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Human Rights Act: HRA damages against Lord Chancellor for high court’s gross and obvious irregularity

In LL v The Lord Chancellor [2017] EWCA Civ 237, the Court of Appeal held the applicant entitled to HRA damages for his committal to prison by Ms. Justice Russell because her errors cumulatively amounted to “gross and obvious irregularity”.

LL and his wife (“W”), voluntarily left their 12 month old son, M, with his parents in Singapore whilst H worked, and W learned English, full time in the UK.  Following marital difficulties they returned there for a holiday after 5 months.  LL, without telling W, resigned his London job, issuing Singapore divorce/custody proceedings.  W (from Singapore) brought UK wardship proceedings, several hearings taking place before Russell J. who sought to compel LL to return M to the UK, despite LL’s parents refusing to release M from their custody.  This judge committed him to prison for 18 months.  After 9 weeks, the committal was quashed (Re. K [2014] EWCA Civ 237), on grounds including that:

  • a Recital expecting LL to apply to Singapore courts read like an Order, and not one which the court had any jurisdiction to make;
  • she wrongly refused to recuse herself: her “robustness” in earlier hearings had made it inappropriate for her to preside over the committal;
  • LL was never informed of his right to silence, but instead was required to give evidence, and then immediately cross-examined without being given the chance to tell his side of the story first;
  • the lack of evidence on a balance of probabilities to show collusion between LL and his parents, nor to establish that LL could have obtained a Singapore court order; an irrelevant application had been considered; and no finding was made that any breach was deliberate. 

In LL, the CA took trouble to mention the difficulties experienced by family judges: it might instead have been more appropriate to voice greater concern about judicial detachment as exposed by this (infrequent) spotlight on the workings of that Division.

This summary is no substitute for reading the complete fascinating facts, but - improbably, given that he was a JP Morgan employee! -  one ends up rather sympathetic to LL.  One is left wondering how well the events have really served M’s interests?

Lawrence Caun / 26th Apr 2017


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