LL (Appellant / Claimant) v The Lord Chancellor (Respondent / Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice King,Lord Justice Longmore |
| Judgment Date | 10 April 2017 |
| Neutral Citation | [2017] EWCA Civ 237 |
| Docket Number | Case No: A2/2016/0279 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 April 2017 |
[2017] EWCA Civ 237
Lord Justice Longmore
Lord Justice Jackson
and
Lady Justice King
Case No: A2/2016/0279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court, Queen's Bench Division
Mr Justice Foskett
TLQ/15/0657
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jamie Burton & Ms Angela Patrick (instructed by Hodge Jones & Allen LLP) for the Appellant
Mr Oliver Sanders QC & Mr Elliot Gold (instructed by Treasury Solicitor) for the Respondent
Hearing date: Tuesday 7th March 2017
Approved Judgment
This judgment is in eight parts, namely:
| Part 1 – Introduction | Paragraphs 2 – 11 |
| Part 2 – The facts | Paragraphs 12 – 50 |
| Part 3 – The present proceedings | Paragraphs 51 – 55 |
| Part 4 – The appeal to the Court of Appeal | Paragraphs 56 – 59 |
| Part 5 – The Law | Paragraphs 60 – 90 |
| Part 6 – The first 3 grounds of appeal | Paragraphs 91 – 98 |
| Part 7 – Ground 4: Did the procedural errors made by Ms Justice Russell amount to a "gross and obvious irregularity"? | Paragraphs 99 – 112 |
| Part 8 – Executive Summary and Conclusion | Paragraphs 113 – 115 |
This is an appeal by an individual, who was wrongly committed to prison for contempt of court, against the rejection of his claim for a declaration and damages. The central issue in this appeal is whether the errors made by the High Court judge in the original proceedings were so serious as to constitute "gross and obvious irregularity", with the consequence that the Lord Chancellor is liable in damages under section 9 of the Human Rights Act 1998.
The underlying proceedings concerned arrangements for a child, M. In those proceedings M's father was referred to as LL. M's mother was referred to as CC. I shall use the same abbreviations.
In the application to commit for contempt CC was applicant and LL was respondent. In the current litigation, LL is claimant and the Lord Chancellor is defendant. In the present appeal LL is appellant and the Lord Chancellor is respondent. To avoid any confusion, I shall refer to the father as "LL" at all times.
The judge from whom we are hearing an appeal is Mr Justice Foskett. The judge who committed LL to prison in 2014 is Ms Justice Russell. All references in this judgment to "the judge" are references to Russell J.
I shall refer to the Human Rights Act 1998 as " HRA". The following are the relevant provisions of the HRA:
"6. – Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes –
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
….
7. – Proceedings.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
….
9. — Judicial Acts.
(3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.
(5) In this section –
" appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him."
I shall refer to the European Convention on Human Rights as "ECHR". Article 5 of the ECHR provides:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
When summarising authorities I shall refer to the party making a claim by a single initial. Thus in Benham v United Kingdom (1996) 22 EHRR 293 I refer to the applicant as "B". Where I use the abbreviation "X", that is a reference to a hypothetical person who is or may be detained.
In this judgment, it will unfortunately be necessary to assess the consequences of what are agreed to be serious procedural errors by a Family Division judge. I should, therefore, acknowledge at the outset that the judges of that division undertake some of the most arduous and emotionally draining cases that come before the courts. Their task can be a lonely one. Feelings run high in many family cases. People who are otherwise entirely reasonable may become aggressive or obstructive litigants when contesting the future arrangements for their children. These are the conditions under which the judge in this case was seeking, in good faith, to discharge her duties.
Finally, nothing in this judgment detracts from the principle of judicial immunity. So long as judges act in good faith, they incur no personal liability for erroneous judgments or orders: Sirros v Moore [1975] QB 118. Except as set out in Part 5 below, the Crown has no liability for anything done by any person discharging judicial responsibilities: section 2(5) of the Crown Proceedings Act 1947.
After these introductory remarks, I must now turn to the facts.
LL and CC met in Singapore during 2010. They formed a relationship. LL subsequently moved to London, where he worked for JP Morgan. In June 2011 LL and CC were married. On 5 th July 2012, CC gave birth to their son, M.
Unfortunately, there were difficulties in the marriage. In February 2013 there were allegations of domestic violence against LL, but these did not lead to any proceedings.
In July 2013, LL and CC travelled to Singapore with M for a holiday and with the intention of leaving M with LL's parents, who lived in Singapore. It is a matter of dispute between the LL and CC whether the plan was to leave M with the paternal grandparents for a few months only or for longer than that.
LL and CC returned to the UK. LL continued working at JP Morgan. CC, being free of childcare, became a full time student. In the autumn she sat and passed the exams for which she was enrolled.
On 22 nd January 2014 LL and CC flew to Singapore. It is a matter of dispute whether the purpose of this trip was to fetch M back to England. It seems quite likely that was the purpose, since LL had booked three return flights for himself, CC and M on 25 th January 2014. Once they were in Singapore, however, and without any prior notice LL issued divorce and custody proceedings, which were served on CC. At the same time LL informed CC that he had resigned from his job in London. He had arranged to live and work in Singapore.
CC was dismayed by this turn of events. She instructed English solicitors, who made an emergency application to the Family Division of the High Court in London. On 24 th January 2014, Cobb J directed that M should be a ward of court. He also ordered LL to return to the UK with M on 25 th January (using the pre-booked flights) and to place M in the care of CC. He directed that after returning to the UK, LL...
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