Part 5: Terrorism Damages in national security proceedings Section 86: Duty to consider reduction in damages payable by the Crown
Section 86 establishes a duty on the court in such cases to determine the appropriate remedy by applying the national security factors set out therein.
	Under section 86(1), that duty arises where, in these national security proceedings, the liability of the Crown to the claimant has been established, the court is otherwise entitled to award damages against it with respect to that liability, the Crown has made an application to the court for it to consider the national security factors and the court has not refused the application.
	Those national security factors are set out in sections 86(3) and (4). Firstly, they require the court to consider whether the claimant has committed wrongdoing of a terrorist nature that has a connection to the conduct of the Crown complained of in the proceedings. Such wrongdoing is that which involves the commission of a terrorism offence or involves other terrorism-related activity.
	Secondly, where those matters have been established, the court is required to consider the extent of the wrongdoing of the claimant, its connection to the conduct of the Crown complained of, the risk of harm the Crown sought to prevent or limit and any limitations on the Crown in doing so, such as the conduct having occurred overseas or being carried out in conjunction with a third party.
	Under section 86(5), after the application of the national security factors, the court must consider whether it is appropriate to reduce the damages otherwise payable. The reduction may be to nil.
	However, section 86(6) prevents the court considering a reduction in damages it would otherwise award under section 8 of the Human Rights Act 1998.
	Section 86(7) makes it express that nothing in section 86 prevents the court from considering the national security factors of its own motion or affects any other power of the court to reduce or refuse damages as a consequence of the Claimant’s wrongdoing, their failure to mitigate any harm suffered, or their contribution to that harm, nor does it affect any other rules of law otherwise limiting the Crown’s liability.