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Judgment Approved
Lord Justice Jackson :
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
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 .
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.
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.
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.
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.
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Subsection (1) does not apply to an act if –
as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
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.
In this section “public authority” includes –
a court or tribunal, and