COMPENSATION FOR A ‘JUDICIAL ACT’?

Claims against a public authority: Human Rights Act 1998

Occasionally a lawyer is so outraged at the court’s treatment of a case that s/he is tempted to advise suing for a client’s losses caused by the court’s treatment of a case. Administrative errors by HMCTS may attract a claim. Judicial acts almost certainly will not (for reasons explained by Lord Denning MR below).

Human Rights Act 1998 seems to make a claim possible. Section 6(1) says that it is unlawful for a public authority to act in a way which is incompatible with a European Convention 1950 right (such as to a fair trial: Art 6(1)); if a person claims to be the ‘victim’ of an act which is unlawful under s 6(1) s/he can claim against the public authority (s 7(1)); and ‘public authority’ includes a court (s 6(3)(a)). HRA 1998 s 9(1) makes specific provision for claims for ‘judicial acts’ as claims under s 7(1)(a); but then s 9(3) (as explained below) sets the gate through which the claimant must pass almost impossibly narrow.

Judicial immunity from suit

In a clear and economically expressed judgment in Begraj & anor v Secretary of State for Justice [2015] EWHC 250 (QB), His Honour Judge KcKenna sitting in Birmingham as a High Court judge explains clearly why a s 9 claim is so difficult. The modern law on personal immunity to suit of judges to suit can be traced (uninterrupted by HRA 1998) to Lord Denning MR in Sirros v Moore [1975] 1 QB 118. This case, says the judge:

[21]… is the leading authority on the personal immunity of judges. In that case, it was held that judges have complete immunity for any act that is within their jurisdiction or which they honestly believe to be within their jurisdiction. It is plain that a very wide interpretation of what are protected acts was given.

As the judge explains, Sirros says (at 132D):

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and or uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse the ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

Lord Denning MR went on (at 135C) to set out what he described as ‘the test’ for judicial immunity:

… A judge of the superior court is not liable for anything done by him while ‘he is acting as a judge’ or ‘doing a judicial act’ or ‘acting judicially’ or ‘in the execution of his office’ or ‘quatenus a judge’. What do all these mean? They are much wider than the expression ‘when he is acting within his jurisdiction’. I think that each of the expressions means that a judge of the superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, or he may be mistaken in that belief and may not in truth have any jurisdiction. No matter that his mistake is not one of fact but of law (as in Bushell’s Case, 1671 Vaughan 125) nevertheless he is protected if he in good faith believes that his jurisdiction to do what he does.

Meaning of ‘judicial act’

Begraj & anor v Secretary of State for Justice (above) was a long-running (around 30 hearing days) in the Employment Tribunal where staff of solicitors were making various discrimination claims. Police asked to see the judge, which she agreed to; and then she told the parties representatives. The respondent to the employment case applied for recusal of the judge, opposed by the Begrajs. The tribunal recused itself. Following an unsuccessful appeal from that decision, the Begrajs applied for damages for the costs thrown away as a result of another tribunal now having to hear the case all over again. They argued that speaking with the police was outside the definition of a judicial act as defined by HRA 1998 s 9(5) as:

“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge;…

A district judge dismissed the Bergraj’s case as disclosing no reasonable grounds for bringing a claim and an abuse of the court’s process (CPR 1998 r 3.4(2)(a) and (b)). On appeal from the district judge, Judge McKenna was taken to HRA 1998 s 9(3) which exempts from compensation claims all judicial acts done ‘in good faith’.

Judicial act: not appealable

The Bergaj’s sought to persuade the judge that where a judicial act was not appealable, then it was outside the cover provided by s 9(3). On this issue and the question of what is a judicial act, Judge McKenna rejected the Bergraj’s case:

[20] … As it seems to me, the scope of the immunity under section 9 (3) HRA 1998 and the concept of judicial act in particular must, in the light of the authorities, be given a broad definition. As counsel for the Secretary of State submitted, under section 2 (1) CPA 1947 the State’s liability in tort to the actions of its servants only arises where it would be possible to hold the officer personally liable for that tort and as the purpose of section 9 (3) HRA 1998 is to preserve the section 2(5) CPA 1947 position in the context of human rights damages claims, it must be the case that where a judge would benefit from judicial immunity in respect of a particular act the State cannot be liable under s.9(3) of HRA 1998.

Had Parliament intended judicial acts only to be those which are appealable, said the judge, it could have said so ‘expressly. It did not’ (para 23). It will be rare case that a case gets past HRA 1998 s 9(3), as Bergaj and His Honour Judge McKenna shows.

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2 thoughts on “COMPENSATION FOR A ‘JUDICIAL ACT’?

  1. DB – Do you think that a tribunal member acts outside jurisdiction if he only has power to determine an issue without a hearing if the parties consent – and yet despite the parties not consenting – he purports to determine the issue anyway? I.e. he has jurisdiction when acting within his powers but not when deliberately acting outside? Or is jurisdiction just the subject matter of the cause?

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