Mazhar v The Lord Chancellor

A court of co-ordinate jurisdiction cannot grant declaratory relief declaring unlawful a judicial act of a High Court judge. Sections 7 to 9 of the Human Rights Act 1998, together with CPR rule 7.11, do not abrogate judicial immunity or create such a power by necessary implication. The statutory scheme provides a limited damages remedy for a breach of Convention article 5(5). Where the judicial act is that of a High Court judge, the appropriate forum for that remedy is the Court of Appeal. A collateral claim before another High Court judge is an abuse of process where the alleged unlawfulness could be raised by return hearing and appeal.

The claimant challenged an urgent without-notice order made by Mostyn J under the inherent jurisdiction. The order authorised police and medical professionals to remove him from his home, convey him to hospital and deprive him of his liberty. He alleged breaches of articles 5, 6 and 8 of the Convention and sought a declaration against the Lord Chancellor. His damages claim against the NHS Trust had been settled, and he no longer pursued damages against the Lord Chancellor.

The Lord Chancellor disputed the availability of declaratory relief, relying on statutory construction, judicial immunity, lack of vicarious liability and abuse of process. The central issue was whether the statutory scheme permitted a collateral claim before a judge of co-ordinate jurisdiction concerning the lawfulness of another High Court judge’s order.

1. Claim dismissed. The court declined to determine whether the order breached articles 5, 6 or 8. Those substantive and procedural issues were matters for an appropriate appellate court.
2. Sections 7 to 9 of the Human Rights Act 1998 did not, read with CPR rule 7.11, confer a power to grant a declaration against the Crown in respect of a judicial act. Section 8 was permissive rather than creative. A power overriding the constitutional principle of judicial immunity could not be implied without express language or necessary implication.
3. Section 9 created a limited free-standing remedy in damages to the extent required by article 5(5). It did not provide declaratory relief, nor did it otherwise abrogate judicial immunity. For an order made by a High Court judge, the remedy had to be pursued in the Court of Appeal rather than before a court of co-ordinate jurisdiction.
4. The Lord Chancellor was not vicariously liable for the judicial act. Section 9(4) provided for joinder of the relevant Minister only in connection with an article 5(5) damages claim. It did not make the Minister liable for other Convention remedies.
5. The collateral proceedings were also abusive. The claimant could have sought an inter partes return hearing, discharge or setting aside of the order, and permission to appeal. A High Court judge could not adjudicate on the lawfulness of another High Court judge’s determination.
6. The court permitted amendment of the Lord Chancellor’s pleadings under CPR rule 17.1(2)(b), but refused to review or set aside the order and declined to grant permission to appeal. Any application for permission had to be made to the Court of Appeal.

Not stated in the judgment. The judgment records that the challenged order had not been appealed and that any challenge to it should be pursued in the Court of Appeal.