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LL v The Lord Chancellor [2017] EWCA Civ 237

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Appeal by claimant seeking compensation for wrongful imprisonment as a result of judicial errors in the committal proceedings. The CoA allowed the appeal as the judge’s errors breached the required threshold of "gross and obvious irregularity"

  • Neutral Citation Number: [2017] EWCA Civ 237

    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

    Date: 10/04/2017

    Before :

    LORD JUSTICE LONGMORE

    LORD JUSTICE JACKSON

    and

    LADY JUSTICE KING

    - - - - - - - - - - - - - - - - - - - - -

    Between :

    LL (Appellant / Claimant)

    - and -

    The Lord Chancellor (Respondent / Defendant)

    - - - - - - - - - - - - - - - - - - - - -

    - - - - - - - - - - - - - - - - - - - - -

    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

    - - - - - - - - - - - - - - - - - - - - -

    Judgment Approved

    Lord Justice Jackson :

    1. 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

    Part 1 – Introduction

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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."

    7. 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."

    8. 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.

    9. 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.

    10. 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.

    11. After these introductory remarks, I must now turn to the facts.

    Part 2 – The facts

    12. 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 5th July 2012, CC gave birth to their son, M.

    13. 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.

    14. 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.

    15. 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.

    16. On 22nd 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 25th 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.

    17. 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 24th 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 25th January (using the pre-booked flights) and to place M in the care of CC. He directed that after returning to the UK, LL should surrender his passport.

    18. On 25th January 2014, CC returned to London. In breach of Cobb J's order, LL did not bring M back to London on that date or at all. M remained living in Singapore with the paternal grandparents.

    19. One issue in the wardship proceedings was whether M was habitually resident in London or Singapore. There was a hearing before Ms Justice Russell to determine that issue on 7th March 2014. Both LL and CC were represented by counsel. They gave oral evidence. At subsequent hearings LL was unrepresented.

    20. On 14th March 2014 Russell J handed down her reserved judgment. She found LL to be a thoroughly unsatisfactory witness. She preferred the factual evidence of CC. She held that M was habitually resident in the UK. At the same time the judge made an order requiring LL to return M to the jurisdiction by 18th March. That order was endorsed with a penal notice.

    21. LL failed to return M to this jurisdiction by 18th March. Accordingly there was a further hearing on 19th March before Russell J to deal with the consequences.

    22. At the hearing on 19th March, LL produced email exchanges between himself and his parents, in which he urged them to bring M back to the UK and they refused. LL also demonstrated that he had twice provided air tickets for his parents and M, but they had declined to come to England. Russell J was not impressed. She made it plain that LL would go to prison for a substantial period if he did not immediately secure M's return to the UK.

    23. At the end of the hearing Russell J made an order requiring LL to return or cause the return of M to the UK by 8 am on Friday 21st March. The order was endorsed with a penal notice.

    24. Following that order LL sent an email to his parents urging his father to bring M to the UK on 20th March and stating that he had booked air tickets for the journey. LL's father refused to bring M to the UK.

    25. On 21st March 2014 there was a further hearing before Russell J. LL put the latest email exchange before the court and said that he could not force his parents to hand over M. The judge warned LL that he was facing a lengthy prison sentence. She criticised him for having failed to take proceedings in the Singapore courts to secure the return of M to the UK.

    26. At the end of the hearing on 21st March, Russell J made an order requiring LL to return M to the jurisdiction by 6 pm on 28th March. Recital E to the order stated:

    "E. And upon the court repeating to Mr LL that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the respondent father to make application to the Singaporean court to ensure M is returned to this jurisdiction pursuant to this Court Order."

    The judge fixed the next hearing for 3rd April and directed that LL should attend. A penal notice was attached to the order.

    27. On 27th March 2014 LL applied without notice to Theis J to discharge the order of 21st March. Theis J refused the application and directed that the matter should be referred to Russell J.

    28. On 28th March 2014, M (now aged 20 months) remained living with his grandparents in Singapore. LL was therefore in breach of the orders dated 14th, 19th and 21st March. CC, by her lawyers, applied for an order that LL be committed to prison for contempt of court.

    29. On 3rd April 2014 the matter came back for hearing before Russell J. Counsel, Mr Mark Jarman, represented CC. LL appeared in person.

    30. At the start of the hearing LL applied to the judge to recuse herself on the grounds of apparent bias. He pointed out that the judge had made robust and critical comments about him at previous hearings, including threats to send him to prison. He cited Porter v Magill [2002] 2 AC 357. He submitted that a fair minded and informed observer would conclude that there was a real possibility that the judge was biased against him.

    31. After hearing that application the judge refused it. Her ruling read as follows:

    "I will not recuse myself. I do not consider that this matter is before me for any other reason than that because Mr LL has failed to comply with court orders. It is clear that he disagrees with my judgment and makes some specific complaints about it. The correct route in that case is that of appeal.

    Much of what Mr LL said before me today amounted to arguments that he was trying to put against the judgment which I have made. Any fair and impartial observer would find no bias in these proceedings other than that the court found against Mr LL and he thinks that that necessitates a different court considering matters of contempt. The hearing will go ahead."

    32. Russell J then proceeded to deal with the committal application. Mr Jarman on behalf of CC briefly opened the matter. Russell J then addressed LL. She did not inform LL that, as these were criminal proceedings, he was not obliged to give evidence. Instead she said:

    "Yes, well we will deal with the committal first. Mr LL can you come forward to give evidence, please? Mr LL I am afraid I am going to have to ask you to stand because I will not be able to see you if you sit down. Thank you."

    33. Thus LL had no option but to give evidence. Once he was in the witness box the judge did not invite LL to tell the court his side of the story. Instead Mr Jarman, CC's counsel, proceeded straight away to cross-examination. He pressed LL to explain why he had not taken court proceedings in Singapore to secure the return of M to the UK. LL said that would destroy his family. It would be contrary to his culture to litigate against his own parents. Mr Jarman then suggested that LL's email exchanges with his parents were a fabrication. LL denied that.

    34. After Mr Jarman had completed his cross-examination, the judge proceeded to question LL. LL maintained that he had done his best to secure M's return to the UK, but he had no control over his parents (the paternal grandparents).

    35. After LL had given evidence, LL and Mr Jarman made closing submissions. The judge retired to consider the matter. She then returned to court and gave judgment.

    36. Russell J held that LL's failure to secure the return of M to the UK was a contempt of court. She imposed a sentence of 18 months imprisonment.

    37. In the first part of her judgment the judge set out the history of events. Then at paragraph 11 she said this:

    "Again M has not been returned to the jurisdiction. Mr LL has taken no active steps to get his parents to return M to this jurisdiction. I have seen nothing from his parents which would indicate anything other than an active desire to keep M from his mother and on the face of the evidence before this court that it is more likely than not that they have colluded with him in M's retention."

    38. In relation to the question whether LL should have taken court proceedings in Singapore against his parents, the judge said this at paragraph 13:

    "I do not accept the validity of his arguments regarding the cultural difference upon which he seeks to rely. Not only were they not raised previously they do not disclose any reason why Mr LL could not have raised with the court in Singapore the difficulties he now faces."

    39. In the next part of her judgment the judge strongly criticised LL for making his unsuccessful application to Theis J on 27th March. At paragraph 19 Russell J concluded as follows:

    "The court has determined today that LL is in contempt of court for the breaches of all three of the court's orders as M has not been returned to the jurisdiction of this court. There is no doubt about this, the contempt alleged is therefore proved to the necessary standard of proof that is to say beyond all reasonable doubt.

    Before I turn to sentence I shall add that the steps taken by Mr LL to have the orders effectively set aside amount to a determined and organised course of conduct which is contemptuous of the jurisdiction of this court. Moreover he has continued to lie to the court particularly regarding his financial situation."

    40. Having found that LL was in breach of court orders, the judge ought to have paused and given LL the opportunity to make submissions in mitigation of sentence. She did not do so. Instead she pressed on immediately to pass sentence.

    41. The judge held that LL's contempt was a very serious one. She imposed a sentence of 6 months imprisonment for breach of the order dated 14th March, 12 months imprisonment for breach of the order dated 19th March and 12 months imprisonment for breach of the order dated 21st March. She directed that the two 12 month terms should be concurrent with one another, but consecutive to the 6 months sentence. Thus the total sentence imposed was 18 months imprisonment.

    42. LL duly went to prison and started to serve his sentence. While in prison, he launched an appeal against the judge's various orders.

    43. LL's appeal came on for hearing before Maurice Kay, McFarlane and Kitchin LJJ on 4th June 2014. At the end of the hearing the court discharged the order committing LL to prison and ordered his immediate release. The court stated that it would give reasons for that decision and its judgment on all other matters at a later date.

    44. On 15th July 2014, the Court of Appeal handed down its reserved judgment ([2014] EWCA Civ 905). Kitchin LJ gave the principal judgment, with which Maurice Kay LJ and McFarlane LJ agreed. The court upheld Russell J's finding concerning M's habitual residence and her order dated 14th March 2014. The court upheld the judge's order dated 19th March but held that it ought not to have included recital E. The court held that the judge ought to have recused herself on 3rd April by reason of apparent bias or predetermination. The court quashed both the finding of contempt and the sentence of 18 months imprisonment.

    45. In relation to recital E to the 19th March order, Kitchin LJ said this:

    "49. Nevertheless I have a profound unease about the inclusion of a declaration of the court's expectation, as this recital purports to be, in an order of this kind for the following three inter-related reasons. First, it is of course a fundamental principle that any injunction must set out clearly what it is that the respondent may or may not do or, in the case of a mandatory injunction, as here, what it is that the respondent must do. A recital such as this is not an injunction but there is a real risk that that is what it may be understood to be. Indeed the use of the phrase "the court expects" clearly indicates an assumption by the court, the assumption in this case being that the father will take action against the grandparents in Singapore.

    50. Second, I am very doubtful it could ever be appropriate for the court to include in an order such as this a recital that is intended to pressurise or coerce a respondent into taking particular action which the court does not have the jurisdiction to order or, in so far as it does have jurisdiction, which it would not be prepared to exercise. In the present case the judge did not hear any developed argument or submissions as to whether the court had jurisdiction to order the father to take action of any particular kind in the courts of Singapore, and nor have we. Further, we have heard no submissions as to the nature of any such proceedings, whether and how they could be instigated by a person who could not leave this jurisdiction, the procedural steps they would involve, how long they would take, what they would cost or what their likely outcome would be. Yet by this simple recital the court expressed its expectation that the father would not only commence such proceedings but also, implicitly, pursue them to a successful conclusion.

    51. Third, I am very concerned that such a recital may be used as a foundation or support for a subsequent application for committal for contempt in the event that the respondent fails to fulfil the court's stated expectation. As will be seen, that is precisely what the judge did in this case. She attached weight to the father's failure to commence proceedings in Singapore in deciding whether the father was in contempt, and also, having found that he was in contempt, in considering what sentence she should impose.

    52. I have come to the conclusion that in all the circumstances of this case the recital was wrongly included in the order of 21 March 2014. It amounted to an attempt to coerce the father into taking unspecified steps which the judge was not prepared to order and yet it was always likely to be used, as it was in fact used, as support for the judge's subsequent findings of contempt."

    46. In relation to the issue of apparent bias or predetermination, Kitchin LJ applied the "fair minded observer" test. He concluded that in view of the judge's forthright comments at earlier hearings, a fair minded observer would on 3rd April 2014 conclude that Russell J had made up her mind, or at least was strongly disposed to find, that LL was in breach of the previous orders. Accordingly Kitchin LJ held that the judge ought to have recused herself. Her brief ruling on 3rd April gave no proper reasons for not doing so. She did not adequately address the concerns which LL had raised.

    47. Turning to the committal proceedings, Kitchin LJ was strongly critical of the procedure followed by the judge. At paragraphs 60 to 61 he said this:

    "60. I turn then to the second ground of appeal and I can deal with this quite shortly. The judge having rejected the application that she should recuse herself, proceeded to hear submissions from Mr Jarman on behalf of the mother. The father was then asked by the judge to give evidence in the manner I have described earlier in this judgment. After taking the affirmation he was immediately subjected to questioning, first by Mr Jarman and then by the judge herself. It was only then that the father was asked if he wished to say anything.

    61. Here again I believe the judge fell into error for she failed to keep in mind the important principles applicable to contempt proceedings articulated by this court in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133. So far as this appeal is concerned, I would reiterate that proceedings for committal are a criminal charge for the purposes of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ("the Convention"); the burden of proof lies on the person seeking committal; and a defendant is not obliged to give evidence and this is a matter of which he should be warned. The father was given no such warning, however. To the contrary, he was asked to give evidence and was immediately cross-examined, first by Mr Jarman and then by the judge. This was, it seems to me, wholly wrong. Appearing as he was in person, the judge ought first to have explained to him the nature of the proceedings and that he was not obliged to give evidence at all. Then, if he wished to give evidence he should have been given an opportunity to give evidence on his own account before being subjected to cross-examination. The father was denied the warning to which he was entitled and then subjected to a procedure which was the inverse of what it should have been."

    48. Kitchin LJ then turned to the finding that LL was in contempt. He set aside that finding for reasons which I would summarise as follows:

    i) LL could not go to Singapore to fetch M, because he had surrendered his passport as ordered by the court.

    ii) The finding of collusion between LL and his parents at paragraph 11 of the judge's judgment could not be a basis for holding that LL was in contempt, because that finding of collusion was only on the balance of probabilities.

    iii) There was no evidence and no possible basis for a finding that LL could have obtained an order from the Singapore courts requiring the grandparents to return M to the UK by 28th March.

    iv) LL's inappropriate application to Theis J on 27th March, which the judge criticised in trenchant terms, was irrelevant to the contempt issue.

    v) The judge could not find LL in contempt of court unless it was proved to the criminal standard of proof that he was in deliberate breach of the orders dated 14th, 19th and 21st March 2014. The judge did not properly address the question whether LL's non-compliance was a deliberate breach.

    49. Turning to sentence, Kitchin LJ was again strongly critical of the judge. At paragraphs 73 to 74 he said this:

    "73. The final ground of appeal concerns the judge's approach to sentence. As I have explained, the judge not only found the father to be in contempt but then proceeded to deal with sentence, and she did so without giving him any further opportunity to secure representation or to make any submissions on his own behalf as to the gravity of the contempts of which he had been found guilty or by way of mitigation. Indeed the judge took it upon herself, and without hearing anything more, to declare that the contempt was "a very serious one". This was, it seems, for two reasons: first, the father had breached the clear orders to return M to the jurisdiction "with the apparent connivance of the parents"; and second, "the behaviour and duplicitous behaviour since judgment was given on the 14th March disclose flagrant and deliberate breaches of three court orders in a concentrated effort to keep M from his mother". The first of these was a finding that the judge had never made, save on the balance of probabilities; and the second appears to reflect once again the judge's concern at the without notice application the father had made to Theis J, an application which, though certainly foolish and wrong, seems to me to have had only peripheral, if any, bearing on the gravity of his contempts.

    74. Here again, therefore, I believe the judge fell into error. She ought to have dealt with the issue of contempt first and then given the parties an opportunity to address her as to the consequences of her findings and the appropriate order to make. This course would have afforded the father the opportunity to which he was entitled to make submissions in his own defence as to the seriousness of the contempts which the judge had found and also by way of mitigation, and would have permitted the parties to assist her as to those matters which it was appropriate for her to take into account in deciding what penalty she should impose."

    50. Although no doubt pleased to win his appeal, LL was aggrieved by the fact that he had spent nine weeks in prison. He maintained that this was a breach of his rights under the HRA. Accordingly he commenced the present proceedings.

    Part 3 – The present proceedings

    51. By an application under Part 19 of the Family Procedure Rules 2010, issued on 7th April 2015, LL claimed against the High Court as first defendant and the Lord Chancellor as second defendant, damages in respect of his unlawful imprisonment. He contended that both the court and the Lord Chancellor had acted contrary to ECHR Article 5; accordingly, LL was entitled to damages pursuant to sections 6, 7(1) and 9(3) of the HRA. LL subsequently withdrew his claim against the High Court and continued against the Lord Chancellor as sole defendant.

    52. On 5th August 2015 the Lord Chancellor served a defence, denying liability. The Lord Chancellor maintained that the errors made by Russell J did not amount to a "gross and obvious irregularity". Therefore LL was entitled to no remedy other than a successful appeal against the judge's decision, which he had already achieved.

    53. The litigation proceeded to a trial before Foskett J on 2nd November 2015. The judge handed down his reserved judgment on 11th November 2015. He dismissed the claim ([2015] EWHC 3273 (QB)).

    54. I would summarise the Foskett J's reasoning as follows:

    i) The Lord Chancellor could only be liable for breach of ECHR Article 5 if the judge's conduct amounted to a "gross and obvious irregularity".

    ii) That is a very high threshold, as the authorities show.

    iii) The errors made by Russell J, although serious, did not cross that high threshold.

    iv) Accordingly LL's claim failed.

    55. LL was aggrieved by Foskett J's decision. Accordingly, he appealed to the Court of Appeal.

    Part 4 – The appeal to the Court of Appeal

    56. By an appellant's notice filed on 22nd January 2016 LL appealed against Foskett J's decision on four grounds. I would summarise those grounds as follows:

    i) Foskett J wrongly adopted or imported an exceptionality threshold into the "gross and obvious irregularity" test.

    ii) Foskett J attached too much weight to the fact that Russell J had acted in good faith and her errors were inadvertent.

    iii) Foskett J erred in attaching weight to the fact that the court might have committed LL for contempt, even if it had made no procedural errors.

    iv) Foskett J reached the wrong conclusion. The errors made by Russell J did amount to gross and obvious irregularity.

    57. The appeal came on for hearing on 7th March 2017. Mr Jamie Burton represented LL, as he had done in the court below. He was leading Miss Angela Patrick. Mr Oliver Sanders QC represented the Lord Chancellor. He was leading Mr Elliot Gold, who had represented the Lord Chancellor in the court below. I am grateful to all counsel for their assistance.

    58. Both counsel treated ground 4 as the principal ground of appeal and concentrated most of their argument and analysis on that issue. I shall do the same.

    59. Before addressing the grounds of appeal, I must first review the law.

    Part 5 – The law

    60. It is a fact of life in every legal system that individuals sometimes go to prison pursuant to court orders which are subsequently set aside. Both under our domestic law and under Strasbourg jurisprudence, there are strict limits upon the rights of such individuals to recover compensation.

    61. In Re McC (a minor) [1985] AC 528 a magistrates' court in Belfast imposed a custodial sentence on M without complying with the requirements of Article 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976. The Divisional Court quashed the sentence and ordered M's release. M brought a claim for damages against the magistrates. Section 15 of the Northern Ireland Act 1964 provided:

    "No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction."

    62. Hutton J held on a preliminary point of law that M had no cause of action against the magistrates. The Court of Appeal reversed that decision and the House of Lords upheld the Court of Appeal's decision. At 546-547 Lord Bridge (with whom Lord Elwyn-Jones, Lord Keith and Lord Brandon agreed) said:

    "But once justices have duly entered upon the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass. As Johnston v. Meldon, 30 L.R.Ir 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction: Rex (Martin) v. Mahony [1910] 2 I.R. 695; Rex v. Nat Bell Liquors Ltd [1922] 2 A.C. 128. It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question. I take this view because, as I have intimated earlier, I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case [1969] 2 A.C. 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of section 15 of the Northern Ireland Act of 1964 or section 45 of the Act of 1979.

    Justices would, of course, be acting "without jurisdiction or in excess of jurisdiction" within the meaning of section 15 if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods would not, in my opinion, necessarily expose the justices to liability in damages."

    63. What the House of Lords said about magistrates in McC was not, and still is not, applicable to High Court judges as a matter of domestic law. An order made by a superior court of record (including the Crown Court) cannot be treated as a nullity: see R v Cain [1985] 1 AC 46 at 55D.

    64. Let me now turn from our own common law to European human rights law. Section 6 of the HRA requires all courts, including any superior court of record, to act in compliance with the ECHR " Convention rights" referred to in section 1. The effect of sections 7(1) and 9 is that if a court orders X to be arrested or detained contrary to the provisions of ECHR Article 5, X is entitled to recover damages in a claim against the Crown. The Lord Chancellor must be named as defendant, as she is the "appropriate person" for the purposes of section 9(5) of the HRA.

    65. This does not mean anyone who successfully appeals against a custodial sentence or a conviction leading to such a sentence is entitled to recover compensation. Far from it. Such a person will usually have been the subject of "lawful detention…after conviction by a competent court" or "lawful detention…for non-compliance with the lawful order of a court". A right to compensation only arises where X's detention is outside the provisions of Article 5.

    66. During the 1990s the Strasbourg Court considered the operation of Article 5 in relation to persons imprisoned for non-payment of the community charge (popularly known as "poll tax"). See Benham v United Kingdom (1996) 22 EHRR 293 and Perks v United Kingdom (2000) 30 EHRR 33. In Benham B failed to pay sums due in respect of community charge. Magistrates held that the failure was due to culpable neglect and committed him to prison for 30 days pursuant to regulation 41 of the Community Charge (Administration and Enforcement) Regulations 1989. B served 11 days in prison before being released on bail. The Divisional Court held that the evidence did not establish culpable neglect and, in any event, committal to prison was wrong because B did not have the means to pay.

    67. B made a claim for compensation against the UK Government. The Strasbourg Court treated the House of Lords' decision in McC as setting out the appropriate test. At [25] the court summarised the ratio of McC as follows:

    "…a magistrates' court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent."

    68. This summary of McC reappears in later decisions of the Strasbourg Court and has become part of that court's jurisprudence. I shall refer to the three possible bases of liability identified in that passage as "McC limb 1", "McC limb 2" and "McC limb 3".

    69. In Benham the Strasbourg Court went on to apply that test. The court held that the magistrates' errors did not fall within any of the three limbs of McC. The mere fact that the Divisional Court set aside the magistrates' decision did not affect the lawfulness of B's detention. Accordingly B's claim failed.

    70. In Perks the seven applicants were committed to prison for failure to pay the community charge. They failed in their claims for breach of Article 5, even though in some instances the magistrates' exercise of discretion had been Wednesbury unreasonable: see paragraph 67 of the court's judgment.

    71. The first successful claims against the UK Government in cases of this character came in 2005. In Lloyd v UK [2005] ECHR 29798/96 a group of individuals who had been committed to prison by magistrates for non-payment of community charge, council tax or non-domestic rates brought claims for breach of Article 5. The court set out the three possible basis of liability, namely McC limb 1, McC limb 2 and McC limb 3. In Lloyd twenty six applicants succeeded on the basis of one or other of those three limbs. In fourteen cases magistrates had committed individuals to prison in their absence, without being satisfied that those individuals had received proper notice of the hearing. The court held that that amounted to a "gross and obvious irregularity" of procedure within McC limb 2.

    72. In Harkmann v Estonia [2006] ECHR 2192/03 the Strasbourg Court explained the structure and operation of Article 5. That provision contains an exhaustive list of permissible grounds for deprivation of liberty. Detention may be justified on the basis of more than one sub-paragraph of Article 5(1). But if none of those sub-paragraphs covers the case, then X's detention is unlawful.

    73. In Garabayev v Russia (2009) 49 EHRR 12 G was arrested in Moscow, detained and then extradited to Turkmenistan on criminal charges. Under Russian law the whole process was unlawful because G was a Russian national. The Strasbourg Court held that Russia was in breach of Article 5(1)(f). The court stated at paragraph 89 of its judgment:

    "…The Court considers that the procedural flaw in the order authorising the applicant's detention was so fundamental as to render it arbitrary and ex facie invalid."

    74. In Saadi v United Kingdom (2008) 47 EHRR 17, S was an Iraqi Kurd claiming asylum in the UK. He was detained at Oakington Reception Centre for seven days and subsequently challenged the legality of his detention. The Strasbourg Court held that there was a breach of Article 5(2) (duty to explain the reason for arrest) but no breach of Article 5(1). The court took the opportunity to elaborate on the types of conduct which would constitute a breach of Article 5(1). At [68] – [71] the court said:

    "While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute "arbitrariness" for the purposes of Art.5(1), key principles have been developed on a case-by-case basis. It is moreover clear from the case law that the notion of arbitrariness in the context of Art.5 varies to a certain extent depending on the type of detention involved.

    One general principle established in the case law is that detention will be "arbitrary" where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Art.5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.

    The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance.

    The Court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under Art.5(1)(a), where, in the absence of bad faith or one of the other grounds set out at [69] above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under Art.5(1)."

    75. In Hammerton v Ministry of Justice [2009] EWHC 1423 (QB), a claim for breach of ECHR Article 5(1) came before the High Court in England. H was subject to an order not to contact or molest his former wife. He committed numerous breaches of that order. At a hearing on 27th July 2005 in the Central London County Court, HH Judge Collins held that H was in contempt of court and committed him to prison for three months. The judge made a series of errors. In particular, he did not adjourn while H's application for legal aid was under consideration. He dealt with H's application for contact with the children at the same time as the committal proceedings. That meant H had no choice about whether to give evidence. The judge made findings of contempt and proceeded immediately to sentence, without giving H any chance to make submissions in mitigation.

    76. After serving his sentence H appealed to the Court of Appeal. The Court of Appeal quashed both the finding of contempt and the sentence on the grounds of the procedural errors. H subsequently brought a claim against the Ministry of Justice for breach of section 6 of the HRA and ECHR Article 5(1). Blake J reviewed the Strasbourg jurisprudence, including Benham, Perks, Lloyd and Saadi. He concluded that the errors by HH Judge Collins did not amount to "gross and obvious irregularity". Accordingly he dismissed the claim: see Blake J's reasoning at [64] – [65].

    77. Five months later, in July 2009, the Grand Chamber of the Strasbourg Court reviewed this whole area of law in Mooren v Germany (2010) 50 EHRR 23. M was detained by court order pending a tax investigation. The Grand Chamber by a majority of 9:8 held that there had been no breach of Article 5(1). The Grand Chamber expounded the relevant principles as follows:

    "(i) Recapitulation of the relevant principles

    72. Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty.

    - Recapitulation of the relevant principles: Principles governing the examination of compliance with domestic law

    73. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with.

    74. However, the Court has clarified, particularly in its more recent case-law, that not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, "lawful" if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention.

    75. In its more recent case-law, the Court, referring to a comparable distinction made under English law, further specified the circumstances under which the detention remained lawful in the said underlying period for the purposes of Article 5 § 1: For the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a "gross and obvious irregularity" in the exceptional sense indicated by the Court's case-law. Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings.

    - The required quality of domestic law

    76. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. In laying down that any deprivation of liberty must be "lawful" and be effected "in accordance with a procedure prescribed by law", Article 5

    § 1 does not merely refer back to domestic law; like the expressions "in accordance with the law" and "prescribed by law" in the second paragraphs of Articles 8 to 11, it also relates to the "quality of the law", requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. "Quality of the law" in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness."

    78. In a series of subsequent cases the Strasbourg Court applied those principles and held that the detention of the individuals concerned had been in breach of Article 5(1): See Beiere v Latvia [2011] 30954/05, Niyazov v Russia [2012] 27843/11 and Gatt v Malta (2014) 58 EHRR 32. I need not rehearse the details of Beiere and Niyazov, except to note that in Niyazov the court adopted a cumulative approach. In considering whether there had been a breach of Article 5(1)(f) the court stated at [180]:

    "180. Making a global assessment of the above-mentioned elements, that is, the domestic court's failure to establish the facts of the case in their entirety, coupled with the applicant's inability to defend himself in person on 4 May 2011 and the failure to specify the reasons or time-limits for the applicant's detention, the Court considers that the procedural flaws in the first-instance court's decisions authorising the applicant's detention, taken cumulatively, were so fundamental as to render them arbitrary and ex facie invalid."

    79. In Gatt G was sent to prison for five and a half years for failing to comply with a payment order in the sum of 23,300 euros. The Government of Malta optimistically contended that the detention was lawful under Article 5(1)(b). The Strasbourg Court rejected that defence. At [40] – [42] the court said:

    "40. The Court reiterates that Article 5 § 1 of the Convention requires in the first place that the detention be "lawful", which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order. However, the domestic authorities must strike a fair balance between the importance in a democratic society of securing compliance with a lawful order of a court, and the importance of the right to liberty. The Court considers that in such circumstances issues such as the purpose of the order, the feasibility of compliance with the order, and the duration of the detention are matters to be taken into consideration. The issue of proportionality assumes particular significance in the overall scheme of things.

    41. The Court observes that it is not in dispute that the detention was ordered by the domestic courts pursuant to Article 585 and that the length of the detention was stipulated on the basis of Article 586 of the [Criminal Code]. It remains to be determined whether the measure in question was proportionate.

    42. The purpose of the court order was to secure payment of an amount due to the authorities by way of a penalty for breaching bail conditions. The Court considers that monetary guarantees are indispensable to ensure respect for the right to liberty when considering remand in custody. It notes however that in 2006 the applicant was indigent and unable to pay the said amount, although he might have been able to do so when he assented to the obligation in 2001. Indeed, it would have been reasonable for the applicant to assume that the proceedings against him would not have lasted over five years. The Court observes that the applicant had been under strict bail conditions for nearly five years. Thus, it is plausible to conclude that he had been unable to earn a living during that period. In such circumstances, it was unrealistic to expect that the applicant would be able to comply with the court order."

    80. More recently there have been two claims against the Lord Chancellor for unlawful detention contrary to ECHR Article 5. In Wright v Lord Chancellor [2015] EWHC 1477 (QB) W received an extended sentence of 3 years 6 months imprisonment with an extension period of 5 years. After serving that sentence W appealed to the Court of Appeal. The Court of Appeal quashed the original sentence and substituted a determinate sentence of 3 years 6 months. W brought a claim for damages under sections 6 and 7 of the HRA, alleging that his extended sentence was a breach of ECHR Article 5(1)(a). McGowan J dismissed the claim.

    81. After reviewing the Strasbourg authorities, McGowan J concluded at paragraph 18 that in order to succeed W needed to establish one of the following:

    i) That the court had no jurisdiction over the case.

    ii) That there was a gross and obvious error in the exceptional sense required by the authorities.

    iii) That the court failed to observe a statutory condition precedent. Or

    iv) That the court acted in an arbitrary manner by virtue of bad faith or failing to attempt to apply the law correctly.

    McGowan J held that W could not prove any of those four matters, even though the sentence imposed was unlawful.

    82. In Webster v Lord Chancellor [2015] EWCA Civ 742; [2016] QB 676 W was convicted of rape and sexual assault. He received a sentence of 9 years imprisonment. Some two years later the Court of Appeal quashed W's conviction on the grounds of serious defects in the summing up. W claimed against the Lord Chancellor damages under sections 6 and 7 of the HRA, for breaches of ECHR Articles 5 and 6. Mitting J struck out the claim. W appealed to the Court of Appeal.

    83. The Court of Appeal dismissed W's appeal. Sir Brian Leveson P (with whom Lord Dyson MR and Tomlinson LJ agreed) rejected the suggestion that the judge had acted in bad faith. Turning to Article 5 and the ECHR jurisprudence, Sir Brian referred to the three limbs of the McC test as formulated by the Strasbourg Court. He held that the errors in the summing up fell "far short of being so serious and egregious as to amount to gross and obvious irregularities". Accordingly W's claim could not succeed.

    84. Finally, and after the date of Foskett J's decision in the present case, the Hammerton case came before the Strasbourg Court: see Hammerton v United Kingdom (2016) 63 EHRR 23. The court held that the finding of civil contempt was a "conviction" for the purposes of Article 5(1)(a). Since the foundation of that finding was a previous court order, Article 5(1)(b) was also applicable. See [88] – [90].

    85. In relation to Article 5(1)(a) the court said:

    "(iii) Flagrant denial of justice

    98. The requirement of Article 5 § 1 (a) that a person be "lawfully" detained after "conviction by a competent court" does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of Article 6 of the Convention. However, the Court has also held that if a "conviction" was the result of proceedings which were a "flagrant denial of justice", that is to say were "manifestly contrary to the provisions of Article 6 or the principles embodied therein", the resulting deprivation of liberty would not be justified under Article 5 § 1 (a).

    99. The "flagrant denial of justice" test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures that result in a breach of Article 6 of the Convention. What is required is a breach of the principles of fair trial that is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. Under Article 5 § 1 (a), it is the detention of the person concerned, and not the person's conviction, which has to be lawful. Only if the violation of Article 6 could be said to amount to a "flagrant denial of justice", would Article 5 § 1 (a) be violated. As the purpose of Article 5 is to protect the individual from arbitrariness, a conviction cannot be the result of a flagrant denial of justice."

    86. Turning to the facts, the court held that the errors made by HH Judge Collins did not amount to "gross and obvious irregularity". H's detention was not arbitrary and it did not amount to a "flagrant denial of justice". Accordingly H's detention was justified under Article 5(1)(a). Therefore it was not necessary to examine the position under Article 5(1)(b).

    87. I must confess to some surprise at the last part of that decision. If X's offence consists of non-compliance with a previous court order, I should have thought that it was necessary to look at that previous court order and the feasibility of compliance. Indeed that is what the court said in Gatt. The explanation for this oddity may be that there was no problem with the underlying court order in Hammerton. It was therefore sufficient to focus on whether the court had complied with Article 5(1)(a).

    88. Let me now distil from the authorities the principles which may be relevant to the present appeal:

    (1) A period of detention is lawful if, and only if it complies with the applicable sub-paragraph of Article 5(1).

    (2) In the case of detention under Article 5(1)(b):

    (i) The underlying court order or legal obligation must be one with which it was feasible for X to comply. And

    (ii) The period of detention must be proportionate to that which X was required to do, but failed to do. (See Saadi and Gatt.)

    (3) Detention under Article 5(1)(a) or (b) will not be lawful if:

    (i) The court acted without jurisdiction. Or

    (ii) There was a gross and obvious irregularity in the court's procedure. Or

    (iii) The court made an order that had no proper foundation in law, because of a failure to observe a statutory condition precedent. Or

    (iv) X's detention was arbitrary. In other words the stated grounds for that detention did not comply with the general principle of legal certainty. Or

    (v) There were one or more breaches of Article 6 during the proceedings which were so serious as to amount to a flagrant denial of justice. (See Hammerton at [88] – [89].)

    (4) In considering whether the court's errors amounted to "gross and obvious irregularity" or "flagrant denial of justice", where appropriate their cumulative effect can be considered

    89. In this summary of the principles paragraphs (3)(ii) and (3)(v) cover similar ground. They may even be different ways of saying the same thing.

    90. Having reviewed the authorities, I must now turn to the first three grounds of appeal.

    Part 6 – The first three grounds of appeal

    Ground 1 – Exceptionality

    91. LL contends that Foskett J wrongly introduced an exceptionality requirement into the "gross and obvious irregularity" test. This criticism is directed to paragraphs 22 and 51 of the judgment.

    92. In both of those paragraphs Foskett J put the phrase "quite exceptional" in inverted commas. He did so because he was quoting from a passage in McC upon which both parties placed reliance. The point which Lord Bridge was making in McC, and which subsequent judges have emphasised, is that most mishaps in judicial proceedings leading to imprisonment do not give rise to a breach of Article 5(1). Happily gross and obvious irregularities and flagrant denials of justice are rare events.

    93. In my view Foskett J was doing no more than faithfully directing himself by reference to the authorities. He was not introducing a new threshold of exceptionality. I therefore reject the first ground of appeal.

    Ground 2 – Good faith

    94. Foskett J was correct to say that the errors made by Russell J were inadvertent, rather than deliberate. He was right to say that she was acting in good faith. He was also right to say that counsel for the wife did not give to the judge the help which she was entitled to expect.

    95. The gravamen of Mr Burton's complaint is that Foskett J attached too much weight to these matters in reaching his overall conclusion. I can see that there is a serious issue as to whether Foskett J reached the correct conclusion, but even if he did not, I am not prepared to say that is because he had attached undue weight to the above factors.

    Ground 3 – The fact that LL might have been committed for contempt, absent procedural errors

    96. Foskett J noted in paragraphs 44 and 53 that if events had taken a different course and the judge had followed the correct procedures, the result might have been a lawful committal to prison for contempt. As a matter of fact, that is correct. LL failed to secure the return of M to this jurisdiction, as ordered by the court. If there had been further investigation and if the judge had conducted a proper process, collusion between LL and his parents might have been proved to the criminal standard. Alternatively, the court might have made more specific and realistic orders. If LL had not complied, he might have faced a well-founded application for committal for contempt.

    97. Accordingly Foskett J's observations in paragraphs 44 and 53 of his judgment were proper comments to make and they had some relevance. If the judge reached the wrong conclusion, I am not prepared to say that it was because he attached too much weight to these factors.

    98. Let me now draw the threads together. I do not accept that grounds 1, 2 and 3 provide any basis for allowing the appeal. I will, however, bear those matters in mind when addressing ground 4, which is the central issue in this appeal. Both counsel focused most of their attention on ground 4. I shall do likewise.

    Part 7 – Ground 4: Did the procedural errors made by Ms Justice Russell amount to "gross and obvious irregularity"?

    99. Mr Burton contends that the errors made by Ms Justice Russell, as identified by the Court of Appeal in its judgment of 15th July 2014, amounted to "gross and obvious irregularity", as that phrase has been used in the authorities. Therefore there has been a breach of the ECHR Article 5(1). Foskett J was wrong to hold otherwise.

    100. Mr Burton identifies and relies upon six errors made by Russell J, namely:

    i) Including recital E in the 19th March order. This recital was not, and on the evidence before the court could not be, an order. It was simply a source of confusion.

    ii) Failure to recuse herself on the grounds of apparent pre-determination.

    iii) Requiring LL to give evidence, instead of warning him that he need not give evidence; then plunging straight in to cross-examination without permitting any evidence-in-chief.

    iv) Conflating non-compliance with the orders of 14th, 19th and 21st March with deliberate non-compliance; relying upon LL's failure to secure M's return to the UK by 28th March by means of proceedings in the Singapore courts, when that was not possible.

    v) Non-compliance with ECHR Article 6 in the committal proceedings.

    vi) Giving LL no opportunity to make submissions in mitigation before the judge passed sentence.

    101. In answer to Longmore LJ, Mr Burton conceded that error (v) overlapped with, and added nothing to, errors (i), (ii), (iii), (iv) and (vi). Error (v) therefore drops out of the picture.

    102. Mr Sanders on behalf of the Lord Chancellor accepted that errors (i), (ii), (iii), (iv) and (vi) occurred. Indeed, when pressed by the court, he conceded that they were serious. But, said Mr Sanders, these errors did not cross the line. They were not "gross and obvious irregularities". They did not give rise to a "flagrant denial of justice". Nor was LL's detention arbitrary.

    103. Both counsel took the court through the authorities, highlighting particular passages. I have identified in Part 5 above what seem to me to be the main authorities and statements of principle. I hope I shall be forgiven for not repeating the tours through the authorities bundle upon which both counsel embarked.

    104. There has been some discussion about whether an accumulation of errors can constitute "gross and obvious irregularity", even if no individual error in the group was so serious as to merit that description. In my view it is appropriate to look cumulatively at errors which are linked. In the present case error (i) led to error (iv), so that those two matters are closely linked. Error (ii) led into errors (iii), (iv) and (vi). If the judge had recused herself, another judge would have stepped in and, would no doubt, have avoided falling into the later traps. Errors (iii) and (iv) are linked because, if the judge had dealt with the evidence properly, she may have realised that deliberate breach had not been proved. I therefore come to the conclusion that errors (i), (ii), (iii), (iv) and (vi) are so closely linked that it is appropriate to look at them cumulatively.

    105. The next issue debated between counsel is whether this case is any worse than the earlier cases, in which claims against the Lord Chancellor for breach of Article 5(1) have failed. Mr Sanders submits that Hammerton is very like our case. He points out that H's claim against the Lord Chancellor failed in Hammerton. I accept that there is some overlap. The judge in Hammerton committed errors similar to errors (iii) and (vi) in our case. On the other hand, as Mr Burton points out, HH Judge Collins did not commit any egregious errors comparable to errors (i) and (iv) in our case.

    106. I have come to the conclusion that a close comparison between the reported cases and the facts of this case is not a useful exercise. For what it is worth, however, the authorities relied upon by Mr Sanders do not seem to me to be as serious as the present case.

    107. Mr Sanders submits that Russell J's errors were corrected on appeal. LL is not entitled to any further remedy. That submission begs the question. LL will be entitled to a further remedy if the Lord Chancellor cannot justify LL's detention under Article 5(1).

    108. The final issue to consider is really the crucial question. Do errors (i), (ii), (iii), (iv) and (vi) collectively amount to "gross and obvious irregularity"? In my view they do.

    109. For a judge to include a veiled instruction within a recital, which cannot be complied with, and then to commit the respondent to prison for non-compliance is a "gross irregularity". All the more so, when one takes into account the other linked errors. The word "obvious" in this context means obvious to anyone familiar with normal court procedure. In that sense all five errors enumerated above were obvious.

    110. Having reached that conclusion, I do not need to consider whether a "flagrant denial of justice" occurred, if and in so far as that phrase imports a different test. Therefore I do not address that question.

    111. It follows from the foregoing that the defendant cannot justify LL's detention under Article 5(1)(a) or (b).

    112. Let me now draw the threads together. In respectful disagreement with Foskett J, I consider that the errors made by Russell J did cross the line. I would therefore allow the appeal on ground (iv). My answer to the question posed in this part of the judgment is yes.

    Part 8 – Executive Summary and Conclusion

    113. On 3rd April 2014 Ms Justice Russell found LL guilty of contempt of court and sentenced him to 18 months imprisonment. On 4th June 2014 the Court of Appeal quashed that decision and ordered LL's immediate release.

    114. LL claims damages against the Lord Chancellor for unlawful detention, contrary to ECHR Article 5. It is common ground that in the circumstances of this case LL can only succeed if he establishes that the judge's errors constituted "gross and obvious irregularity".

    115. Foskett J held that Russell J's errors did not cross that high threshold. I take the opposite view. Although I regret the need to make such a finding about any High Court judge, I consider that Russell J's errors did amount to "gross and obvious irregularity". I would therefore allow LL's appeal against the judgment of Foskett J.

    Lady Justice King :

    116. I agree that this appeal should be allowed for the reasons given by Lord Justice Jackson and would, in particular, wish to associate myself with the observations he made at paragraph 9 of his judgment in relation to the task of the family judge. The work undertaken by the family judges is unremitting and takes a particular toll on those judges who have a diet made up largely of care cases.

    117. The present case concerns a High Court Judge. High Court Judges assigned to the Family Division however represent only the tip of the family law iceberg. Up and down the country in each and every Family Court there are scores of Magistrates, District Judges and Circuit Judges hearing family cases covering the wide range of work over which they have jurisdiction.

    118. District Judges for example have a constant stream of litigants in person; as a consequence there is often no lawyer in court to assist the District Judge to put right any of the errors, procedural or otherwise, which he or she may inadvertently make. Such errors are, from time to time, inevitable given the breadth of the jurisdiction with which judges are dealing. Circuit Judges also often have unrepresented litigants, but they have the burden of hearing the longer cases, often listed back to back; in addition, they are not infrequently allocated High Court cases which are released to them for trial due to the difficulty in having cases listed in front of High Court Judges within a reasonable length of time.

    119. I would not wish the outcome of this very unusual case to add to the burdens of the family judge or indeed, any judge. Judges at any level have no cause to fear that this judgment represents the 'thin end of the wedge' and that they must now regard themselves as vulnerable in a way that they were not hitherto; further they should not be apprehensive that the consequence of this decision is that, in some way, the important policy concept of judicial immunity has been undermined or eroded. It has not.

    120. This case turns on its own exceptional facts relating to the cumulative effect of a number of serious errors which in turn impacted upon the liberty of the subject. Almost every error made by a judge will continue to be put right by an appeal court, and there will be no question of it resulting in litigation of this type. As Lord Justice Jackson said at paragraph 92:

    "….most mishaps in judicial proceedings leading to imprisonment do not give rise to a breach of Article 5(1). Happily gross and obvious irregularities and flagrant denials of justice are rare events".

    Lord Justice Longmore :

    121. I agree with both judgments and would emphasise what an unusual and (I hope) unrepeatable case this is. I would not myself say that the initial irregularities perpetrated by the judge were "gross and obvious", namely her failure to inform LL that he need not give evidence if he did not wish to do so and her failure to allow him to give evidence in chief. But those failures form the context in which, to my mind, the worst irregularity occurred namely sending LL to prison for breach of an order she had never made but had, at best, incorporated as an aspiration in the recital to her order of 21st March 2014. This was followed by the further irregularity of the failure to afford an opportunity to mitigate sentence. It is this accumulation of irregularities that makes this case cross the boundary between ordinary appealable error on the one hand and gross and obvious irregularity on the other. One has to ask oneself what (apart from actual bias properly proved) would constitute gross and obvious irregularity if this combination of irregularities did not. That is not a question I can answer with any confidence.

    122. I therefore agree with my Lord and my Lady that this appeal must be allowed.



Published: 11/04/2017

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