AJAYI V ABU & ANOTHER  EWHC 3098 (QB);  IRLR 1028
A victim was awarded over a quarter of a million pounds in damages from her trafficker, in one of the first cases of its kind.
The claimant came from a poor rural environment in West Africa. She was trafficked into the United Kingdom and held in a private household for nearly 10 years. She was made to work long hours, assaulted and paid less than £25 a week. ATLEU assisted her in bringing a claim for compensation against her traffickers.
The case is likely to be highly significant for other victims of trafficking. It illustrates the strengths of the High Court as a forum for victims seeking compensation.
National Minimum Wage in the High Court
The sum awarded, £246,757.99 (plus interest) is one of the highest ever awards to a victim in this country. It included a total of £129,475.95 for failure to pay the national minimum wage for nearly 10 years.
This illustrates that a claim for the national minimum wage (which usually forms the bulk of compensation for a victim of trafficking) works as effectively in the High Court as it does in the Employment Tribunal. Because a right to the national minimum wage is implied by statute into every contract of employment, the claimant could bring a claim for breach of contract - the right to the national minimum wage - in the High Court.
Other High Court remedies
The case also shows that the High Court has other very useful remedies for victims of trafficking. In the Employment Tribunal compensation for injuries of feelings or injury to health can only be recovered if a victim is subjected to mistreatment on the grounds of a discriminatory characteristic (such as race or sex or religion). This is not required in the High Court - it is sufficient that the victim has been subjected to "harassment" as defined in the Protection from Harassment Act 1997. The width of “harassment” under the PHA 1997 is easily broad enough to encompass most trafficking abuse.
The court awarded the claimant £39,000 for harassment, including psychiatric injury. This sum would be at the higher end of sums awarded in the Employment Tribunal in such circumstances.
The court's approach to time limits was ground-breaking. In the High Court in most breach of contract claims there is an absolute bar on recovery for damages suffered more than 6 years before the claim was issued. Unlike in the Employment Tribunal there is no general discretion for the courts to dis-apply the time limit.
However, it was successfully argued in this case that the time limit should not apply because the victim had been deceived by her traffickers. Accordingly, the court awarded the claimant compensation for the full 10 year period of her trafficking. This is likely to be a very useful precedent for other victims of trafficking because deception is such a common issue.
This is particularly helpful when compared to the situation in the Employment Tribunal. Since the bringing into force of the 2014 Limitation Regulations, the Tribunal has power to award no more than 2 years national minimum wage back pay. Unless and until these Regulations are successfully challenged, the High Court’s jurisdiction is much wider. The Court has jurisdiction to consider 6 years of losses (starting from the beginning of the trafficking) and if, as in this case, deception can be established, this 6 year limitation can be dis-applied.
Special measures to protect victims
The judgment is also useful concerning the adoption of special measures to protect a victim in a court room. This is one area in which the High Court is perhaps less developed than the Employment Tribunal.
The right of victims to compensation in clear terms
The judgment starts with a clear statement of principle of the rights of victims of trafficking to obtain compensation from their traffickers, as a result of the Council of Europe Anti-Trafficking Convention and the Human Rights Convention. As the Court says straightforwardly and in terms at paragraph 3, "If the Court finds that the Claimant is a victim of trafficking, she is entitled to compensation."
This is likely to be used in many different contexts by lawyers seeking to persuade courts and tribunals to interpret, and if necessary, dis-apply any domestic law which might prevent a victim from obtaining a remedy. Considering the barriers too often in the path of victims seeking compensation, this statement, derived from the Supreme Court decision in Hounga v Allen and Another  UKSC 47 is both welcome and useful.