The Court of Appeal has handed down judgment in Mazhar v Lord Chancellor  EWCA Civ 1558.
The appeal considered the circumstances in which a claimant could bring a claim against the Lord Chancellor under section 9 of the Human Rights Act 1998 contending that his Convention rights had been breached by a judicial act. In this case, the judicial act was an order made by Mostyn J authorising the Claimant’s removal from his home and his deprivation of liberty in a hospital. The Claimant brought a claim in the High Court under section 9(1)(c) of the Human Rights Act 1998, seeking a declaration against the Lord Chancellor that the judicial act had breached his rights under Article 5 of the Convention. The High Court dismissed the claim, holding that it was barred by the principle of judicial immunity and that the court had no jurisdiction to grant a declaration against the Lord Chancellor under section 9(3) of the Human Rights Act. The High Court concluded that the claim would be an abuse of process, and the only remedy was a claim for damages for breach of Article 5 which would have to be made on an appeal to the Court of Appeal and could not be pursued in a court of co-ordinate jurisdiction.
The Court of Appeal concluded that the way in which a judicial act would usually be the subject of proceedings under the Human Rights Act 1998 was by way of an appeal or, where available, a claim for judicial review. The only circumstances in which a claim was permissible under section 9(1)(c) of the Act was to seek damages for unlawful detention in breach of Article 5 of the Convention. An action for a remedy other than damages, such as a declaration that the Judge had breached a claimant’s Convention rights, could not be brought by way of an originating process under section 9(1)(c), and had to be brought by way of an appeal against the original order. The Court of Appeal also concluded that the High Court had been wrong to hold that a claim for damages arising out of an order made by a High Court judge could only be brought by way of an appeal to the Court of Appeal. It is possible to bring such claims in the High Court, although it might be an abuse of process to make a claim against the Lord Chancellor under section 9(3) in respect of an order which could be and ought to have been appealed.
The Court of Appeal also gave guidance about the circumstances in which an aggrieved party should seek to set aside an order obtained ex parte, and when an appeal should be brought against such an order.
The Court of Appeal dismissed the appeal, but granted the Appellant permission to appeal out of time against the original order made by Mostyn J. The Court of Appeal’s judgment is available here.