MTA (a protected party, by his litigation friend, the Official Solicitor) v The Commissioner of Police of the Metropolis & Anor

A claim for damages under section 9 of the Human Rights Act 1998 concerning a judicial act is not subject to a blanket requirement that the underlying order first be challenged by appeal or judicial review. Such a claim may be brought by originating process where appropriate, although the court must guard against collateral attack, re-litigation, inconsistent decisions, harassment and oppression.

Whether the claim is abusive is fact-sensitive and requires a broad merits-based assessment. Strike-out for abuse is appropriate only where the abuse is clear and obvious. Where later orders have substantially addressed the underlying defect, including incapacity, an appeal may be unnecessary and procedurally cumbersome. The claim was therefore allowed to proceed.

The claimant, a protected party, brought proceedings against the Commissioner of Police and the Lord Chancellor. He alleged that injunction and committal-related judicial acts breached Articles 5 and 6 of the ECHR and sought damages under sections 7 and 9 of the Human Rights Act 1998.

The Lord Chancellor applied under CPR r 3.4(2)(b) to strike out the claim as an abuse of process. He argued that the claimant should first have appealed the County Court orders or sought judicial review. By the time of the application, County Court decisions had found that the claimant lacked litigation and injunction capacity, had set aside the injunction and power of arrest, and had dismissed the underlying claim. The central issue was whether proceeding with the damages claim without a prior appeal was abusive.

1. Application dismissed. The claim for damages was not struck out.
2. Sections 9(1)(c) and 9(3) of the Human Rights Act 1998 permit a free-standing claim for damages concerning a judicial act in appropriate circumstances. Mazhar v Lord Chancellor (No.1) [2021] Fam 103 did not establish a blanket rule requiring a prior appeal or judicial review.
3. The reference in Mazhar v Lord Chancellor (No.1) [2021] Fam 103 to an appeal being the usual route did not justify reading section 9(1)(c) as parasitic on a successful appeal. The Court of Appeal had expressly recognised that a damages claim could ordinarily be brought by originating process in the High Court.
4. Abuse of process requires a fact-sensitive, broad merits-based assessment. The court must protect against collateral challenge, re-litigation, inconsistent judgments, harassment and oppression, but need not define the boundaries exhaustively. Strike-out is a discretionary remedy and should be used only where abuse is clear and obvious.
5. On the information available, the County Court findings concerning the claimant’s litigation and injunction capacity meant that a prior appeal was unnecessary and cumbersome. The damages claim did not create a material risk of inconsistent decisions or affront to the administration of justice. The Lord Chancellor’s constitutional duties under Part 1 of the Constitutional Reform Act 2005 did not prevent him from defending the claim or justify striking it out.

First-instance decision on an application to strike out the claim as an abuse of process. The judgment discusses the Court of Appeal’s decision in Mazhar v Lord Chancellor (No.1) [2021] Fam 103 and its summary in Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377, [2021] 1 WLR 1207.