Court allows damages claim from protected party to go ahead over judicial acts in relation to anti-social behaviour injunction

A case against the Commissioner of Police of the Metropolis and the Lord Chancellor can proceed and is not an abuse of process, Mr Justice Freedman has ruled in the High Court.

The case of MTA v Commissioner of Police of the Metropolis & Anor [2023] EWHC 117 (KB) was brought by MTA, who is a protected party, by his litigation friend the Official Solicitor.

MTA has had severe global development delay since birth. He lives with his mother and siblings at a property owned by a housing association.

The housing association in January 2020 issued a claim against MTA and his brother SA for an injunction with a power of arrest under the Anti-Social Behaviour, Crime and Policing Act 2014.

He was jailed for an unconnected reason the following month so did not attend the injunction hearing.

DJ Manners granted an interim injunction with a power of arrest and at a return hearing in March 2020 before DJ Revere the court heard MTA had substantial learning difficulties and there was "an issue with capacity". The court was not asked to vary or discharge the injunction.

MTA was released from prison in March 2020, but in May 2020 was arrested on suspicion of breach of the injunction and held in custody overnight.

He then appeared before HHJ Hellman and sought permission to obtain an expert report as to his litigation capacity. He was remanded in custody while this was obtained.

It concluded MTA lacked litigation and injunction capacity by reason of a learning disability and HHJ Hellman released him from custody.

In June 2020, MTA applied to have the injunction set aside and/or for the underlying claim to be dismissed but a few days later was arrested on suspicion of breach of the injunction and held in custody overnight.

DJ Swan concluded HHJ Hellman's decision that MTA lacked litigation was that the injunction was void and required to be set aside under CPR 21.3(4).

An application to set aside the injunction came before DJ Beecham in December 2020, who declared MTA lacked injunction capacity and dismissed the underlying claim.

MTA then threatened judicial review proceedings but, following the Lord Chancellor's response, accepted no such proceedings should be brought.

In February 2021 the Lord Chancellor directed MTA’s attention to the decision in Mazhar v Lord Chancellor (No.1) [2021] Fam 103 and invited him to appeal the underlying orders instead of instituting a Part 7 claim.

MTA declined, and issued a claim that various judicial acts had breached his rights under Article 5 of the ECHR and he was entitled to damages against both defendants.

The Lord Chancellor then applied to strike out the claim as being an abuse of process.

Freedman J said MTA alleged against the commissioner that the injunction orders were of no effect because of CPR r.21.3(4) and that therefore each of the arrests was made without lawful authority.

His claim against the Lord Chancellor relied on the individual and cumulative effect of the orders made as amounting to a breach of Article 5 as they made MTA subject to an order with which it was not feasible for him to comply.

The Lord Chancellor submitted it was an abuse of process to bring a claim by way of an originating process for damages when the underlying orders could – and should - be challenged by way of an appeal.

Freedman J said: “The concern in the instant case of the Lord Chancellor is that the claim for damages against the Lord Chancellor without an appeal is a collateral attack on the decisions of the circuit and district judges who made the orders referred to above.

“The claimant's submission is that if the Lord Chancellor's position were correct, it would never be permissible to bring a claim under Part 7 in respect of a judicial decision without first having sought to appeal or claim judicial review.”

Freedman J said: “It suffices simply to conclude that at this stage, the information before the court is to the effect that the section 7 claim can proceed without the dangers of re-litigation and/or an affront to the administration of justice and/risk of harassment or oppression to other parties.”

He said the case should not be struck out because the court should not deprive MTA of this claim “without a more scrupulous examination of the circumstances of the kind which would occur in the context of a trial”.

The judge further noted there had not been a prompt application to strike out the claim, with more than a year between service of the claim and the Lord Chancellor’s strike out application.

"There is no particular prejudice to the Lord Chancellor in proceeding in this way through a Part 7 claim without an appeal,” Freedman J said.

He also rejected an argument made over the constitutional position of the Lord Chancellor.

This was that since the Lord Chancellor must not seek to influence particular judicial decisions it was not for him to "enter into the arena" in a claim to which he was not a party, to express a view as to whether actions of the independent judiciary were lawful or not.

Freedman J said: "I reject this argument at least in the context of a strike out application.

“The existence of a right to claim damages against the Lord Chancellor has as a possible consequence that the Lord Chancellor will, unless he or she wishes to capitulate, ‘enter into the arena' in order to defend the position.

He concluded: “On the information at this stage, there is no affront to the administration of justice or harassment or oppression to the other parties in the case for the claim for damages to be brought without a prior appeal or a judicial review.”

Mark Smulian