The claimant, who had learning difficulties, was arrested under the Anti-Social Behaviour, Crime and Policing Act 2014 for breach of injunction orders made in County Court proceedings brought against him by his landlord. The injunctions and power of arrest were subsequently deemed to be of no legal effect and the relevant orders were set aside due to the claimant’s incapacity. The claimant brought a CPR Pt 7 claim for damages against the second defendant, the Lord Chancellor, under sections 7 and 9 of the Human Rights Act 1998 for breach of articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Lord Chancellor, relying on Court of Appeal authority, applied to strike out the claim under CPR r 3.4(2)(b) on the ground that it was an abuse of process to bring a claim against him by way of an originating process for damages when the underlying judicial orders ought to have been challenged by way of an appeal; that the claimant could only pursue a claim for damages against the Lord Chancellor if the appellate courts concluded that the judicial orders in question breached the claimant’s Convention rights so as to fall within section 9(3) of the 1998; that in view of the Lord Chancellor’s constitutional role it was not for him to be involved in a claim to which he had not been a party to express a view as to whether actions of the independent judiciary were lawful or not; and that the claimant could appeal out of time. The claimant resisted the application, submitting, inter alia, that were the Lord Chancellor’s position correct it would never be permissible to bring a claim under CPR Pt 7 in respect of a judicial decision without first having sought to appeal or claim judicial review, whereas the Court of Appeal had indicated that there was no such blanket principle; and that any event, to allow the claim to proceed would not constitute a collateral attack, there being no risk of inconsistent decisions because the orders that could have amounted to a breach had been swept away and an appeal in those circumstances would serve no purpose.
On the Lord Chancellor’s application to strike out the claim—
Held, application dismissed. (1) There was a danger of emasculating the provision for the free-standing claim for damages under section 9 of the Human Rights Act 1998 if it had to be parasitic on a successful appeal or application for judicial review. The Court of Appeal had made clear that the claim for damages had a broader scope and that there was no blanket rule that it had to be brought on appeal. That was subject to the possibility that there would sometimes be cases in which an appeal would be necessary, such as where an attack was based entirely on an error of law, where a claim for damages could be an abuse of process. Each case being fact-sensitive, the court did not need to define where the boundaries lay in each case. It sufficed simply to concentrate on and to analyse the facts of the case subject to the above considerations in order to reach a just conclusion (paras 53, 56–59, 61).
(2) Applying those principles, while there had been no formal determination as to the dates when the claimant had first lacked litigation capacity or injunction capacity, and the precise nature of the lack of capacity had not been fully explored or set out, and while the Lord Chancellor, not having been a party to the County Court proceedings might not be bound by the findings therein, the case was not one where there was clear and obvious proof that the claim was abusive. On the information currently available to the court, it appeared that the issues of capacity had been determined sufficiently in the County Court so that a damages claim could be brought without that being inconsistent with that claim. If and to the extent that not all such matters had been determined they did not render the claim for damages under section 9(1)(c) of the 1998 Act abusive or an affront to the administration justice or such as to cause harassment or oppression to the parties to the County Court claim. It was a sufficient answer to the strike out application that it appeared artificial and unnecessary to require an appeal of the County Court orders as a prerequisite to the damages claim. The grounds of the Lord Chancellor’s application had not made it sufficiently clear and obvious in all the circumstances that the claimant’s claim was inappropriate. On the contrary, there were case management reasons for the Part 7 claim to proceed without an appeal. Further, the application to strike out had not been made promptly, and, in any event, as a matter of discretion the case ought not to be struck out, there being no particular prejudice to the Lord Chancellor in proceeding in that way and, at least in the context of a strike out application, there were no reasons for striking out the claim on the basis that his participation would or might undermine his constitutional function (paras 65, 66, 69, 70, 72–74).
Martin Westgate KC and Daniel Clarke (instructed by TV Edwards LLP) for the claimant.
Joanne Clement KC and Riccardo Calzavara (instructed by Treasury Solicitor) for the Lord Chancellor.
The commissioner did not appear and was not represented.