England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR L BLOHM QC (sitting as a Deputy High Court Judge)
HC13A00716

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 July 2015

Lord Justice Sales:

Introduction

1. This is an appeal from the judgment of Mr L. Blohm QC, sitting as a Deputy Judge of the High Court, by which he struck out the appellant's claim for a payment under the law of restitution of £80,000 and damages for false imprisonment in relation to a period of two days which he spent in prison. The claim in restitution relates to payments totalling that amount which he made in 2007 (when £75,000 was paid) and 2009 (when £5,000 was paid) pursuant to a confiscation order made by the court in 2000 in criminal proceedings against the appellant. The claim for false imprisonment relates to a period spent in prison in 2009 when the appellant was committed to prison for failing to pay the sum due under the confiscation order; he was released when he paid the balance of the sum due under the order. Many of the matters relied on happened long ago, before various organisational changes affecting the respondents. For ease of reference I refer to the first respondent and their predecessor bodies as "HMRC" and to the second respondent and its predecessor bodies as "the CPS".
2. Prior to making the payments, the appellant brought an appeal against the confiscation order. His principal argument was that by virtue of section 72A of the Criminal Justice Act 1988 and the lapse of time after his conviction before the confiscation order was made, it had been made without jurisdiction. The appeal was stayed behind other cases on appeal to the House of Lords which raised the same issue. In July 2005, the House of Lords decided the point of law in a way adverse to the appellant: see R v Soneji [2005] UKHL 49; [2006] 1 AC 368 and R v Knights [2005] UKHL 50; [2006] 1 AC 340. The appellant's appeal against the confiscation order was then dismissed by the Court of Appeal (Criminal Division) in February 2006: R v Minshall [2006] EWCA Crim 987. That Court declined to certify a point of law of general public importance, so the appellant was unable to pursue his appeal any further within the domestic legal system.
3. The appellant promptly exercised his right of application to the European Court of Human Rights ("ECtHR") to complain that his rights under Article 6 and Article 7 of the European Convention on Human Rights ("ECHR") had been violated in certain ways, including by the delay in achieving that result at the domestic level. In December 2011 the Fourth Section of the ECtHR delivered a judgment in which it found that the United Kingdom had violated the appellant's Convention rights under Article 6(1) of the ECHR so far as concerned his right to a determination within a reasonable time, by reason of the delay of about two years while the appellant's appeal was stayed pending the decision of the House of Lords in R v Soneji: Minshall v United Kingdom (2012) 55 EHRR 36. His other complaints were dismissed.
4. Meanwhile, after permission to appeal to challenge the making of the confiscation order in the appellant's case had been refused, the CPS took steps in the magistrates' court to enforce it. The appellant commenced further proceedings in the domestic courts in the form of an application for judicial review to challenge the enforcement of the confiscation order. His claim for judicial review was dismissed by Pitchford J in 2008: R (Minshall) v Marylebone Magistrates' Court [2008] EWHC 2800 (Admin); [2010] 1 WLR 590. In the course of his judgment, delivered well before the judgment of the ECtHR in Minshall v United Kingdom, Pitchford J expressed the view that there had been no breach of the reasonable time requirement under Article 6(1) by reason of the delay in waiting for the final decisions of the House of Lords in R v Soneji and R v Knights. Permission to appeal was refused. As a result of Pitchford J's ruling enforcement of the confiscation order could proceed.
5. In 2009, having failed to pay the balance due under the confiscation order, the appellant was committed to prison and detained for two days. He then paid the balance due and was released.
6. In 2013 the appellant commenced the present proceedings in the Chancery Division. In these proceedings he claims that the decision of Pitchford J to allow enforcement of the confiscation order to proceed was made in error, by reason of the difference of view between the judge and the ECtHR regarding the significance of the delay before the House of Lords decisions in R v Soneji and R v Knights; that the appellant paid the sum due under the confiscation order by reason of a mistake of law that the order was being enforced without violation of his Convention rights; and that by reason of the error of the domestic court as to the enforceability of the confiscation order, he could not lawfully have been imprisoned in enforcement of the order and therefore is entitled to claim damages for false imprisonment.
7. The deputy judge found that the claim disclosed no arguable claim in law and so struck it out. Vos LJ granted permission to appeal. At the hearing before us, we heard full argument from Mr Clayton QC for the appellant in opening the appeal. At the end of the opening, we considered that the claim and the appeal were unsustainable and indicated that we did not need to hear from counsel for the respondents. We reserved judgment to explain our reasons.

Factual background

8. On 3 February 2000, at Wood Green Crown Court, the appellant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor contrary to section 170 of the Customs and Excise Act 1979. On 28 February 2000 Newman J made a restraint order against the appellant to prohibit disposal by him of his assets, in contemplation of the making by HMRC and the CPS of an application for a confiscation order against him. On 5 May 2000 the appellant was sentenced to two-and-a-half years' imprisonment.
9. Section 72A of the Criminal Justice Act 1988 provides that, absent exceptional circumstances, a confiscation order should be made within six months of conviction. There were directions hearings in relation to the application by HMRC and the CPS for such an order on 5 June and 3 August 2000 before the judge in the Crown Court. At the second hearing, the judge gave directions (to which the appellant did not object) for a substantive trial of the issue whether a confiscation order should be made, to take place in October 2000.
10. On 2 October 2000, the Human Rights Act 1998 ("the HRA") and the Convention rights set out in that Act came into effect at the domestic level in the United Kingdom.
11. On 13 October 2000 the Crown Court judge made a confiscation order against the appellant to pay £80,000 by 30 April 2001, with 18 months' imprisonment in default of payment.
12. The appellant sought leave to appeal against the confiscation order, on the ground that it had been made more than six months after his conviction in breach of section 72A. At the time, there was uncertainty about the effect of section 72A in such circumstances. On 19 July 2001 permission to appeal was granted and enforcement of the confiscation order was suspended pending the outcome of the appeal (with the restraint order remaining in place in the meantime).
13. Other test cases on the effect of section 72A in such circumstances were heard by the Court of Appeal, which on 16 December 2002 gave judgment holding that a failure to comply with the statutory six month time limit in that provision did not deprive the courts of jurisdiction to make a confiscation order. The appellant in one of these cases, R v Soneji, sought and obtained permission to appeal to the House of Lords. Permission was also granted in the case of R v Knights.
14. In a distinct development, on 15 April 2003 the appellant issued an out of time notice of appeal against conviction on the grounds of alleged non-disclosure by the prosecution at his trial. This went nowhere: on 24 June 2004 the Court of Appeal refused the appellant permission to appeal his conviction out of time.
15. Meanwhile, on 2 March 2004 the Court of Appeal continued the stay of the appellant's appeal against the confiscation order in his case, pending the judgment of the House of Lords in R v Soneji and R v Knights.
16. On 21 July 2005 the House of Lords handed down its judgments in R v Soneji and R v Knights. The House of Lords affirmed the judgment of the Court of Appeal that breach of the time limit in section 72A would not necessarily deprive a court of jurisdiction to make a confiscation order.
17. The appellant sought permission to amend his grounds of appeal in respect of the confiscation order to add two new grounds: (i) that the confiscation order was unlawful because made in respect of a conspiracy to commit another substantive offence, rather than in relation to the substantive offence itself; and (ii) that the duration of the proceedings up to the date of the appeal had been unreasonably long, in breach of the appellant's Convention rights under Article 6(1) of the ECHR. By a judgment dated 14 February 2006, the Court of Appeal (Criminal Division) refused permission to amend the grounds of appeal and, by application of the reasoning of the House of Lords in R v Soneji and R v Knights, dismissed the appeal based on non-compliance with section 72A. The stay against enforcement of the confiscation order in respect of the appellant was brought to an end.
18. On 15 February 2006, the appellant applied to the House of Lords for permission to appeal. On 16 February 2006, the House of Lords dismissed that application.
19. The same day, 16 February 2006, since his domestic remedies in relation to the making of the confiscation order had been exhausted, the appellant commenced proceedings against the United Kingdom before the ECtHR.
20. On 20 February 2006, the CPS wrote to the appellant to demand that he pay the sum stated in the confiscation order. The CPS refused a request by the appellant to stay enforcement pending the outcome of the proceedings in the ECtHR. Since the appellant made no proposals to satisfy the confiscation order, the CPS commenced enforcement proceedings in the magistrates' court.
21. At a hearing on 23 August 2006, the magistrates' court rejected the submission for the appellant that to proceed to enforce the confiscation order would constitute an abuse of process and would violate the appellant's rights under Article 6. The enforcement proceedings were adjourned to 31 October 2006 to allow for an inquiry in respect of the appellant's means.
22. The appellant commenced a claim for judicial review of the magistrates' court decision to allow the enforcement proceedings to continue.
23. At the adjourned hearing on 31 October 2006, the district judge sitting in the magistrates' court dismissed an application by the appellant for a stay of the enforcement proceedings pending determination of his application for judicial review. However, the means inquiry was adjourned to 19 December 2006.
24. In the event, the appellant was granted permission by the High Court to apply for judicial review and a stay of the enforcement proceedings pending the hearing of the claim for judicial review (at hearings on 23 January 2007 and 19 December 2006, respectively). However, on 25 January 2007, Langstaff J found the appellant in contempt of court in relation to breaches of the restraint order and ordered him to pay £75,000 in respect of the confiscation order within 28 days. The appellant paid this sum on 21 February 2007.
25. By his judgment in R (Minshall) v Marylebone Magistrates' Court handed down on 21 November 2008, Pitchford J dismissed the appellant's application for judicial review. Pitchford J noted the delay which had occurred in relation to enforcement of the confiscation order, in particular to allow for the conclusion of the proceedings in the House of Lords in R v Soneji and R v Knights. However, he dismissed the appellant's argument that enforcement of the confiscation order would be in breach of his rights under Article 6. Pitchford J held that, whilst Article 6 was applicable in relation to the enforcement proceedings, it had been reasonable for the enforcement proceedings to be stayed pending resolution of the legal issue regarding the effect of section 72A which was ultimately determined by the judgments of the House of Lords in those cases. On 21 January 2009, he refused the appellant's application to certify a point of law of general public importance for consideration by the House of Lords. The stay in respect of enforcement of the confiscation order came to an end.
26. The appellant failed to pay the balance of £5,000 due under the confiscation order. A warrant of commitment was issued for the imprisonment of the appellant pending payment. The court which issued the warrant was the magistrates' court which was responsible for enforcement of the confiscation order. On 22 September 2009 the appellant was imprisoned on the authority of this warrant. The balance due was paid the following day and he was released.
27. After some delay, the ECtHR eventually delivered its judgment on the appellant's application in Strasbourg on 11 December 2011: Minshall v United Kingdom (2012) 55 EHRR 36. The judgment makes it clear that the ECtHR had been informed about the progress of all the domestic proceedings in relation to the appellant, including about his imprisonment and the enforcement of the confiscation order against him: paras. [16]-[22]. However, the judgment also makes it clear that the appellant's application to the ECtHR was limited to the question whether there had been a violation of Article 6(1) in the period down to the final dismissal of his appeal against the confiscation order by the decision of the House of Lords dated 16 February 2006 to refuse him permission to appeal. According to the appellant's application, this was the end of the relevant period of delay in the domestic proceedings against the appellant, since it was on that date that the question of the validity of the confiscation order was finally determined in those proceedings: see para. [31] ("[The appellant]… accepts that the relevant proceedings began on 3 February 2000 when he was convicted of conspiracy fraudulently to evade excise duty and were determined on 16 February 2006, when he was refused leave to appeal to the House of Lords") and para. [37]. In the proceedings in Strasbourg, the appellant did not complain about time taken in relation to the enforcement proceedings against him after 16 February 2006. He claimed compensation for aggravation and anguish and for interest paid by him by reason of the late payment of the sum due under the confiscation order, but specifically accepted that the capital sum due under the confiscation order "was properly upheld and enforceable": para. [66].
28. By its judgment, the ECtHR held that there had been unreasonable delay in the domestic proceedings, in violation of Article 6(1), down to 16 February 2006, by reason of the unexplained delay in the determination of the proceedings in R v Soneji and R v Knights in the House of Lords: paras. [51]-[56]. The ECtHR held that compensation in the sum of €2,000 was payable as just satisfaction for the violation, covering both pecuniary and non-pecuniary damage: para. [70]. In due course the United Kingdom paid the appellant this sum. The ECtHR rejected other complaints by the appellant, namely that he had not had a fair trial and that there had been a violation of Article 7.
29. A considerable time later, on 23 February 2013 the appellant issued his claim in the present proceedings in the Chancery Division. His particulars of claim were drafted by himself, as a litigant in person. They are diffuse, but for present purposes can be summarised as a claim for restitution and a claim for damages for false imprisonment. The appellant relies on the different conclusion of the ECtHR on the issue of unreasonable delay pending the decision of the House of Lords in February 2006, contrary to Article 6(1), as compared with the reasoning of Pitchford J on that issue in his judgment in the domestic proceedings. The appellant says that, because there had been unreasonable delay contrary to Article 6(1) in determining whether the confiscation order was rightly made, it was likewise contrary to Article 6(1) on grounds of delay (and hence unlawful) for the confiscation order to be enforced against him subsequently in the domestic proceedings. His restitution claim in the present proceedings relates to the total capital sum of £80,000 (plus additional interest) paid by him under the confiscation order. His false imprisonment claim is in respect of the two days he spent in prison on 22 and 23 September 2009, as a measure to enforce the confiscation order.
30. At the hearing below the appellant was represented by different counsel from those who appear for him in this court. At that hearing there was debate about whether, in addition to the restitution claim and the false imprisonment claim, the appellant might have a claim for damages under the HRA in relation to the steps taken after 16 February 2006 to enforce the confiscation order against him. The appellant would have required permission to amend his claim form to add such a claim. Also, since the usual time limit for a claim under the HRA is one year, the appellant would have required an extension of time pursuant to section 7(5)(b) of the HRA. In the event, however, no draft pleading seeking to add such a claim was placed before the judge; no application to amend was made; and no application was made for an extension of time to bring such a claim.
31. By an order dated 12 November 2013 the judge struck out the appellant's claim on the grounds that it did not disclose any viable cause of action. The appellant now appeals to this court.

Discussion

32. Although I have reservations about parts of the judge's reasoning, some of which I explain below, the main part of his reasoning based on Isaacs v Robertson [1985] AC 97 and the enforceability of valid court orders is in my judgment correct and this appeal should be dismissed.
33. Article 6(1) of the ECHR, which is set out in Schedule 1 to the HRA as a Convention right for the purposes of the Act, provides in relevant part as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

34. The judge began his legal analysis by saying that the proceedings before the ECtHR were in the nature of an appeal from the domestic proceedings: para. [4]. In a similar way, in his speaking note for this appeal, Mr Clayton maintained that "the decision of Pitchford J was reversed by the decision of the ECtHR".
35. This is not an accurate characterisation of the position. The part of the domestic proceedings by which the appellant challenged the enforcement of the confiscation order (as distinct from the making of it in the first place) came to an end with the judgment of Pitchford J on 21 November 2008 and the refusal of permission to appeal in respect of it. After that, the appellant had no remaining valid objection in the domestic courts to enforcement of the confiscation order. At the latest, the enforcement process in fact came to an end on 23 September 2009 when the appellant paid the outstanding balance due under the order and was released from prison.
36. The appellant's application to the ECtHR does not constitute an appeal against the judgment or the order of Pitchford J, which is a final and conclusive decision for the purposes of domestic law that the enforcement of the confiscation order was compatible with Article 6 and in no way unlawful. The appellant's application to the ECtHR was a step taken on the plane of international law, not domestic law. It was an application to an international court (the ECtHR) made at a time when relevant domestic remedies with respect to the making of the confiscation order had been exhausted. The fact that the ECtHR eventually came to a different conclusion than Pitchford J regarding the compatibility with Article 6(1) of the period of delay due to the wait for the House of Lords decisions in R v Soneji and R v Knights is a finding relevant to the appellant's claim under international law (which has been fully satisfied by the payment of the sum of €2,000 found by the ECtHR to be due to him as just satisfaction), but is not relevant to the appellant's current claims under domestic law in restitution and for false imprisonment.
37. So far as those claims are concerned, the insuperable difficulty facing the appellant is that the relevant orders made in relation to him in the domestic proceedings are all valid and conclusive orders for the purposes of domestic law. The confiscation order was validly made, as the appellant himself conceded in his submissions on just satisfaction in the proceedings before the ECtHR. The enforcement proceedings in the magistrates' court were validly pursued despite the element of delay in the House of Lords, as Pitchford J determined. The warrant for the appellant's committal to prison to enforce the confiscation order was validly issued and the lawfulness of it was not challenged by the appellant in domestic proceedings at the time; nor could it have been, in view of the decision by Pitchford J.
38. The appellant's claim is contrary to two important principles of domestic law, which have combined effect in this case. First, the very issue which the appellant now seeks to raise in these proceedings (whether enforcement of the confiscation order was incompatible with Article 6) has been determined against him in legal proceedings to which he was party. At the level of domestic law it is res judicata that there has been no violation of Article 6(1) in respect of the enforcement proceedings against him in relation to the confiscation order. He is not entitled to seek to re-open that issue in the present proceedings.
39. Secondly, the appellant was subject to a direct order of a court against him personally that he should pay the confiscation sum. Even if he doubted the validity of the order, he came under an obligation to comply with it: see Isaacs v Roberts. This obligation was reinforced by the order made by Pitchford J to dismiss the appellant's claim for judicial review of the magistrates' court decision to enforce the confiscation order. The judge below correctly identified the rule in Isaacs v Robertson as a rule to which the appellant has no answer in the present case: see paras. [19]-[21] of the judgment. Under the confiscation order the appellant's obligation was to pay the £80,000; if he wished to reverse the effect of the confiscation order or the enforcement proceedings against him, it was necessary for him to obtain an order of a court of relevant jurisdiction and authority to discharge the orders which had been made against him. This he has failed to do. The ECtHR is not a court with such jurisdiction and authority. Nor is the judge in the present proceedings: he had no authority to question whether the Crown Court was correct to issue the confiscation order in the first place nor whether Pitchford J was correct to decide that enforcement of that order by the magistrates' court was lawful and compatible with Article 6(1).
40. There is scope for the interpretation of Convention rights in domestic law to be informed by case law of the ECtHR, especially where there is clear and constant jurisprudence of that court: see section 2(1) of the HRA and Pinnock v Manchester City Council v Pinnock (Nos. 1 and 2) [2010] UKSC 45; [2011] UKSC 6; [2011] 2 AC 104, [48]. In some cases where the ECtHR later comes to a different conclusion about the interpretation or application of a Convention right in a particular context, after it has been ruled upon by the domestic courts, it may be proper for an application to be made to the appropriate domestic court to seek to obtain an order to reverse orders previously made by the domestic court. (I observe that the same might equally be true if a later decision of the Supreme Court required the lower courts to revisit some established interpretation of Convention rights or domestic law). If such an order can be obtained, the individual who had been bound by relevant previous orders made by the domestic courts will no longer be subject to any principle of res judicata or the rule in Isaacs v Robertson.
41. In the circumstances of the present case, the appropriate domestic court in relation to the confiscation order itself would have been the Court of Appeal (Criminal Division): after the judgment in Minshall v United Kingdom the appellant could have sought to apply out of time for permission to appeal in respect of that order. And the appropriate court in relation to the decision of Pitchford J, which was in a "criminal cause or matter", would have been the Supreme Court of the United Kingdom (which has replaced the House of Lords): again, the appellant could have sought to apply out of time for permission to appeal, giving as a reason the new judgment of the ECtHR. But the appellant has not sought to follow either of these courses and remains bound by the orders made against him.
42. I am far from saying that, if the appellant had tried to obtain permission to appeal, he would have been successful or that, if he had been granted permission, he would have been successful in any appeal. In fact, all the indications are that he would not have been. He did not apply promptly after the judgment of the ECtHR was handed down. The judgment did not say that the making of the confiscation order was contrary to any Convention right of the appellant (indeed, he accepted that he could not complain about this). In his application to the ECtHR the appellant did not complain about the enforcement of the confiscation order after 16 February 2006: his complaint was only that the delay in getting to the point when the House of Lords decided that it was a valid order had been too great: see para. [31] of the ECtHR's judgment (it is true that the appellant made his application to the ECtHR as soon as that point was reached, but if he had wanted to complain about the steps taken to enforce the order it would have been a simple matter for him to amend the application to cover that complaint). It follows from the limited way in which the appellant put his complaint that the ECtHR has not determined that the domestic courts contravened Article 6 in taking the steps they did to enforce the confiscation order. There is simply no ruling from the ECtHR to say that the decision made by Pitchford J that it was proper for enforcement of the confiscation order to proceed in 2008 was contrary to any Convention right of the appellant.
43. In fact, the ECtHR was well aware of his decision and of the enforcement steps which followed from it, since it referred to them in its judgment. Having done so, the ECtHR said nothing to indicate that there was in its opinion anything contrary to the Convention in what had happened regarding the enforcement of the confiscation order (as distinct from what had happened before it was finally decided that the order was a valid one) – and in fact the steps to enforce the order had all been taken within a reasonable time once that final decision as to its validity was arrived at. The ECtHR plainly considered that the compensation of €2,000 it awarded for the distress suffered by the appellant until that final decision was made (also covering an element of interest in relation to the period up to 16 February 2006), was appropriate and sufficient just satisfaction for any delay that had occurred. The United Kingdom has made the payment required, and there is no other element of just satisfaction appearing from the judgment of the ECtHR which requires further action from the United Kingdom. It cannot be inferred from any of this that the ECtHR thought that the far more radical conclusion should be drawn, that the confiscation order should not have been enforced at all; in fact, the proper inference is the opposite of this. Hence Mr Clayton's suggestion that Article 46 of the ECHR, relating to the international law obligation on the United Kingdom to comply with judgments of the ECtHR, somehow creates an obligation on the domestic courts to treat any previous domestic court order in the appellant's case as reversed goes nowhere.
44. It should also be noted that in other situations the mere fact that there has been some delay contrary to Article 6(1) in the course of criminal proceedings does not have the effect that substantive enforcement of the criminal law (by a trial of the charges against the accused) becomes impermissible under Article 6(1): see Attorney-General's Reference (No. 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72. Similarly, there is no reason to think that, if the position had been analysed on a relevant application by the appellant, the proper conclusion would have been any different, namely that the confiscation order could be enforced despite the delay that had occurred. The reasonable time obligation in Article 6(1) does not operate as some sort of limitation period: compliance with it is not a pre-condition for the authorities to be entitled to enforce the substantive law in an appropriate case.
45. However, having made all these points, I emphasise that no application was made to us or to any other appropriate court to try to discharge the confiscation order or the decision of Pitchford J. Thus it is that, in my view, the outcome of this appeal turns on the binding and conclusive effect of that order and that decision on the appellant.
46. It follows that the appellant's claim in restitution must fail. He paid £80,000 pursuant to a valid order of the Crown Court, the lawful enforceability of which was confirmed by the decision of Pitchford J, in respect of which there has been no appeal. There is no unjust factor present in these circumstances which could sustain a claim for its restitution under the law of unjust enrichment: cf Banque Financière de la Cité v Parc (Battersea) Ltd [1999] AC 221, 227 (Lord Steyn), 234 (Lord Hoffmann). A payment pursuant to a lawful order of a court is not made in circumstances which are "unjust" for these purposes. The appellant made payment not by reason of any relevant mistake of law - in the sense discussed by Lord Hoffmann in Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49; [2007] 1 AC 558 in a passage of his speech at para. [23] on which Mr Clayton particularly relied (see below) – but rather because he understood, correctly, that in domestic law the money was owed. Unlike the position as analysed by Lord Hoffmann in Deutsche Morgan Grenfell, in which on a true analysis "the money was not owing", the later decision of the ECtHR in Minshall v United Kingdom in this case did not show that, in domestic law, the money "was not owing."
47. In the Deutsche Morgan Grenfell Group case the claimant ("DMG") paid an excessive amount of advance corporation tax ("ACT") on the basis of statutory provisions which were subsequently found by the European Court of Justice to be contrary to EC law and hence were, on a correct understanding of the position, unenforceable. DMG claimed to recover the excess amount paid as money paid under a mistake of law. The House of Lords held that this claim was established and was not statute-barred. Lord Hoffmann said this at para. [23]:

"I come back, therefore, to the question of whether DMG made a mistake, against the consequences of which the action seeks relief. The first point to make is that the alleged mistake was one of a very special kind. If DMG had known for certain what the Court of Justice was going to say in the Metallgesellschaft/Hoechst case [2001] Ch 620 on 8 March 2001, it is very unlikely that it would have paid ACT. But it had no means of knowing that. It was only in retrospect that it became clear that the ACT could not lawfully have been exacted. Professor Birks said that this was not a mistake at all. It was merely an inability to predict what the Court of Justice was going to say, just as one cannot predict with certainty what the weather is going to be like. And Sir Jack Beatson, writing extrajudicially in the volume to be published in memory of Professor Birks ("Unlawful Statutes and Mistake of Law: Is there a Smile on the Face of Schrödinger's Cat?" in Mapping the Law (ed Burrows and Rodger) (2006), pp 163–180) describes the majority decision in the Kleinwort Benson case to treat a similar failure of prediction as a mistake as an "emphatic endorsement … of the declaratory theory of judicial decision-making" and "abstract juridical correctitude". This seems to me, with respect, to muddle two different questions. One is whether judges change the law or merely declare what it has always been. The answer to this question is clear enough. To say that they never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude. But the other question is whether a judicial decision changes the law retrospectively and here the answer is equally clear. It does. It has the immediate practical consequence that the unsuccessful party loses, notwithstanding that, in the nature of things, the relevant events occurred before the court had changed the law: see In re Spectrum Plus Ltd [2005] 2 AC 680. There is nothing abstract about this rule. So the main question in the Kleinwort Benson case [1999] 2 AC 349 was whether a person whose understanding of the law (however reasonable and widely shared at the time) is falsified by a subsequent decision of the courts should, for the purposes of the law of unjust enrichment, be treated as having made a mistake. The majority view in the Kleinwort Benson case was that he should. The effect of the later judgment is that, contrary to his opinion at the time, the money was not owing. It is therefore fair that he should recover it. It may be that this involves extending the concept of a mistake to compensate for the absence of a more general condictio indebiti and perhaps it would make objectors feel better if one said that because the law was now deemed to have been different at the relevant date, he was deemed to have made a mistake. But the reasoning is based upon practical considerations of fairness and not abstract juridical correctitude."

48. This reasoning does not assist the appellant in the present case. In Deutsche Morgan Grenfell Group there had been no court decisions or orders directed against DMG and requiring it to pay the money it did. There was no scope for the operation of the principle of res judicata or the rule in Isaacs v Robertson, which apply in the present case. Moreover, EC law (now EU law) is capable of having direct effect so as to modify domestic law, as had been found to be the position in relation to the enforceability of the domestic law in relation to ACT, and since the European Court of Justice has jurisdiction to pronounce authoritatively on the meaning and effect of EU law it is able to produce direct effects on the plane of domestic law by its judgments. This is not the position in relation to the rulings of the ECtHR, which have no direct effect upon domestic law (albeit they may be influential when a domestic court comes to interpret the Convention rights set out in the HRA).
49. For the reasons set out above, the appellant has no case in restitution and the judge was right to strike out that part of the appellant's claim.
50. For similar reasons the appellant's claim in false imprisonment also fails. In fact, the analysis here is, if anything, even more strongly against the appellant's claim. The appellant has not sued the person who detained him (the prison governor), but the person who went to court to obtain the issue of a warrant for the committal and detention of the appellant. The relevant body which procured the appellant's detention was the court which issued the warrant for his committal: it acted on the basis of an application by the CPS, but it made its own judgment that the warrant should be issued. So far as concerns any person detaining the appellant on the authority of the warrant issued by the court, the fact of the warrant provides a complete defence: see, e.g., Zenati v Commissioner of Police of the Metropolis [2015] EWCA Civ 80; [2015] 2 WLR 1563, [49]-[56]. A claim for false imprisonment does not lie where the imprisonment is pursuant to lawful authority provided by an order of a court, which is what happened in this case.
51. Mr Clayton sought to avoid the implications of this very basic proposition of law by referring to R v Governor of Brockhill Prison, ex p. Evans (No 2) [2001] 2 AC 19. But that authority does not assist him. It was a very different case and the reasoning in it is in fact contrary to Mr Clayton's submission.
52. In Evans (No. 2) a court order had been issued authorising the imprisonment of the claimant. The actual release date for the claimant was not specified in the order itself, but had to be calculated by reference to the general law. A prison governor made a mistake about the effect of the relevant general law and as a result calculated a later release date for the claimant than was the lawful one pursuant to the order made in his case, so that the claimant was detained for longer than he should have been. The excess period of detention had not been authorised by the order of the court and so constituted a period of false imprisonment for which damages were payable. Admittedly the governor had been misled by court rulings in other cases which seemed to say that the method of calculation he chose was the correct and indeed obligatory one, but the House of Lords held that this background was not such as to allow the assimilation of the position of the governor with that of a gaoler who detains a prisoner on the basis of a clear and direct order of a court to do so. In other words, the House of Lords endorsed the correctness of the basic proposition referred to above (i.e. that detention on the authority of a direct order of a court does not constitute false imprisonment), but held that on the facts of the case that proposition did not assist the governor. As Lord Slynn said, at p. 26C, deprivation of liberty may be shown to be lawful or justified "where it is pursuant to an order of a court". In the present case, by contrast with the position in Evans (No. 2), the appellant was detained on the authority a specific court order in the form of a warrant issued for his committal to prison, and the ordinary proposition of law which was accepted by the House of Lords covers the case.
53. Finally, at the hearing of the appeal there was again reference to a possible claim for damages under the HRA. Mr Clayton accepted that this did not feature in the appellant's claim as currently pleaded, but he floated the idea that it might be amended. However, no application was actually made to amend the claim form; no notice was issued to seek permission for such an amendment; nor did Mr Clayton have any formulated amended pleading available to place before us to provide the basis for any such application.
54. Therefore, the position in relation to this hypothetical HRA damages claim is this: there is no such claim in the proceedings. No application was made to the judge below to amend the claim to introduce an additional claim for damages under the HRA, and he gave no permission for any amendment. There is no ground of appeal relating to any such HRA claim. No application was made to us to seek permission to amend to introduce such a claim. The judge was right that the appellant's claims in the case should be struck out, and reference to a different and hypothetical HRA damages claim does not provide any basis for questioning the judge's decision or order.
55. I ought, however, to mention that even though no application was made to him to amend the claim to introduce a HRA damages claim, the judge expressed the view that if an application had been made to introduce such a claim he thought this would be an appropriate case in which to extend time for the making of such a claim pursuant to section 7(5)(b) of the HRA. I am very doubtful that is right, but it is not necessary to say anything further about it, because the question does not arise.

Conclusion

56. For the reasons set out above, I consider the appeal should be dismissed. The judge was right to strike out the appellant's claim.

Lady Justice Gloster DBE:

57. I agree.

Lord Justice McCombe:

58. I also agree.