Lord Chancellor liable for damages for “gross and obvious” errors in committal


On 10 April 2017, the Court of Appeal confirmed that a series of errors by a committing judge should be considered so “gross and obvious” to render an individual’s detention unlawful for the purposes of recovery of damages pursuant to Article 5(5) and the Human Rights Act 1998.


Giving judgment in LL v Lord Chancellor [2017] EWCA Civ 237, the Court of Appeal clarified the principles to be applied in considering damages for unlawful detention.  While not disturbing the principles of judicial immunity, the Human Rights Act 1998 provides for damages to be recoverable when any detention is unlawful for the purposes of Article 5(5) ECHR.  Such illegality can include where errors leading to the detention are so “gross and obvious” that the detention is unlawful from the outset (see [88]). 


In this case, there had been serious procedural errors and significant doubt over the power of the judge to commit in the circumstances.  These cumulative errors were interrelated and sufficiently serious to be considered so “gross and obvious” as to be unlawful for the purposes of recovery (see [104] –[112]).  Overturning the decision in the High Court that damages would not be recoverable, the Court of Appeal stressed the difficult position in which judges considering committal are often placed and that “gross and obvious” errors attracting damages would continue to be rare (see [9], [118]-[119], [121]).


LL was represented by Jamie Burton and Angela Patrick, instructed by Hodge, Jones and Allen.

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