Atracci´ on gravitacional y mareas

We noted in section 3.1.3 that only a small proportion of judgments is ‘reported’ (published) or transcribed. NICCY notes that the fact that lower courts and tribunals (such as the tribunal that deals with special educational needs and disability) do not issue written judgments is a ‘very real, practical problem’: not only does it limit access to stories, but also prevents the Commissioner from building a bank of precedents and breaches, putting it at a disadvantage compared with solicitors acting for the Education and Library Boards in Northern Ireland as they are involved in all cases.236 The secrecy surrounding decisions of family courts and the Court of Protection in England and Wales constitutes a similar barrier to accessing stories; however, this situation is likely to change with the advent of greater transparency following revised guidance which took effect in February 2014 (see section 3.1.3).

The absence of recorded decisions from lower instance courts and tribunals is a significant but not insurmountable barrier to capturing human rights stories. Adam Wagner, a barrister and editor of the UK Human Rights blog, notes that for

unreported decisions, a solicitor will often have a note of the proceedings from the

233

Interview with Patricia Lewsley-Mooney, Northern Ireland Commissioner for Children and Young People, and Colette McIlvanna, Senior Legal and Investigation Officer, 19 December 2013.

234

ZH (a protected party by GH, his litigation friend) and the Commissioner of Police for the

Metropolis, Liberty (intervener) Equality and Human Rights Commission (intervener), [2013]

EWCA Civ 69.

235

http://www.equalityhumanrights.com/news/2013/february/court-of-appeal-condemns-the- treatment-of-an-autistic-boy-by-the-police/.

236

Interview with Patricia Lewsley-Mooney, Northern Ireland Commissioner for Children and Young People, and Colette McIlvanna, Senior Legal and Investigation Officer, 19 December 2013.

72 barrister present or may be able to facilitate contact with the claimant.237 However, ‘It would involve quite a bit of work to find those very practical, “down on the ground” cases’.

Even more elusive are stories that emanate from the very large proportion of claims that are settled in the early stages. This may be at the earliest stage of the ‘letter before claim’, which is part of the ‘pre-action protocol’ that all claimants are expected to follow in order to establish whether litigation can be avoided. Or, if the claimant has grounds to start a judicial review, it may be at the next stage of a ‘letter before action’. Cases may also be settled or withdrawn either before or after the ‘permission stage’, when a judge decides whether the claimant should be granted permission to proceed to a full judicial review hearing. Research indicates that a high proportion of judicial review claims settle in favour of the claimant, suggesting that the majority of cases has substantial merit.238 Adam Slawson, a solicitor who specialises in public law including health and social care and migrant and asylum support, estimated that some 90 per cent of his firm’s cases are resolved in some way before court:

Local authorities rarely risk litigation if [a claim is] compelling. Usually only the borderline cases end up in court.239

Adam Wagner agrees that from the perspective of human rights stories,

Cases which settle early could be among the most attractive – often the public authority will hold up its hands and admit wrongdoing. The ones that come to trial will often be the ones which are more complex or where there has been unattractive behaviour on both sides.

Adam Slawson describes how the HRA exerts traction on local authority decision- making in such circumstances:

237

Interview with Adam Wagner, 1 Crown Office Row and UK Human Rights Blog, 14 January 2014.

238

In a nine month sample of 22 non-immigration cases that reached settlement after permission had been granted, only five settlements did not favour the claimant. Of 54 cases that settled after proceedings were issued and before permission was granted, 46 settled on the basis of a review or reconsideration of the decision under challenge, or with some other substantive benefit to the claimant. See V. Bondy and M. Sunkin (2009) The Dynamics of

Judicial Review Litigation: The resolution of public law challenges before final hearing

(London: Public Law Project), p. 39.

239

73 In many areas of public law where an authority has discretion, the HRA is often pivotal in arguing that the local authority must act; in other words, you use the Act to change it into a duty. This is often how letters before claim are framed: ‘You have the option to act or not act but if you don’t you will be in breach of [the HRA]’.

Other interviewees agreed that stories concerning cases settled early can be just as persuasive as those based on judgments; the key question was whether the

claimant’s personal experience could be captured since, as one participant noted, ‘Without a name and a face, it’s not a real story for the purposes of swaying a sceptical public’. The vast majority of cases that are settled or resolved early do not reach the public domain. The exceptions are cases in which the events underlying the claim are high-profile; however, as in the case of the Stafford Hospital claimants, the human rights dimension of the out-of-court settlement may be obscured in media coverage.