Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Appellate history
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.
Appeal route
- This judgment [2017] EWHC 2536 (Fam) High Court (Family Division)
- Appealed to[2019] EWCA Civ 1558Outcomeappeal dismissed; permission granted to appeal out of time against the order of 22 april 2016
Key cases cited
24 authorities cited.
- R (on the application of Faulkner) v Secretary of State for Justice and another [2013] UKSC 23
- Autologic Holdings plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)BNP Paribas UK Holdings Limited and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)The Future Network plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)Perkins Engines Company Limited and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)HJ Heinz Company Inc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)British Telecommunications plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)(Conjoined Appeals) [2005] UKHL 54
- Regina v Special Commissioner and another, Ex p Morgan Grenfell & Co Ltd [2002] UKHL 21
- Arthur JS Hall & Co v Simons (Barratt v Woolf Seddon, Cockbone v Atkinson Dacre & Slack, Harris v Scholfield Roberts & Hill) [2002] 1 AC 615
- B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428
- R v Secretary of State for the Home Department, Ex parte Simms (R v Governor of Whitemoor Prison, Ex parte Main) [1999] UKHL 33
- Pepper v Hart [1993] AC 593
- In re Racal Communications Ltd (In re a Company (No 00996 of 1979), In re A) [1981] AC 374
- LL v The Lord Chancellor [2017] EWCA Civ 237
- Webster v Lord Chancellor [2015] EWCA Civ 742
- Ketley v Brent & Anor [2012] EWCA Civ 324
- Animatrix Ltd & Ors v O'Kelly [2008] EWCA Civ 1415
- Hinds v Liverpool County Court & Ors [2008] EWHC 665 (QB)
- Re SA (Vulnerable adult with capacity: marriage) [2005] EWHC 2942 (Fam)
- FM v Singer [2004] EWHC 793 (QB)
- KB & Ors, R (on the application of) v Mental Health Review Tribunal & Anor [2003] EWHC 193 (Admin)
- Nelles v Regina in right of Ontario [1989] 2 SCR 170
- In re McC (A Minor) (McC v Mullan) [1985] AC 528
- Pulliam, Magistrate for the County of Culpeper, Virginia v Allen et al 466 US 522 (1984)
- O’Reilly v Mackman (Derbyshire v Mackman, Dougan v Mackman, Millbanks v Home Office) [1982] 3 WLR 604
- Sirros v Moore [1975] QB 118
- Wallersteiner v Moir (Moir v Wallersteiner) [1974] 1 WLR 991
- Garnett v Ferrand (1867) 6 B&C 611
- Wellesley v Duke of Beaufort (1827) 2 Russ 1
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Cases citing this case
3 later cases · 2 positive · 1 negative
Most senior citing decisions:
- MTA v The Lord Chancellor [2024] EWCA Civ 965 disapproved
- Power v Vidal [2019] EWHC 2101 (Fam) approved
- Woolcock, R (On the Application Of) v The Secretary of State for Communities and Local Government & Ors [2018] EWHC 17 (Admin) followed
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