Joanne Clement KC appears in important case about claiming damages under the Human Rights Act 1998 arising out of judicial acts


In MTA v (1) Commissioner of Police for the Metropolis and (2) Lord Chancellor [2023] EWHC 117 (KB), MTA was arrested and detained in custody on a number of occasions for breach of an interim injunction with a power of arrest, made under the Anti-Social Behaviour, Crime and Police Act 2014. The courts subsequently concluded that MTA lacked capacity to litigate and to understand the injunction, and the interim injunction was set aside.

MTA issued a claim for damages against the police and also against the Lord Chancellor, under section 9 of the HRA. The claim against the Lord Chancellor is made under section 7 and 9 of the HRA. MTA contends that a number of judicial acts breached his rights under Article 5 and 6 of the ECHR.

The Lord Chancellor applied to strike out the claim on the basis that is an abuse of process. The application was based on the Court of Appeal decision in Mazhar v Lord Chancellor (No 1) [2021] Fam 103, to the effect that it is an abuse of process to bring a claim under s9 arising out of a judicial act by way of an originating process for damages when the underlying orders could – and should – be challenged by way of an appeal. The Claimant can only pursue a claim for damages against the Lord Chancellor if the appellate courts have concluded that the judicial orders in question did breach a claimant’s rights under the ECHR.

Freedman J dismissed the Lord Chancellor’s application, holding that it was not an abuse of process to bring a Part 7 claim for damages in this case. While it may in some circumstances be an abuse of process to bring such a claim, it was not in this case, as MTA could not have appealed the relevant orders at the time (as he lacked capacity and did not have a litigation friend), the orders were subsequently set aside, and there was no prejudice to the Lord Chancellor in proceeding via a Part 7 claim without an appeal.

Freedman J rejected the Lord Chancellor’s submission that allowing the Part 7 claim to proceed was inconsistent with the Lord Chancellor’s constitutional duty to defend the independence of the judiciary.

The judgment is available here.

Joanne Clement KC appeared for the Lord Chancellor, leading Riccardo Calzavara of Cornerstone