Human rights claim in relation to judicial acts does not require prior appeal
A claim for damages against the Lord Chancellor under section 9 of the Human Rights Act (HRA) 1998, in respect of judicial acts, may be brought as a free-standing claim without first appealing (or claiming judicial review of) the relevant orders, the High Court has found (MTA v Commissioner of Police for the Metropolis & Lord Chancellor  EWHC 117 (KB)).
MTA is a young man with severe global developmental delay. His mother’s landlord brought a claim for an injunction against him under the Anti-Social Behaviour, Crime and Policing Act 2014. Doubts were raised about MTA’s capacity, but the court nonetheless made and maintained an interim injunction with a power of arrest. Ultimately, MTA was found to lack capacity to conduct litigation or comply with the injunction and the injunction claim was dismissed. However, by this stage MTA had already been arrested and detained on 3 occasions under the power of arrest attached to the interim injunction.
MTA (by the Official Solicitor as his litigation friend) issued a claim for damages (1) against the police for false imprisonment and/or breach of Article 5 ECHR, on the basis that, due to his lack of capacity, the interim injunction and power of arrest were of no effect (r.21.3(4)) and so could not provide lawful justification for his detention and (2) against the Lord Chancellor under section 9 HRA 1998, on the basis that, if the interim power of arrest was valid, the county court’s decisions to grant and maintain it, despite the doubts as to his capacity, constituted a breach of his rights under Articles 5 and/or 6 ECHR.
The Lord Chancellor applied to strike out MTA’s claim against him as an abuse of process, contending a claim for damages could not be brought against him under section 9 HRA 1998 without the relevant judicial orders first having been successfully appealed or judicially reviewed.
Freedman J dismissed the application, holding that:
(1) The Court of Appeal in Mazhar v Lord Chancellor  EWCA Civ 1558 made clear that there is no hierarchy as between three remedies under section 9(1) HRA 1998 (appeal, judicial review and damages claim) and no general rule that a damages claim must follow a successful appeal or judicial review.
(2) Although in some circumstances it may be an abuse of process to bring such a claim, that was not true in the circumstances of the present case. In particular: MTA could not have appealed at the time of the relevant orders, as he lacked capacity and did not have a litigation friend; the orders were subsequently set aside and/or declared to have been of no effect; the claim involves issues of fact not well-suited to determination on appeal; the claim relates to a number of judicial orders, such that it would be necessary to bring multiple appeals; and, MTA having been found to lack capacity, the landlord would have no interest in contesting the appeals against the interim orders.
(3) Allowing the claim to proceed was not inconsistent with the Lord Chancellor’s constitutional duty to defend the independence of the judiciary, in requiring him to express a view on decisions of the independent judiciary: he would be required to do so even if the orders were first the subject of an appeal, to which he could be joined in any event.