Begraj v Secretary of State for Justice  EWHC 250 (QB) – Read judgment
Adam Wagner acted for the Secretary of State in this case. He is not the author of this post.
The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.
The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights.
Caste discrimination claim
The Appellants had brought an employment claim against a firm of solicitors. That claim, though not of direct relevance to this judgment, was of general interest because it was the first in the United Kingdom to concern allegations of discrimination on the grounds of caste.
The employment judge hearing the claim, after approximately 30 days of evidence between August 2011 and January 2013, recused herself on 6 February 2013 on the application of the defendant firm. She held that the test for apparent bias had been satisfied by her having met with police officers at their request and in good faith on the morning of 19 October 2012 to discuss matters of relevance to the case. She had informed the parties of this meeting a week later.
The Employment Appeal Tribunal rejected an appeal against the recusal decision brought by the Appellants, who could not afford the re-hearing of their claim before the employment tribunal. They therefore brought a claim against the Secretary of State for Justice pursuant to section 6 HRA 1998, alleging that there had been a failure to provide a fair and impartial tribunal and therefore a breach of Article 6 ECHR through the conduct of the employment judge in agreeing to meet with the police officers.
The Secretary of State applied to strike out the claim, arguing that when meeting with the police officers the employment judge had been carrying out a “judicial act”, which meant that the claim fell within the immunity provided for in section 9(3) HRA:
“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.” (emphasis added)
In September 2014, District Judge Shorthose struck the claim out on that basis, accepting that the term “judicial act” should be defined with sufficient breadth so as to encompass the actions of the employment judge. He also accepted the Secretary of State’s second main argument that the claim was in reality a collateral attack on the decision of the EAT to dismiss the appeal against the employment judge’s recusal decision, as Article 6 ECHR arguments had been ventilated by the Appellants in the course of that appeal.
On appeal against DJ Shorthose’s decision, the Appellants contended that:
- Their claim was inherently unsuitable for strike-out as the law relating to the breadth of the concept of a “judicial act” was complex and novel.
- The scope of the section 9(3) HRA 1998 immunity, and the concept of “judicial act” in particular, should be read narrowly so as to allow a party in the Appellants’ position to obtain an effective remedy under Article 13 ECHR.
- District Judge Shorthose was wrong to consider the employment judge’s actions to be a “judicial act”, and she was not engaged in the tribunal’s proceedings when she met with the police officers and her actions in doing so could not be appealed.
- The claim was not a collateral attack on the EAT’s decision.
His Honour Judge McKenna dismissed the appeal.
His decision rested to a large degree on his conclusions on grounds (ii) and (iii) above, which he considered together. He noted that the state’s immunity for liability in tort for the actions of judges under section 2 Crown Proceedings Act (CPA) 1947 was very broad. On that basis, he held that the immunity under section 9(3) HRA must also be very broad, as the purpose of that provision was to preserve the section 2 CPA 1947 position in the context of human rights damages claims against the state. In any event, the Appellants could not rely on Article 13 ECHR as it was not incorporated into English law, and section 9(3) could not bear the narrow interpretation for which the Appellants contended.
HHJ McKenna also made the important point, relying on Strasbourg authority and the Court of Appeal case of In Re Medicaments and related classes of goods (No.4)  1 WLR 269, that on the facts there had in fact been no breach of Article 6 ECHR in any event. The state had not failed to provide an impartial tribunal as the very act of recusal by the employment judge ensured that the claim could be heard before such a tribunal.
It followed that he also found for the Secretary state in relation to ground (i); the meaning of section 9(3) is clear and of broad application, and the Appellants’ case merely concerned a straightforward but novel set of facts.
Finally, HHJ McKenna agreed with DJ Shorthose that the claim was a collateral attack on the EAT’s recusal decision.
The claim based on the state’s failure to provide an impartial tribunal was destined to fail as, leaving aside the interpretation of “judicial act”, there was evidently no Article 6 breach by way of a failure to provide an impartial tribunal. Indeed, by recusing herself the employment judge avoided the determination of the parties’ rights by a tribunal which would have had an appearance of partiality. The state could provide an impartial tribunal, but the difficulty for the Appellants was their inability to continue to fund their claim and therefore to access justice. That is a plight with which many would sympathise at present.
That issue aside, the appropriateness of defining “judicial act” very broadly for the purposes of section 9(3) HRA 1998 on the basis that that section should mimic section 2 CPA 1947 might be questioned. As HHJ McKenna noted, section 2 CPA 1947 expressly provides that the state’s liability in tort for the actions of judges and other servants only arises where it is possible to hold such individual servants personally liable for those actions. Therefore, because of the understandably wide definition of personal judicial immunity as seminally set out in Sirros v Moore  1 QB 118, only in extreme circumstances will the state be liable in tort for the acts of judges.
The definition of “judicial act” in section 9(3) HRA is not tied to personal judicial immunity in the same manner, and nor need it be, as it is axiomatic that an action cannot be brought against a judge in a personal capacity under that Act. When this is acknowledged, it might be thought that the logic of defining “judicial act” broadly for the purposes of section 9(3) HRA in order to reflect the breadth of the state immunity for judicial actions in section 2 CPA 1947 breaks down somewhat.
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