MTA (a protected party, by his litigation friend, the Official Solicitor) v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 25 January 2023 |
| Neutral Citation | [2023] EWHC 117 (KB) |
| Docket Number | Case No: QB-2021-000579 |
| Court | King's Bench Division |
and
[2023] EWHC 117 (KB)
Mr Justice Freedman
Case No: QB-2021-000579
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Westgate KC and Mr Daniel Clarke (instructed by TV Edwards LLP) for the Claimant/Respondent
Ms Joanne Clement KC and Mr Riccardo Calzavara (instructed by The Government Legal Department) for the Second Defendant/Applicant
The First Defendant did not participate in the application
Hearing date: 15 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
I Introduction
The Claimant claims damages against the Lord Chancellor under sections 7 and 9 of the Human Rights Act 1998 (“the HRA 1998”) for breach of Articles 5 and/or 6 of the European Convention on Human Rights (“ECHR”) by judicial acts in relation to an injunction and power of arrest under the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) in proceedings brought against the Claimant by Gateway Housing Association (“the Landlord”). The Lord Chancellor seeks to strike out the claim on the basis that it is an abuse of process.
II The Facts
The Claimant was born on 2 August 1998. He has had severe global development delay since birth. He lives with his mother and a number of siblings at a property in East London (“the Property”) pursuant to a secure tenancy agreement granted to his mother by the Landlord.
On 8 January 2020 the Landlord issued a claim in the County Court at Clerkenwell and Shoreditch (“the County Court Claim”) against the Claimant and his brother (known as “SA”) for an injunction with a power of arrest under the 2014 Act.
On 7 February 2020 the Claimant was sentenced to six months' imprisonment for reasons unconnected to the County Court Claim. On 17 February 2020, the first hearing of the application in the County Court Claim took place before DJ Manners. The Claimant did not attend as he was in custody, although the Claimant's brother and sister attended. DJ Manners granted an interim injunction (“the Injunction”), with a power of arrest. Reference was made to the Claimant having some degree of learning disabilities. The Claimant's sister was advised to seek legal advice, and to provide evidence of the Claimant's difficulties. Permission was granted for a capacity assessment to be filed.
The return hearing was duly fixed for 3 March 2020 which duly took place before DJ Revere. The judge was informed by the Claimant's counsel that he had substantial learning difficulties and that there was “an issue with capacity”. The court was not asked to vary or discharge the Injunction; indeed the Claimant's counsel said explicitly that she would not make submissions as to the same as the Claimant remained in custody and the Injunction did not affect him. Permission was granted for the filing of an expert report from a psychologist. Dr Roy Shuttleworth concluded by a report dated 27 April 2020 that the Claimant had litigation and injunction capacity (“the Shuttleworth Report”). The Claimant did not file or serve the Shuttleworth Report.
On 24 March 2020, the Claimant was apparently released early from custody. No application was made at this stage to vary or discharge the Injunction. On 18 May 2020, the Claimant was arrested on suspicion of breach of the Injunction and held in custody overnight.
At 10am on 19 May 2020 DJ Hayes heard the adjourned return hearing for the Injunction. The judge was informed by the Claimant's counsel that an unfavourable expert report had been obtained, and an extension of time for filing a new expert report was sought. The judge directed that the Claimant should disclose the Shuttleworth Report if he wanted permission to adduce a new report. The court was not asked to vary or discharge the Injunction; indeed the Claimant's counsel explicitly said that she did not oppose its continuation and the court had made no findings that the Claimant was a protected party. The return date was adjourned until 29 May 2020.
The Claimant later brought an appeal against para. 2 of the order of DJ Hayes, alleging that the judge did not have the power to attach the condition to the making of the application for an extension of time, that it amounted to an impermissible restraint on his ability to participate in the proceedings, and was contrary to the fair administration of justice. The appeal was subsequently withdrawn after an order was made in the committal proceedings before HHJ Hellman for the production of a further report, as below. The appeal did not challenge the continuation or otherwise of the Injunction and/or the power of arrest.
At 11am on 19 May 2020, the Claimant was produced before HHJ Hellman following his arrest the previous day. His counsel sought permission to obtain an expert report as to his litigation capacity in the committal proceedings. In the light of his concerns that there was a real risk that there would be further breaches if the Claimant were released and a report obtained in the community, the judge remanded him in custody pursuant to para. 5 of Schedule 1 to the 2014 Act in order for such report to be obtained. The court was not asked to vary or discharge the Injunction.
On 29 May 2020, DJ Hayes amended the boundary line on the plan annexed to the Injunction, without the parties' attendance. That order was not sealed until 16 July 2020, by which time it had been set aside by orders of DJ Swan on 30 June 2020 and of DJ Hayes on 9 July 2020.
The report ordered by HHJ Hellman was completed by Dr Emma Citron on 4 June 2020 (following a remote interview with the Claimant on 2 June 2020). She expressed the view that the Claimant lacked litigation and injunction capacity by reason of a learning disability that he has had since birth (“the Citron Report”). The Claimant's solicitor confirmed that an approach was made to the Official Solicitor to act as the Claimant's litigation friend, and the Official Solicitor agreed to act as such should the court find that the Claimant lacked litigation capacity.
The Citron Report was considered at the adjourned committal hearing on 9 June 2020. HHJ Hellman found that the Claimant lacked litigation capacity in respect of the committal proceedings, which were dismissed, and released him from custody. This was the first occasion on which any evidence as to the Claimant's capacity had been adduced. The court was not asked to vary or discharge the Injunction. The judge was not dealing with the claim for an injunction, did not declare that the Claimant lacked litigation capacity in respect of the injunction claim, nor that he lacked injunction capacity, nor the date from which he lacked litigation capacity in respect of the committal proceedings. The parties agreed a timetable by which an application would be made to discharge the Injunction.
On 10 June 2020 the Claimant was arrested on suspicion of breach of the Injunction and held in custody overnight. On 11 June 2020 he was produced before DJ Swan. The judge rejected the Landlord's entreaties to remand the Claimant in custody, instead discharging him from the arrest and dismissing the proceedings resulting from it. No application was before the court to vary or discharge the Injunction.
It was not until 23 June 2020 that the Claimant applied to have the Injunction set aside and/or for the underlying claim to be dismissed. On the same day the Official Solicitor filed a certificate of suitability to be his litigation friend. On 29 June 2020, the Claimant was arrested on suspicion of breach of the Injunction and held in custody overnight. On 30 June 2020 he was produced before DJ Swan. The judge concluded that the effect of HHJ Hellman's decision on 9 June 2020 was that the Claimant generally lacked litigation capacity since birth, such that the Injunction was void and required to be set aside under CPR 21.3(4) (which provides that any step taken in litigation before a protected party has a litigation friend has no effect unless the court orders otherwise). DJ Swan discharged the Claimant from the arrest and gave directions for the hearing of the application to dismiss the underlying claim. No findings were made as to whether the Claimant lacked injunction capacity.
The application to set aside the Injunction was listed before DJ Beecham on 7 December 2020. On that day, DJ Beecham declared that the Claimant lacked injunction capacity and dismissed the underlying claim. The judge did not declare the date from which he so lacked capacity.
Aside from an ultimately abortive appeal against the decision of DJ Hayes on 19 May 2020, the Claimant has never sought to appeal against any of the orders made in the conduct of the proceedings detailed above.
On 14 December 2020 the Claimant threatened judicial review proceedings and, following the Lord Chancellor's response on 19 January 2021, he accepted on 27 January 2021 that no such proceedings should be brought. On 2 February 2021 the Lord Chancellor directed the Claimant's attention to the decision in Mazhar v Lord Chancellor (No.1) [2021] Fam 103 (“ Mazhar 1”), and invited him to appeal the underlying orders instead of instituting a Part 7 claim.
The Claimant declined to do so, and on 16 February 2021 this claim was issued, initially contending that various judicial acts gave rise to a breach of his rights under Article 5 of the ECHR in respect of which he was entitled to damages as against both defendants (and as against the...
To continue reading
Request your trial