Offers to settle: HRA damages claims and CPR Part 36 – Part I

“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 [2016] 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) [2017] 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 [2017] 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) [2017] 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.”

dbfamilylaw

Human Rights Act 1998: damages claims under s 8

In SW & TW (Human Rights Claim: Procedure) (Rev 1) [2017] 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…

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