An overview of MTA v Lord Chancellor

Facts

The Respondent, MTA, was a young man with a global learning disability and complex mental health difficulties. He lived in East London with his mother and siblings in a home rented from a housing association, Gateway Housing Association (“Gateway”).

Following repeated complaints of anti-social behaviour by the Respondent and his brother, on 8 January 2020, the Gateway applied for an injunction against him and his brother under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. The County Court granted an interim injunction in the terms sought by the housing association by order dated 17 February 2020. A power of arrest was attached to the order.

In May 2020, the day before the injunction’s return date, the Respondent was arrested for suspected breach of the injunction. He was detained overnight and brought before a judge the following day, at which point the issue of the Respondent’s capacity was raised. At the adjourned return date, the District Judge, having considered the Respondent’s expert evidence, found that the Respondent lacked capacity within the meaning of the Mental Capacity Act 2005 to instruct solicitors or to “make meaningful decisions” about the committal proceedings. The Judge made a declaration accordingly and ordered the dismissal of “the proceedings under CPR Part 65” and directed the Respondent’s immediate release.

Despite this order, the Respondent was arrested on several further occasions for suspected breach of the injunction. On 29 June 2020, upon considering committal proceedings for the suspected breach, the District Judge ordered that the injunction order of 17 February 2020 and powers of arrest attached thereto were of no effect. The Respondent’s immediate release was ordered.

Acting by the Official Solicitor as his litigation friend, the Respondent brought proceedings for damages under sections 7 and 8 of the Human Rights Act 1998 (“the 1998 Act”) against (inter alia) the Lord Chancellor. He argued that those periods of his detention in May and June 2020 constituted detention in breach of Article 5(1) of the European Convention on Human Rights (“ECHR”) and were, accordingly, unlawful by virtue of section 6 of the 1998 Act. By application dated 1 June 2022, the Lord Chancellor applied to strike out the claim as an abuse of process. The Lord Chancellor’s application was dismissed by order of Freedman J dated 25 January 2023.

The Lord Chancellor’s case before the Court of Appeal was two-fold. First, he argued that an application for damages under the 1998 Act will necessarily amount to an abuse of process where the order said to have breached a Convention right could have been appealed and was not. The proceedings were said to amount to an abuse of process in two ways:

The free-standing claim for damages constituted an illegitimate collateral challenge as the Respondent had sought to circumvent the established appeal machinery. Following the House of Lords decision in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, this was a recognised form of abuse of process. The proper process would have been to seek to appeal the order of 17 February 2020 and, if successful, to bring proceedings under the 1998 Act thereafter.
If the proceedings were not held to be an abuse of process, the Lord Chancellor would be in a “constitutional quandary” which would serve to undermine the independence of his office. He argued that, if claimants who had not appealed underlying decisions were nonetheless permitted to bring damages claims under the 1998 Act, the Lord Chancellor would have to take a view on the merits of defending such claims. That may require the Lord Chancellor to adopt the position that a decision of a member of the independent judiciary was incorrect.

Alternatively, he argued that, even if there was no blanket rule to this effect, it was an abuse of process for the Respondent to bring his claim for damages in the circumstances of the case.

Decision

The Court of Appeal unanimously dismissed the appeal.

The Vice-President, Lord Justice Underhill, giving the judgment of the Court, rejected both strands of the Lord Chancellor’s argument as to abuse of process. On the collateral challenge issue, it was fatal to the Lord Chancellor’s case that the impugned orders had already been held to have been of no effect by the District Judge [61]. Although there had been no formal appeal of the injunction order, in the context of abuse of process challenges, it was “substance, not form” that was significant [65].

The Lord Chancellor’s innovative “constitutional quandary” argument was, to a certain extent, rendered irrelevant by the Vice-President’s finding that a competent court had in effect already set aside the injunction order. Nonetheless, the Vice-President clarified that, even absent such a finding, no aspect of the rule of law would suffer. By virtue of section 9(3) of the 1998 Act, damages may be claimed in respect of judicial acts which violate a Convention right. In enacting that section, Parliament “must have intended that in that capacity [the Lord Chancellor] should enjoy the ordinary rights and responsibilities of a litigant” [69]. In those circumstances, there was no basis on which it could be an abuse of process for the Respondent to pursue his claim for damages under the 1998 Act [71].

In obiter, the Vice-President remarked more broadly that he would not generally consider that a claim for damages in respect of a judicial act would amount to an abuse of process without the order first being set aside. The Vice-President found no contrary proposition in relevant case law including Mazhar v Lord Chancellor [2020] 2 W.L.R. 541 and Arthur JS Hall and Co v Simons [2002] AC 615. While Dingemans LJ agreed with the judgment of the Vice-President, Lewison LJ appeared not to agree with these obiter comments, clarifying his view that the appeal should be dismissed for the reasons given [1-71].

Claudia Hyde, Pupil Barrister at Landmark Chambers