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.”