A recent decision by the Court of Appeal serves as an important reminder that it is vital to consider the exact nature of a particular court or tribunal’s jurisdiction carefully when deciding whether to initiate proceedings. Consideration should be given to whether the relief sought can be best achieved through a statutory appeal, judicial review or human rights claim.

The court considered appeals in two separate cases together which concern the detention of patients under the Mental Health Act 1983 (“MHA 1983”). A central issue in both cases was the jurisdiction of the First-tier Tribunal in England and the Mental Health Review Tribunal for Wales and their ability to set conditions that would amount to a deprivation of liberty.

The Court allowed the appeals and set aside declarations made by the Upper Tribunal (Administrative Appeals Chamber) noting that there is nothing in particular in the general role and function of a tribunal that permits it to exercise a function that it does not have by statute. In the particular circumstances, the Court determined that neither the Human Rights Act 1998 nor the European Convention on Human Rights (“ECHR”) confer jurisdiction on a tribunal and the tribunals had no jurisdiction to scrutinise whether the orders in question were compatible with the human rights of the patients in question under the ECHR.

While the judgment has specific and likely contentious consequences in the particular context of deprivation of liberty cases, it serves as a reminder that when contemplating litigation, it is critical to carefully consider the jurisdiction of a particular court or tribunal in the specific context of the matter complained of.

It further highlights the issue that troubled the Court of Appeal in Watch Tower Bible & Tract Society of Britain & Others v The Charity Commission [2016] EWCA Civ 154 last year, whereby it was determined – even though the obvious inconvenience of bifurcating the case (dividing the issues in the case into two separate legal claims made in different forums) was noted – that the scope of the right of appeal to the First-tier Tribunal must depend on the true meaning and effect of the provision which confers the right of appeal: if a specific ground falls outside the scope for appeal to the tribunal, it needs to be considered by judicial review. Similarly, if an application is made for judicial review and there exists a right to statutory review before a tribunal in relation to a particular ground, the Court could decline to consider that ground on the basis that other means of redress are ‘conveniently and effectively’ available.

Now, it seems, the implication is the same in relation to human rights.

As such, where a complaint arises in relation to a regulator’s or other public body’s decision, it will be critically important to consider the following where a particular decision raises a mixed bag of potential legal grounds:

  • Nature of the power and route of statutory appeal: what is capable of appeal to the First-tier Tribunal and by whom? Is the complaint about the actual decision taken, the way it was taken or its implications in relation to human rights? Has the potential claimant exhausted alternative remedies in relation to the issues it now complains of?
  • Desired outcome: what remedy would be effective in the particular circumstances?
          o To have the discrete decision itself considered on its merits and re-taken by a third party?
          o To publicise an issue of public importance and obtain a declaration in relation to the limits of a particular public body’s powers in taking certain categories of decisions?
          o To obtain damages in relation to a particular incident?
  • Costs: It is a rare occasion for money to be no object in litigation. The position in relation to costs is different in each forum with the usual position being that each side bears its own costs in the First-tier Tribunal, and the loser paying in court. Legal Aid/CFAs aside, are also means for funding litigation that are available for judicial review once permission to proceed is granted (see here); as well the potential for crowd funding where the matter relates to public benefit or the complainant is likely to evoke public sympathy (see https://www.crowdjustice.com/).

In view of the time limits in relation to different routes of recourse, and obtaining funding, it will be important to seek advice promptly in relation to the most advantageous means of bringing a claim or appeal in the particular circumstances of the case.


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Emma Dowden-Teale

Partner

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+44(0)20 7551 7890

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e.dowden-teale@bwbllp.com
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Sophie Lloyd

Associate

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+44(0)20 7551 7913

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sv.lloyd@bwbllp.com
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Posted on 04/05/2017 in Legal Updates

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