Skip to Content

What remedy might you seek?

It is best to adopt a flexible approach to remedies, adapted to the issue and the context in which the case is brought forward.

A mere declaration or declaratory order might be sufficient and it may be unwise to scare the court away from a finding of a violation by demanding large or complex damage awards or judicially imposed policy changes.

While a declaration carries no explicit order for the government to take an action or desist
from an action, it may have immediate and resource implications. For example, if a court declares a law inconsistent with a social right, then the law, ordinarily, no longer applies

Other times, it will be better to give the government the responsibility of designing the appropriate remedy and reporting back to the court after a period of time with its plan for compliance. In other cases, however, it will be important to ensure that victims are properly compensated for violations of the rights, and that very precise orders for governmental compliance are set out.

Mandatory injunctive relief may be employed by the courts to order a government to either desist from a certain action or to take a particular action.

Courts, for fear of losing their authority, may be reluctant to make orders against the executive branch of governments if they believe their judgments will go unimplemented.
In which case, would settlement out of court be sufficient in your case?

Implementation is often the key - ensuring court supervision of court orders can be critical in guaranteeing their effectiveness. Decisions in segregation cases in the US have taken 20 years to implement and have required constant recourse to the courts in the follow-up phase.
Careful phrasing and the inclusion of a good level of detail in an order may reduce the likelihood of non-implementation.

Furthermore, introducing a reporting requirement, whereby the State must report back on what it has done to give effect to the court’s decision, allows for the possibility of ongoing dialogue between the court and the State and enables the State to seek clarification or explanation where it is uncertain about its constitutional obligations. It is also open to courts to structure an order so as to delegate the monitoring function to an appropriate body that may report back to the court