When politics and law collide: The prorogation judicial reviews
The latest judgment in the long-running dispute between salmon fisherman, Mr Mott, and the Environment Agency (Mott & Merrett v Environment Agency  EWHC 1892 (Admin)) about the imposition of restrictions on his fishing licence provides useful guidance on the calculation of damages under the Human Rights Act 1998 (“HRA”).
As noted in the earlier judgment of the Supreme Court (to which we will return later) Mr Mott (and Mr Merrett), has a leasehold interest in a so-called “putcher rank” fishery on the Severn Estuary. This is an old fishing technique, involving the use of conical baskets known as “putchers” to trap adult salmon as they return from the open sea to their river of origin to spawn. Mr Mott had operated the putcher rank under successive leases since 1975. Mr Mott also held a separate licence granted by the Environment Agency permitting him to fish. He claimed that, before limits introduced by the Agency in 2011, his average catch using the rank was some 600 salmon per year which gave him a gross annual income of approximately £60,000.
In 2012, the Environment Agency imposed conditions with a view to protecting the stocks of the River Severn. These had the severely limited the number of fish that could be caught by Mr Mott: rather than 600 salmon he was permitted only to catch between 23 and 30 fish per year, with the precise totals varying between 2012 and 2014. Mr Mott commenced judicial review proceedings in the High Court. The court found that the restrictions were unlawful in the absence of compensation by reason of the interference they entailed to Mr Mott’s rights to property under Article 1 of the First Protocol to the ECHR ("A1P1"). The court also declared that an award of damages was necessary to afford just satisfaction to Mr Mott for that interference, pursuant to s8 of the HRA.
Successive appeals from the High Court went, first, to the Court of Appeal and subsequently to the Supreme Court. In its judgment of 14 February 2018, the Supreme Court found in favour of Mr Mott and upheld the trial judge’s finding.
The case subsequently came back before the courts in May 2019 to determine the amount of the damages which had been declared necessary back in 2015. HHJ David Cooke, who was the original trial judge, handed down his judgment on 18 July 2019. The judgment dealt with three discrete but related issues: (i) the compensation required to be paid to Mr Mott for the restrictions between 2012 and 2014 which had been the subject of the judicial review, (ii) compensation to him in respect of subsequent years and (iii) the position of Mr Merrett, Mr Mott’s fellow lessee of the putcher rank.
On the first issue, it appears there was much agreement between the parties on aspects of the approach to be adopted by the court. This included that the key legal principle was that the applicant should, so far as possible, be put in the position as if his Convention rights had not been infringed (see paragraph  citing R (Anufrijeva) v Southwark LBC  EWCA Civ 1406). However, significant disagreement existed between the parties as to how this principle should be applied to the facts. The effect of this was that Mr Mott sought £187,278. Briefly summarised, this was calculated as the difference in the value between the 23 to 30 salmon he had been permitted to catch following the imposition of restrictions and the 600 salmon he had caught previously. The Environment Agency argued instead that the damages should be calculated by reference to the difference between the 23 to 30 salmon and a catch of up to 60 salmon. The latter was said to be a figure which the Supreme Court would have found to comply with A1P1. This would have led to compensation of just over £10,000. The Agency argued if this was thought insufficient then the amount should be doubled to £20,000 to reflect a fair balance between the interests of Mr Mott and the public as a whole (see paragraph ).
The court resoundingly rejected the approach suggested by the Environment Agency (see paragraphs  to ). As the court put it:
20.All of these approaches in my view amount to no more than inviting the court to put its finger in the air and make a guess on an unprincipled basis as to what a properly acting decision maker would have decided. It would in my judgment be wrong to do so.
21.Even if the Agency had presented a reasoned case, with evidence as necessary, as to what decision it might have reached, it seems to me objectionable in principle to permit it to do so. Any such case would inevitably be compiled with hindsight and the benefit of findings made by the court as to the respects in which its earlier decision erred, enabling it to plot its way around difficulties with a view to getting back as close as it could to the effect of its unlawful decision. No doubt that may happen in a case where a decision is remitted to be retaken, but in a case where the citizen has been caused irrecoverable financial loss by an unlawful decision it would seem to me unjust to permit the state to escape from responsibility to compensate him by in effect backdating a later decision.
Accordingly, the Court awarded Mr Mott the £187,278 he had sought.
On the second issue, Mr Mott had not brought proceedings to challenge the lawfulness of the catch limits imposed between 2015 and 2018 but had sought nonetheless to obtain damages for them in these proceedings. It was noted that the time limit had long-since passed for the bringing of such proceedings unless the court granted an extension, which had not been sought (see paragraph ) and that it would be wrong to presume that such a challenge even if brought would be a mere formality (see paragraph ). Liability for later years could only arise if it were established that the decisions in respect of the subsequent years were unlawful and accordingly Mr Mott’s claim was dismissed (see paragraph -).
On the third issue, Mr Merrett, despite being a joint lessee with Mr Mott, had not sought to take an active part in the proceedings until after the successful judgment in the Supreme Court. He subsequently sought permission to take an active role in the proceedings in order to be paid compensation. The court ultimately refused permission. It was noted that no injustice resulted from this decision as the amount awarded to Mr Mott included an element which Mr Merrett might have sought. The relevant proportions in which this amount should be shared between them could be determined subsequently if not agreed (see paragraph ).
Awards of damages for breaches of A1P1 rights remain relatively rare, as are cases which deal with the amount of such damages rather than this issue being agreed between the parties out of court. This case therefore provides useful practical guidance on the court’s approach. Having decided that the imposition of conditions was so severe as to amount to unlawful interference with Mr Mott’s A1P1 rights and be deserving of compensation, it is not surprising that the court rejected the arguments put forwards by the Environment Agency. To do otherwise would have allowed the Environment Agency to engage in after the event speculation on what (lawful) decision it might have reached and would have significantly reduced the effectiveness of Mr Mott’s remedy.
The position of Mr Mott on the second issue (in relation to 2015 to 2018) is a reminder of another general principle of relevance to those considering challenging the actions of public authorities. This is that decisions of public authorities are lawful unless and until they are found to be unlawful, as well as the need to commence judicial review proceedings to challenge the lawfulness of such measures in time. These are important issues in the context of any potential judicial review, not just ones as complicated and long-running as Mr Mott’s case.
Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.
Mark Mills is an Associate on secondment from Ofgem in our Public Law team. He has provided advice on a wide range of contentious and non-contentious administrative, regulatory and public law matters.
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