How to bring a legal case

Legal action is when a person seeks to hold a public authority accountable if they have acted in a way contrary to the rights protected by the European Convention on Human Rights (ECHR). This can be done in a county court or tribunal, or via the method of judicial review – read our explainer on judicial review here.

Section 7 of the Human Rights Act (HRA) states that any person, non-governmental organization (NGO) or group of individuals claiming to be the victim of a breach (often called a violation) by a UK public body may bring a case. It must be an actual or threatened violation, not just theoretically possible. Companies can also bring an action as they have a ‘legal personality,’ so long as it can be shown the company itself was directly affected. A government body cannot be a victim. 

Any application must meet the Admissibility Criteria. Admissibility means whether the court will accept something as valid or not, so if a case or evidence is admissible, it means the court will accept it. To accept an application: 

• It must not be anonymous 
• It can’t be on a matter already dealt with 
• It must be compatible with Convention rights/protocols. See our guide to what is in the ECHR here. 
• The applicant has suffered significant disadvantage (they have ‘victim’ status) 

There is a practical issue of accessibility to legal advice and representation. This is because Legal Aid is extremely limited, although often available where the individual receives benefits. In reality, bringing a case often relies on solicitors and barristers who are willing to take on an issue. A comprehensive guide to getting human rights legal advice can be found on Liberty’s website, here. 

As you would be questioning whether a decision was made correctly, and your human rights accounted for, judicial review is the most common route to bring a case. It is where a judge reviews whether a decision was made lawfully, and because they start in the High Court it is possible for a judge to issue a ‘Declaration of Incompatibility’. This is where they declare that the law the public body was relying on is not compatible with the HRA, more on this later. 

Pre-action Protocols for Judicial Review 

If you believe that a decision by a public body was made wrongly due to a human rights issue (or any other reason), judicial review is the way forward. Judicial review only considers how the decision was made, so is not always the best option. If this is the route being taken then there is a protocol on how to go about doing it, this only applies in England and Wales.  

Firstly, any claim must be filed as soon as possible and always within three months of the grounds to make a claim arising (6 weeks if it involves planning permission) but before the claim is made a pre-action protocol letter should be sent to the party who you are in dispute with (the defendant – a public body). The purpose of this letter is to identify the issues and see if it’s possible to narrow them down or avoid taking it any further by coming to an agreement. Only if this is unsuccessful should a case be filed, this is because it can be a costly and stressful process that you probably want to avoid where you can! All the official information on pre-action protocols for judicial review can be found at Justice.gov, here. 

After the pre-action protocols 

If the case was not resolved then it will go to a judge. The lawfulness of the decision can be challenged for three reasons (called grounds). These are explained below. 

• The public authority did not have the power to make the decision, or if they did have the power to make the decision, perhaps they made it by considering irrelevant information. It might be that they restricted themselves through a rigid policy and didn’t consider all relevant factors. 
• The decision is irrational. This means the decision is so unreasonable that no reasonable public authority would have made it (this is sometimes called Wednesbury unreasonableness). 

• The public body has not followed fair procedures in making the decision, this includes making sure the decision is fair. 

In addition to these three grounds, the lawfulness of a decision can also be challenged using judicial review if that decision breaches human rights law. This is where a public authority has made a decision that does not uphold, or might risk, the protections everyone has under the HRA. Under the HRA, public authorities have a legal duty to respect, protect and fulfil human rights in their decision-making. If they do not do this, then they are not meeting that legal duty and their decisions can be challenged through judicial review. Please see the link to our full briefing on judicial review at the beginning of this article. 

Outcomes 

At the end of a judicial review case, if the person’s case has been successful, the judge will usually “quash” or “nullify” the original decision. This means the decision needs to be made again. However, the judge does not replace the original decision with what they think is a better decision. Instead, the decision will have to be made again, by the public authority, but this time following the right process. This means that the public authority might make the same decision again if they follow the right process (making it a lawful decision this time). The court can also give you financial compensation if you’ve suffered a loss. 

Other things the court can do include:   

• Order the public authority to do something - this is called a mandatory order 
• Order the public authority not to do something - this is called a prohibiting order. 
• A judge may also make a declaration of incompatibility.

It is also possible to bring a case just using the HRA itself. The admissibility criteria set out above must still be met, but if you are personally affected by the issue (or likely to be so) you are probably a victim and can bring the case. Any action must be taken within one year of the violation, but check to see if there are different time limits depending on what type of action you’re after. In very exceptional circumstances the court will allow cases from over a year ago, but very convincing evidence is required. 

It is important to think about which court you want to use, for example if it was something to do with your job it would likely be an Employment Tribunal you start in, or if it was a civil case you would usually start in the County Court.

Although it’s possible to bring a case solely based on an HRA infringement, it can be useful to use violation of another law and add the HRA grounds on top of it. A judge may also add the human rights issue, as because a court is a public body they must also follow the Act. Another way human rights can be brought up in a court is if while you are already involved in proceedings (a case against you) and your human rights are affected, the court/tribunal is still a public body and must keep your rights in mind – so the action can be brought about alongside. 

The remedy here will be what the court thinks is ‘just and appropriate’ but can include: 

• Order the public authority to do something - this is called a mandatory order 
• Order the public authority not to do something - this is called a prohibiting order. 
• Payment of damages (but this will usually be a very small amount) 

The court system in Scotland is different to that in England. Differences in civil justice system include Children’s Hearings, dealing with key children and young people’s issues, many touching on human rights.  

Differences in the criminal justice system include a specific process to raise “compatibility issues” which are when: 

1) A ‘public authority’ has acted unlawfully under the Human Rights Act; or  

2) An Act of the Scottish Parliament, or a provision within such an Act, is incompatible with the ECHR.  

The court must be told if you want to raise compatibility issues, as well as the Lord Advocate (just like the Attorney General, the most senior lawyer in Scotland) and anyone else involved in the case. It is possible to let them know of a compatibility issue may in the grounds of appeal. 

It is also possible for Scottish courts to ‘strike-down’ a piece of law they find to be incompatible with human rights, this means they can effectively get rid of that piece of law. Judges do not have this power in England and Wales. Otherwise, the remedies are the same as those in England, we will have a more detailed explanation on how the law differs in Scotland available soon. 

If all these options have been used up, then the next step is to go to the European Court of Human Rights directly. Remember, you must have tried all of the options to resolve your case on a UK level before you will be allowed to take it to the European Court. 

Please note: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.