Begraj & Anor v Secretary of State for Justice

Judicial immunity under section 9(3) of the Human Rights Act 1998 has a broad scope. A judicial act is not confined to an act capable of appeal or judicial review. It includes acts done in the bona fide exercise of judicial office, and acts done on a judge’s instructions or behalf.

Where an apparently biased tribunal recuses itself so that the underlying dispute can be determined by an impartial tribunal, the potential Article 6 defect may be remedied without creating an entitlement to damages. A claim for damages which requires the court to reconsider matters determined by an appellate tribunal may also constitute an impermissible collateral attack.

The appellants appealed against an order striking out their claim for damages against the Secretary of State under the Human Rights Act 1998. They alleged that an Employment Judge’s meeting with police officers caused an appearance of bias and breached Article 6 by depriving them of an impartial tribunal.

The Employment Tribunal recused itself after the meeting, and the Employment Appeal Tribunal dismissed the appellants’ appeal against that decision: [2014] ICR 1020. The District Judge struck out the damages claim, holding that the complaint concerned a judicial act, that the alleged Article 6 issue had already been determined, and that the claim disclosed no reasonable grounds and was an abuse of process. The central issues were the scope of judicial immunity and whether the claim was a collateral attack on the EAT’s decision.

1. Appeal dismissed. The District Judge was entitled to strike out the claim, notwithstanding the immaterial error in holding that section 2(5) of the Crown Proceedings Act 1947 applied.
2. Section 9(3) of the Human Rights Act 1998 provides immunity from damages in proceedings concerning a judicial act done in good faith. Its scope must be given a broad interpretation. The concept is not limited to acts or decisions which are appealable or subject to judicial review.
3. The approach in Sirros v Moore [1975] 1 QB 118 establishes that judicial immunity extends to acts done in the bona fide exercise of judicial office where the judge believes, even mistakenly, that he or she has jurisdiction. The statutory definition also includes an act done on the instructions or on behalf of a judge.
4. There was no basis for reading section 9(3) down to secure an effective remedy. Article 13 had not been incorporated into domestic law by section 1(1)(a) of the Act. The proposed interpretation would amount to impermissible amendment rather than interpretation.
5. In any event, the appellants had suffered no breach of Article 6. The Employment Tribunal’s recusal enabled the civil rights and obligations in the employment proceedings to be determined by an impartial tribunal. The reasoning in In re Medicaments and Related Classes of Goods (No 4) [2002] 1 WLR 269 supported the conclusion that a potential defect may be remedied by recusal or a fresh hearing, so that no damages claim arises.
6. The claim was also a collateral attack on the EAT’s decision. The EAT had considered Article 6 and the consequences of the recusal. Determining the damages claim would necessarily require reconsideration of that decision.

• High Court (Queen’s Bench Division): Appeal against the District Judge’s order dated 13 October 2014 dismissed. The strike-out of the claim was upheld.
• Employment Appeal Tribunal: The appellants’ appeal against the Employment Tribunal’s recusal decision was dismissed on 17 June 2014: [2014] ICR 1020.
• Employment Tribunal: The tribunal recused itself on 5 February 2013 after finding that the test for apparent bias was met.