s death.
When determining whether there is double recovery, the general approach is (see para 121):
(1) Determining what the Convention damages were for, and whether they overlap with the CICA award(s), will depend on analysing the reason why the Convention award was made in the “overall context” of the case.
(2) In considering the “overall context” of the case, a high level, general, and itself broad brush approach should be taken.
(3) The existence of moral damage as a component of the award of damages for Article 2 breaches can usually be assumed and does not, of itself, mean that there is no duplication.
(5) In the context of Article 2, there is a difference between Convention awards for violations of human rights which bear a close factual nexus with the death, and those where the violation(s) led to discrete harm and loss.
Finally, if the award making body cannot decide where there is overlap between a Convention award and a CICA award, the default is that CICA cannot seek repayment because double recovery is not made out.
The Court suggested the following practice points:
- It is better for a award making body to assess Convention damages without regard to any CICA award, and leave it to CICA to decide if it wishes to seek repayment on the ground of double recovery;
- The possibility of CICA seeking repayment may be relevant to a judge approving settlement of a claim made on behalf of a protected party. That possibility may affect the judge’s assessment of the merits of the proposed settlement.
In relation to this last point, it may be sensible for those representing the protected party to ask CICA to state its intention in relation to repayment, so that that information is to hand at the approval hearing.