There is no blanket rule that before seeking damages for alleged breaches of art.5-6 ECHR an aggrieved person must appeal the underlying order(s).
MTA was subject to an interim injunction made under the Anti-social Behaviour, Crime and Policing Act 2014. He was arrested and detained on a number of occasions for breach of that injunction. After a later capacity report showed that he lacked injunction and litigation capacity, the interim injunction was set aside.
MTA then issued a claim for damages against the Commissioner of Police for the Metropolis and the Lord Chancellor under s.7, 9 Human Rights Act 1998. He contends that a number of judicial acts breached his rights under art.5-6 of the European Convention on Human Rights. The Lord Chancellor applied to strike out the claim on the basis that it amounts to an abuse of process, following the decision in Mazhar v Lord Chancellor  Fam 103, CA. In particular he asserted that it is an abuse of process to bring a s.9 claim by way of originating process when the claimant could and should first have challenged the underlying orders by way of appeal, in order to obtain a judicial determination as to whether there was an infringement of any ECHR rights.
Freedman J dismissed the Lord Chancellor’s application, holding that there was no such abuse of process. He held that an abuse of process may arise in some circumstances, but not in those pertaining in this case: MTA could not have appealed at the time of the relevant orders because he lacked capacity and did not have a litigation friend; the orders were subsequently set aside; and the fact of various judicial orders would have necessitated multiple appeals. In particular, the judge rejected the submission that allowing the claim was inconsistent with the particular constitutional position of the Lord Chancellor.
Riccardo Calzavara was junior counsel for the Lord Chancellor, led by Joanne Clement KC of 11KBW.