Human rights claim in relation to judicial acts does not require prior appeal, Court of Appeal confirms
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 Court of Appeal has confirmed (MTA v Lord Chancellor [2024] EWCA Civ 965).
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 mental 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 the proceedings 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. The High Court dismissed the application (see here) and the Lord Chancellor appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, holding that:
- The claim was not an impermissible “collateral challenge” to the relevant orders, as they had already been found to be of no effect under r.21.3(4)) (judgment paras 61-66); and
- The pursuit of the claim without the orders having been appealed did not put the Lord Chancellor in a “constitutional quandary” in relation to his/her duty to uphold the independence of the judiciary (paras 67-70)
Indeed, Underhill LJ (with whom Dingemans LJ agreed) suggested that, while abuse of process is to be assessed on the facts of the particular case, “in the generality of cases I would not expect it to be an abuse of process for a claimant to bring a claim under section 9 (1) (c) [HRA 1998, in relation to a judicial act] without first having had the impugned order set aside” (para 74).
Martin Westgate KC and Daniel Clarke represented MTA, instructed by Katie Brown of TV Edwards LLP.
