The Court of Appeal held in a unanimous decision on 10 April 2017 in the case of LL v The Lord Chancellor  EWCA Civ 237 (available here) that a claim can be brought against the Lord Chancellor following a High Court judge’s ‘gross and obvious irregularity’.
Jackson LJ, with whom King and Longmore LJJ agreed, stressed that this decision did not traverse the long-established principle of judicial immunity from suit and should not be considered ‘the thin end of the wedge’ for claims against judges as this case was ‘unusual’ and ‘exceptional’.
The appeal focussed on a series of orders given by Ms Justice Russell in April 2014, in respect of the custody of the claimant’s son, referred to as M. These orders were all breached by LL leading to Russell J finding LL to be in contempt of court and sentencing him to 18-months imprisonment. When this conviction was appealed, a differently constituted division of the Court of Appeal upheld the appeal and ordered the immediate release of LL.
In April 2015, LL commenced a claim in the High Court against the Lord Chancellor seeking damages pursuant to sections 6, 7(1) and 9(3) of the HRA following his unlawful imprisonment. Foskett J dismissed this appeal on the basis that Russell J’s conduct did not amount to a ‘gross and obvious irregularity’.
When LL appealed this decision to the Court of Appeal in the instant case, the parties agreed Russell J had made a series of failings, the dispute was whether they passed what was described as the ‘very high threshold’ of being a gross and obvious irregularity.
In the Court of Appeal’s decision, Ms Justice Russell made a series of 6 errors, the cumulative effect of which amount to a gross and obvious irregularity:
1. She included in a recital to an order the court’s ‘expectation’ that LL secure the return of M from Singapore by instigating proceedings there if necessary.
2. She failed to recuse herself on grounds of apparent pre-determination or bias.
3. She required the defendant in what had become criminal proceedings to give evidence, rather than warning him the proceedings had moved from the family to the criminal jurisdiction and he did not need to give evidence.
4. When having made such a requirement to give evidence, she failed to permit the defendant to put his case first, instead he was subjected to an immediate cross examination.
5. She conflated LL’s non-compliance with court orders (some of which were impossible to meet and were only proved to the balance of probabilities) with a deliberate breach of the court orders.
6. The defendant was not afforded the opportunity to make any submissions in mitigation following being found guilty and the judge passing sentence.
Russell J’s finding of guilt following LL’s breach of an order which could not be complied with amounted to a gross irregularity which would be obvious to anyone familiar with the court process.
This case is based on its own unique facts and any subsequent cases would be equally subjective. Indeed, Jackson LJ held that in reaching the decision the court was not assisted by comparing the significance of the breach with previously decided cases. It is unlikely that this case will be the catalyst of a breed of new claims against the judiciary.
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© Chambers of Lawrence Power