Should damages be available for judicial review? Tim Malloch investigates
Damages are not generally available as a remedy for judicial review proceedings, unless there has been a breach of EU law or the Human Rights Act 1998. This is an arbitrary distinction that the Law Commission has said should be reformed. This article explains that this general prohibition:
- is unfair, as it creates an incentive for public office holders not to create documents; and
- does not provide claimants with an effective remedy for European Convention on Human Rights (ECHR) purposes.
Misfeasance in public office
To obtain damages, judicial review claimants have had to plead other claims, in particular the tort of misfeasance in public office. This is what Vincent Tchenguiz has done in his current dispute with the Serious Fraud Office (SFO) (not yet reported). To prevail, claimants need to prove that a public office holder acted with malice or bad faith. The evidential burden for this tort is difficult to satisfy. It is not enough for there simply to be an unlawful
