MTA v The Lord Chancellor

The Court of Appeal dismissed the Lord Chancellor’s appeal against the refusal to strike out a claim for damages under the Human Rights Act 1998 arising from episodes of detention said to breach Article 5 of the European Convention on Human Rights. The claim alleged unlawful detention resulting from two judicial acts: the County Court injunction of 17 February 2020 (with a power of arrest) and the remand order of 19 May 2020. The Vice‑President held that CPR 21.3(4) means steps taken before a protected party has a litigation friend have no effect, and that the County Court had subsequently held the impugned orders to be of no effect because of the claimant’s lack of capacity. Because the impugned orders had already been found to have no effect, the core objection that the damages claim amounted to an illegitimate collateral challenge failed. The court rejected the existence of any blanket rule requiring a prior appeal before bringing section 9(1)(c) free‑standing proceedings, and gave obiter guidance that, in the generality of cases, such free‑standing claims will not be an abuse.

Background and parties: The claimant (a protected party, by the Official Solicitor) suffers severe mental ill‑health and was made subject to a County Court anti‑social behaviour injunction with a power of arrest on 17 February 2020. He was arrested on three occasions (18 May, 10 June and 29 June 2020) and detained overnight on each occasion; on 19 May 2020 he was remanded in custody pending consideration of his capacity in relation to committal proceedings. The injunction and remand gave rise to a claim issued 16 February 2021 seeking damages under the Human Rights Act 1998 against the Metropolitan Police Commissioner and the Lord Chancellor.

Nature of the claim: The claimant sought damages under sections 7 and 8 of the Human Rights Act for detention said to be incompatible with Article 5. Section 9 of the 1998 Act governs claims in respect of judicial acts and identifies the Lord Chancellor as the appropriate defendant for such damages.

Procedural posture: The Lord Chancellor applied to strike out the claim on abuse of process grounds, arguing (in primary and alternative forms) that a claimant must first appeal any impugned judicial order before bringing free‑standing damages proceedings under section 9(1)(c). Freedman J dismissed that application ([2023] EWHC 117 (KB)). The Lord Chancellor appealed; permission granted by Coulson LJ.

Issues framed:

• Whether there is a blanket rule that it is an abuse of process to bring free‑standing section 9(1)(c) proceedings without first appealing an impugned judicial order.
• Whether, on the facts of this case, it was an abuse to bring the free‑standing proceedings without prior appeal.
• Interpretation and application of CPR 21.3(4) (effect of steps taken before a protected party has a litigation friend) and the relationship between section 9 of the HRA and established appellate/JR routes (including the principles discussed in Mazhar v Lord Chancellor and LL v Lord Chancellor).

Court’s reasoning: The court began with the statutory and procedural background: the Anti‑Social Behaviour, Crime and Policing Act 2014 (injunctions and powers of arrest), CPR Part 65 and Part 21, the Mental Capacity Act 2005 presumption of capacity, and the structure of sections 6–9 of the Human Rights Act. The Vice‑President accepted that CPR 21.3(4) means that steps taken before a protected party has a litigation friend have no effect. He reviewed Mazhar v Lord Chancellor and related authorities and concluded that Mazhar did not establish a rule that free‑standing section 9(1)(c) claims are always an abuse where an appeal could have been brought; Mazhar only acknowledged that in some cases it "may be" an abuse.

The decisive factual point was that the County Court itself had found that the impugned orders were of no effect because the claimant lacked capacity (Judge Hellman’s 9 June 2020 dismissal of committal proceedings and DJ Swan’s 30 June 2020 setting aside of the injunction). That outcome meant there was no improper collateral challenge in pursuing damages in the High Court: the same court had already determined the orders to be of no effect. The court therefore rejected the Lord Chancellor’s contention that the proceedings were an abuse and rejected the existence of any blanket prior‑appeal rule. The Vice‑President declined to lay down a comprehensive rule about when free‑standing proceedings without prior appeal will amount to abuse, but gave obiter guidance that in the generality of cases he would not expect such proceedings to be abusive because of public‑interest and practical considerations.

Appeal dismissed. The Court held that because the County Court had itself found the impugned orders to be of no effect for lack of capacity, the Claimant’s free‑standing claim for damages under the Human Rights Act was not an illegitimate collateral challenge and the present proceedings did not constitute an abuse. The court also refused to recognise any blanket rule that section 9(1)(c) proceedings must be preceded by an appeal, and offered obiter guidance that, in most cases, bringing free‑standing section 9(1)(c) proceedings without a prior appeal will not amount to abuse.

Appeal from the decision of Freedman J in the High Court, King’s Bench Division ([2023] EWHC 117 (KB)), in which the Lord Chancellor’s application to strike out the claim was dismissed. Permission to appeal was granted by Coulson LJ. This Court (Underhill LJ, Lewison LJ and Dingemans LJ) dismissed the Lord Chancellor’s appeal ([2024] EWCA Civ 965).