Mazhar v The Lord Chancellor

Proceedings under the Human Rights Act 1998 concerning a judicial act must ordinarily be brought by appeal or, where available, judicial review. Section 9(1)(c), read with section 9(3), permits originating proceedings only for damages required by article 5(5) for unlawful detention. It does not permit a freestanding claim for a declaration that an earlier judicial order violated Convention rights.

A permitted damages claim concerning a judicial act, including an act of the High Court, may be commenced in the High Court. It is a statutory claim against the Crown, represented by the responsible Minister, rather than a claim based on vicarious liability or one against the judge personally.

The appellant, a capacitous man with severe physical disabilities, was removed from his home and detained in hospital under an urgent order made without notice under the High Court’s inherent jurisdiction. He alleged that the order violated article 5 because there was no evidence that he was of unsound mind. He settled his claim against the NHS trust and pursued a declaration against the Lord Chancellor.

The High Court dismissed the claim in [2017] EWHC 2536 (Fam), holding that judicial immunity, the absence of vicarious liability and abuse of process prevented it from proceeding. The central issue on appeal was whether the Human Rights Act 1998 allowed a freestanding High Court claim declaring an earlier High Court order unlawful, or required the order to be challenged by appeal.

1. Appeal dismissed, but permission to appeal the original order granted out of time. The appellant could not pursue an originating claim for a declaration against the Lord Chancellor. His proper course was an appeal against the order authorising his removal and detention. The High Court’s result was therefore upheld, although important parts of its reasoning were rejected.

2. Section 9 of the Human Rights Act 1998 makes specific provision for proceedings concerning judicial acts. Read as a whole and in the light of its legislative history, section 9(1)(c) operates with section 9(3). It permits originating proceedings only for damages required by article 5(5) in respect of unlawful detention. It does not authorise an originating claim for a declaration. A judicial act must otherwise be challenged by appeal or, where legally available, judicial review.

3. The statutory scheme creates no hierarchy requiring every permitted damages claim concerning a High Court judicial act to be brought on appeal. Such a claim may, and usually will, be commenced in the High Court under section 9(1)(c) and CPR rule 7.11(1). That construction avoids forcing fact-finding, disclosure and a damages claim subject to the Act’s one-year limit into an appellate procedure normally subject to a 21-day limit.

4. A claim permitted by sections 9(3)–(5) is a statutory claim against the Crown. The responsible Minister, here the Lord Chancellor, is the appropriate defendant. It is not based on the Minister’s vicarious liability for a judge, and does not infringe judicial immunity. The immunity issue did not arise directly because no relief was sought against the judge personally.

5. An instruction or decision having the substance of a judicial order is appealable even if no formal order is drawn. Where an order made without notice is challenged for failure to provide full and frank disclosure, a judge of equivalent standing may set it aside. Where the challenge alleges only an error of law, the appropriate course is an appeal.

6. The exceptional procedural history explained the delay. The declaratory route had initially been accepted, the jurisdictional objection emerged later, and the issue remained live. Since the proposed appeal had a real prospect of success, justice required permission to appeal the original order out of time. The NHS trust was to be joined to that appeal and given an opportunity to seek a stay or discharge as a party.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 1558, dismissed the appeal against the High Court’s order, although for different reasons, and granted permission to appeal out of time against the original detention order.

2. High Court, Family Division: In [2017] EWHC 2536 (Fam), dismissed the claim for a declaration concerning the earlier judicial order and declined permission to appeal that order.

3. High Court, Family Division: On 22 April 2016, made an urgent order without notice authorising the appellant’s removal from his home and detention in hospital. The detention provision was discharged on 23 May 2016, but the original order was not appealed, varied or set aside.