Vindicatory Approach to the Award of Constitutional and Public Law Damages: Contemporary Commonwealth Developments

Abstract

In order to provide the missing link in the constitutional damages formulation by Lord Diplock in Maharaj v Attorney General of Trinidad and Tobago (No 2) 1979 AC 385 and its attendant practical difficulties of quantifying what the plaintiff will receive in money terms, the Privy Council recently came up with the vindicatory approach in Attorney General of Trinidad and Tobago v Ramanoop 2005 2 WLR 1324. The background to the development of this approach is unarguably traceable to the earlier ‘right-centred/value-laden’ approach of New Zealand Court of Appeal in the interpretation and application of the New Zealand Bill of Rights Act and the criticisms of the Diplock formula by the Court of Appeal of Trinidad and Tobago. Although the vindicatory approach informs the award of constitutional damages by the Supreme Court of Canada and the Constitutional Court of South Africa in the interpretation of the Canadian Charter and the South African Bill of Rights respectively, the Supreme Court of the United Kingdom has denied its applicability in English law in the case of Lumba v Secretary of State for the Home Department 2011 2 WLR 671 (UKSC). This article maintains that the attitude of the UK Supreme Court smacks of its predecessor’s approach to the award of public law damages in the English jurisdiction generally, contrary to the developments elsewhere in the Commonwealth.