The lord chancellor will face a claim for damages after the Court of Appeal accepted a judge made errors amounting to a ‘gross and obvious irregularity’.
In a unanimous judgment in LL v The Lord Chancellor, appeal court judges said the case turned on the ‘cumulative effect of a number of serious errors which in turn impacted on the liberty of the subject’.
The dispute, which stems from the Family Division of the High Court, centred on a man referred to as LL who claims he was wrongfully imprisoned.
In April 2014, in a judgment handed down by The Honourable Ms Justice Russell, the court found LL guilty of contempt and he was sentenced to 18 months in prison.
However, the appeal court quashed the conviction in June that year, prompting his immediate release.
After the conviction was quashed, LL claimed damages against the lord chancellor for unlawful detention, claiming his imprisonment contravened Article 5 of the European Convention on Human Rights.
The lord chancellor’s office claimed it did not have liability and that LL was entitled to no remedy other than a successful appeal, which had already been achieved.
In a High Court ruling handed down in November 2015, The Right Honourable Mr Justice Foskett dismissed LL’s claims.
Ruling that the lord chancellor could only be held liable for a breach of the ECHR if a judge’s conduct amounted to ‘gross and obvious irregularity’ he said Russell’s errors, although serious, did not cross that threshold.
That judgment has now been overturned.
According to LL, Russell’s failures included: failing to recuse herself on the grounds of apparent pre-determination; requiring LL to give evidence instead of warning him that he need not give evidence; and then plunging into cross-examination without permitting any evidence in chief. LL was also given no opportunity to make submissions in mitigation before the judge passed sentence, he alleged.
Oliver Sanders QC, representing the lord chancellor, accepted the errors had occurred but argued that they did not cross the line into ‘gross and obvious irregularity’.
However, Lord Justice Jackson said that although he regretted making such a finding against a High Court judge, the errors did pass that threshold.
‘The word “obvious” in this context means obvious to anyone familiar with normal court procedure. In that sense all five errors were obvious,’ he added.
Agreeing, Lady Justice King said judges should not be fearful as a result of this ‘very unusual’ case, and nor should it add to a judge’s burdens.
‘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,’ she said.
‘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.’
LL was represented by Hodge Jones & Allen. The lord chancellor was represented by the Treasury Solicitor.