MTA v The Lord Chancellor

A free-standing claim for damages for unlawful detention under section 9 of the Human Rights Act 1998 is not subject to a blanket requirement that the impugned judicial order first be overturned on appeal. Where a competent court has already held the order to be of no effect, a damages claim does not constitute an impermissible collateral challenge.

Whether proceedings are abusive remains a fact-sensitive, merits-based question. Ordinarily, after release from detention, a claimant need not pursue an appeal solely to establish a procedural gateway to a damages claim.

The claimant, a protected party with severe mental ill-health, was made subject to an anti-social behaviour injunction with a power of arrest. He was arrested on three occasions for suspected breach and was remanded in custody following the first arrest.

The County Court subsequently found that he lacked capacity. It dismissed the committal proceedings, released him, and set aside the injunction as having no effect under the Civil Procedure Rules 1998. He then brought a damages claim for unlawful detention against the Lord Chancellor. The Lord Chancellor applied to strike out that claim as an abuse because the orders had not been appealed. Freedman J dismissed the application: [2023] EWHC 117 (KB).

1. Appeal dismissed. The County Court had already held, in the exercise of its relevant jurisdiction, that both orders which caused the claimant’s detention were of no effect because he lacked capacity. A damages claim inviting the High Court to determine whether those judicial acts also contravened article 5 was therefore not an impermissible collateral challenge.

2. Rule 21.3(4) of the Civil Procedure Rules 1998 means that a step taken before a protected party has a litigation friend has no effect unless the court orders otherwise. That conclusion was consistent with the later County Court orders and with the fact that the impugned orders had nevertheless been acted upon while they remained extant.

3. Mazhar v Lord Chancellor did not establish a statutory hierarchy requiring an appeal before a damages claim. It confirms that a free-standing claim under section 9(1)(c), read with section 9(3), of the Human Rights Act 1998 is the usual route for a claim for damages for unlawful detention. Its observation that such a claim may be abusive where an order could and ought to have been appealed was not an absolute rule.

4. The Lord Chancellor’s asserted constitutional difficulty was unreal. In defending or settling a damages claim under section 9(3), the Lord Chancellor acts as the statutory defendant in relation to alleged Convention-incompatible judicial acts. A properly advised settlement does not alter the judicial order and does not undermine judicial independence.

5. Obiter, abuse of process cannot be reduced to a hard-and-fast rule. It requires a broad, merits-based assessment. In the ordinary post-release case, requiring an appeal merely as a gateway to a damages claim would impose an unjustified procedural burden and may add little of value to the determination of the damages claim.

• Court of Appeal (Civil Division): Dismissed the Lord Chancellor’s appeal and upheld the refusal to strike out the damages claim.
• High Court (King’s Bench Division): Freedman J dismissed the Lord Chancellor’s strike-out application: [2023] EWHC 117 (KB).