Charles Ayeh-Kumi v Lord Chancellor

A private law claim cannot be used to challenge judicial decisions or re-litigate issues which should have been pursued by appeal or judicial review. Claims alleging that courts acted incompatibly with Convention rights must comply with section 9 of the Human Rights Act 1998. The Constitutional Reform Act 2005 creates no privately enforceable duty requiring the Lord Chancellor or Secretary of State to reform legislation or court practice. A declaration of incompatibility under section 4 of the 1998 Act concerns public law, but the court left the procedural question open. Such declarations are exceptional and unnecessary where legislation can be interpreted compatibly, or where the alleged incompatibility is academic. The former sections 1(2)(b), 23 and 25 of the Matrimonial Causes Act 1973 were not shown to be incompatible with Convention rights.

The claimant appealed against Master McCloud’s order of 3 February 2022, which struck out his claim except insofar as it was treated as seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998. The claim arose from contested divorce proceedings and subsequent financial-remedy proceedings. It alleged that the defendants had negligently or in breach of statutory duty failed to establish an ECHR-compliant system of divorce law and practice, and challenged the compatibility of sections 1(2)(b), 23 and 25 of the Matrimonial Causes Act 1973. The defendants cross-appealed, arguing that the remaining claim was procedurally exclusive to judicial review and was bound to fail.

The claimant’s appeal was dismissed, relief against sanctions was refused, and the defendants’ appeal was allowed.

1. The Constitutional Reform Act 2005 did not create a statutory duty enforceable by individual citizens in damages requiring the defendants to ensure that family courts and practitioners complied with the rule of law or Convention rights. No relevant duty of care in negligence was owed. Breach and causation were in any event unarguable.
2. Complaints that family-court judges misapplied the Matrimonial Causes Act 1973 or acted unfairly had to be pursued by appeal. Complaints that the legislation should have been interpreted compatibly with Convention rights had to be raised in the original proceedings or on appeal under sections 3 and 6 of the Human Rights Act 1998.
3. Section 9 of the 1998 Act provided that proceedings concerning a judicial act could be brought only by exercising a right of appeal or in another prescribed forum. Damages were unavailable for a judicial act done in good faith, subject to the statutory exceptions. The relevant complaints were therefore abusive and were struck out.
4. The court also held that complaints concerning decisions leading to the divorce were out of time under section 7(5) of the 1998 Act. No extension would have been justified.
5. The court declined to decide definitively whether a standalone section 4 claim had to be brought by judicial review under the procedural exclusivity principle. The issue was unnecessary to resolve because the claim was bound to fail on its merits.
6. A declaration of incompatibility was inappropriate where the challenge was academic, where the legislation could be read compatibly under section 3, or where the alleged incompatibility concerned application in an individual case rather than the legislation intrinsically. Section 1(2)(b) of the 1973 Act was now superseded by the Divorce, Dissolution and Separation Act 2020 and was not shown to breach Articles 6, 8, 13 or 14 ECHR. Sections 23 and 25 likewise permitted Convention-compliant decisions and contained sufficient safeguards against arbitrariness.

• High Court (King’s Bench Division): On appeal from Master McCloud’s order dated 3 February 2022, the claimant’s appeal was dismissed and the defendants’ appeal was allowed.