Mazhar v The Lord Chancellor

Factual and Procedural Background

This opinion concerns an appeal against an order dated 12 October 2017 of a single judge of the High Court ("the SPT"), who dismissed the Appellant's claim for a declaration that an earlier order made by a High Court judge ("Mostyn J's order") authorising the Appellant's removal to, and detention in, a hospital was an unlawful violation of his rights under Article 5 of the European Convention on Human Rights ("ECHR"). The earlier order was made under the inherent jurisdiction of the High Court.

The Appellant suffers from severe physical disabilities requiring 24-hour care, including ventilation, and has mental capacity regarding care decisions. On 22 April 2016, a healthcare NHS Trust made an urgent out-of-hours telephone application for an order authorising the use of reasonable force to remove the Appellant from his home to a hospital and detain him for medical care, citing lack of carers and no family agreement to meet his care needs. The order was made by Mostyn J and included provisions authorising police and medical professionals to enter the property and remove the Appellant to hospital.

Subsequently, on 23 May 2016, a hearing was held where the Appellant consented to remain in hospital, leading to the discharge of the detention provision of Mostyn J's order. The Appellant contended that the original order was based on misrepresentations and lacked evidence that he was "of unsound mind" under Article 5(1)(e) ECHR. He initiated proceedings against the NHS Trust and the Lord Chancellor, seeking declarations of breaches of Articles 5, 6, and/or 8 of the ECHR and damages. The claim against the NHS Trust was settled, leaving a declaration claim against the Lord Chancellor.

The original order by Mostyn J has not been appealed, varied, or set aside except for the discharged detention provision. The Appellant did not appeal initially due to the Lord Chancellor's position on judicial immunity. The present appeal challenges the dismissal of the claim for declaration against the Lord Chancellor.

Legal Issues Presented

1. Whether the Human Rights Act 1998 ("HRA") permits a person to bring a claim in the High Court for a declaration that an earlier order of that Court was an unlawful violation of Convention rights, or whether the claimant's only remedy is an appeal against that order.
2. Whether the principle of judicial immunity bars claims for declarations against the Lord Chancellor in respect of judicial acts.
3. Whether the Lord Chancellor can be held liable for judicial acts of a High Court judge.
4. Whether the claim constitutes an abuse of process.
5. Whether permission to appeal out of time against Mostyn J's order should be granted.

Arguments of the Parties

Appellant's Arguments

• The principle of judicial immunity protects judges from personal liability for damages but does not bar a claim for a declaration against the Lord Chancellor, who is the proper defendant rather than the judge personally.
• A declaration that the order was unlawful is not equivalent to a damages claim against a judge and does not infringe judicial immunity.
• Judicial immunity is at least abrogated to the extent required to permit the claim because a declaration is a precondition to damages, and the Appellant could seek a nominal damages claim as an alternative.
• Section 9 of the HRA does not mandate that an appeal is the only mechanism for bringing a claim in respect of judicial acts; the claimant may elect between appeal, judicial review, or other prescribed forums.
• Requiring an appeal exclusively would impose unfair procedural disadvantages, including a shorter time limit and inappropriate appellate procedures for first-instance fact-finding.
• If the claim must be brought by appeal, permission to appeal out of time should be granted due to the parties' prior conduct and exceptional circumstances.
• The Lord Chancellor should be treated as the appropriate defendant for claims against the state in respect of judicial acts, following principles analogous to those in Maharaj v Attorney General of Trinidad and Tobago.

Lord Chancellor's Arguments

• The principle of judicial immunity applies and has not been abrogated by the HRA, barring claims for declarations against the Lord Chancellor in respect of judicial acts.
• The Appellant cannot renew a nominal damages claim because of settlement with the NHS Trust and to avoid double recovery.
• Section 9(1) of the HRA limits proceedings in respect of judicial acts to appeal, judicial review, or prescribed forums, and the proper forum for claims arising from High Court orders is appeal.
• The claim for a declaration is barred as an abuse of process because the appropriate remedy was an appeal against Mostyn J's order.
• The Lord Chancellor is not vicariously liable for judicial acts and the statutory cause of action against the Crown is limited to damages claims, not declarations.
• Permission to appeal out of time should not be granted as it would prejudice the NHS Trust, which settled the claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the central legal question as the correct interpretation of the Human Rights Act 1998 (HRA), particularly section 9, which governs proceedings in respect of judicial acts. The court acknowledged the general duty imposed on public authorities, including courts, to act compatibly with Convention rights under section 6 of the HRA, and the right of victims to bring proceedings under section 7.

Section 9(1) of the HRA restricts proceedings in respect of judicial acts to three routes: appeal, judicial review, or such other forum as prescribed by rules. The court noted that the original Bill lacked the third route, which was added later to accommodate claims for damages under Article 5(5) of the ECHR.

The court examined the legislative history and concluded that the statutory scheme contemplates that claims for damages for unlawful judicial acts are to be brought against the Crown (represented by the relevant Minister, here the Lord Chancellor) and only by way of appeal, judicial review, or prescribed rules, but claims for declarations against the Crown in respect of judicial acts are not provided for by the HRA.

Judicial immunity protects judges personally from claims for damages or declarations, but the court emphasized that the Appellant does not seek to sue the judge personally but the Lord Chancellor as the appropriate defendant for claims against the state.

The court rejected the SPT's view that claims for damages must be brought only on appeal, holding instead that the High Court is the appropriate forum for claims under section 9(1)(c) and CPR rule 7.11, including for judicial acts of the High Court. However, the court held that claims for declarations in respect of judicial acts cannot be brought by originating process but must be pursued by appeal or judicial review.

The court considered and distinguished relevant authorities, including Forrester Ketley, O'Reilly v Mackman, Webster v Lord Chancellor, and LL v Lord Chancellor, clarifying that none support the proposition that declarations can be sought by originating claim against the Lord Chancellor for judicial acts.

In relation to the principle of judicial immunity, the court agreed it remains intact and is not abrogated by the HRA, but this principle does not bar claims against the Lord Chancellor as the Crown for damages, nor does it preclude claims for damages being brought in the High Court under the HRA.

The court found that the claim for a declaration is barred because the HRA does not provide jurisdiction for such a claim against the Lord Chancellor in respect of judicial acts by originating process. The proper remedy for challenging the original order is by appeal.

Regarding permission to appeal out of time against Mostyn J's order, the court granted it, noting exceptional circumstances including the late raising of procedural objections by the Lord Chancellor, the parties' conduct, and the interests of justice. The court also held that the Lord Chancellor remains a proper party to the appeal given the ongoing damages claim and his interest in the outcome.

Holding and Implications

The court DISMISSED the appeal against the order of the SPT dismissing the claim for a declaration against the Lord Chancellor, but for reasons different from those given by the SPT.

The court GRANTED permission to appeal out of time against Mostyn J's order dated 22 April 2016.

The direct effect of this decision is that the Appellant cannot bring a claim for a declaration that a judicial act was unlawful by originating process against the Lord Chancellor under the HRA; the proper remedy is to appeal the judicial order. The court confirmed that claims for damages under section 9(3) of the HRA may be brought in the High Court against the Lord Chancellor, but declarations in respect of judicial acts are not provided for by the statute.

No new precedent was established beyond the interpretation of the HRA's procedural provisions and the confirmation of existing principles regarding judicial immunity and the appropriate forum for claims against judicial acts.