The Court of Appeal clarifies the rules on procedural routes for Human Rights challenges to judicial acts

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19 December, 2019

Lucy Harris

Mazhar v Lord Chancellor [2019] EWCA Civ 1558

On 2 October 2019, the Court of Appeal confirmed that proceedings seeking a declaration of a breach of Article 5(1) of the European Convention on Human Rights (ECHR) resulting from a judicial act should be by way of an appeal of the original order, and that section 9(1)(c) of the Human Rights Act 1998 (HRA 1998) can only be used for a claim of damages.


The facts of the case related to an Order made in April 2016 by Mostyn J in the High Court under its inherent jurisdiction. The Order permitted police and medical professionals to enter the appellant's home and take him by ambulance to hospital for treatment and for him to be detained. The appellant suffered from severe physical disabilities and had required intensive 24-hour care at home. The detainment in hospital deprived him of his liberty. Birmingham Community Healthcare NHS Foundation Trust (the Trust), which applied for the Order, alleged that the appellant's mother had refused to allow carers to enter the home and this put his life at serious risk.

The appellant later accepted a Part 36 settlement offer of damages from the Trust. However, he pursued a claim against the Lord Chancellor (as the Minister responsible for the court concerned) in the High Court for a declaration that particular ECHR rights of his, including Article 5 (the right to liberty and security), had been breached by the judicial act of the Order.

In the High Court, Sir Ernest Ryder dismissed the claim and held 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 s9(3) HRA 1998. The High Court concluded that the claim would be an abuse of process and the only remedy would be a claim for damages for the breach of Article 5 ECHR and this would have to be made on an appeal to the Court of Appeal.


The Court of Appeal unanimously 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 concluded that the way in which a judicial act would usually be the subject of proceedings under HRA 1998 was by an appeal or a claim for judicial review.

The only circumstances in which a claim was permissible under section 9(1)(c) HRA 1998 was to seek damages for unlawful detention in breach of Article 5 ECHR.

An action for a remedy other than damages, such as a declaration that the Judge breached a claimant's Convention rights, could not be brought by way of an originating process under section 9(1)(c) HRA 1998 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 on 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 noted that the facts of the case had been "exceptional" and that it was only its judgment that had established the correct interpretation of section 9 HRA 1998. The proper course for the appellant was to appeal the Order (and not make a claim for a declaration). In addition, the appellant had a real prospect of success.


The case clarifies the correct procedure for use of and limitations of section 9 HRA 1998. The Court of Appeal held that while an action for damages for unlawful detention in breach of Article 5(1) can be brought under section 9(1)(c), a claim purely for a declaration of a breach of the ECHR (or any other remedy) had to be brought by appeal against the original order (and judicial act).

For more information contact Lucy Harris in our Insurance department via email or phone on 01254 222443. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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