Adorian v Commissioner of Police of the Metropolis

On 20 August 2007 the claimant, Anthony Adorian, issued a claim form against the Commissioner of Police of the Metropolis seeking the following relief:

The defendant seeks a declaration pursuant to CPR 11(1) that the court has no jurisdiction to try the claim and/or that the claim should be struck out pursuant to CPR 3.4(2) on the grounds that under section 329(2) of the Criminal Justice Act 2003, the claimant required permission to issue the proceedings, but did not obtain such permission and in consequence the proceedings are a nullity.

The claimant has responded with a cross-application seeking:

seeking an extension of time for making that application.”

The Background Facts

On 25 November 2004 the claimant was charged with obstruction of police officers in the execution of their duty, contrary to section 89(2) of the Police Act 1996. On 20 April 2005 he was found guilty, and was conditionally discharged for 24 months.

The claimant has pursued a complaint against the police in relation to the manner of his arrest. That complaint had not been resolved by 20 August 2007 when the claim form was issued. It is to be noted that the limitation period in relation to the claim for assault and battery was then thought to be 6 years. But on 30 January 2008 the limitation period for such claims was reduced to 3 years as a result of the decision of the House of Lords in A v Hoare[2008] UKHL 6.

Section 329 of the Criminal Justice Act 2003

The Issues

Accordingly the following issues fall to be resolved:

What is the effect of failure to comply with section 329(2)? Does such failure:

render the proceedings a nullity in their entirety, alternatively

bar the cause of action in assault and battery but leave the claim in negligence unaffected, or

amount to a procedural irregularity that can be cured by subsequent application at the discretion of the court?

If on the proper construction and application of the Act the answer to (i) above is (c), should permission be granted on the facts of this case?

The defendant contends that the wording of section 329(2) is clear and unequivocal. Mr Stagg, who appeared for the defendant, argues that sub-section (2) can only be construed as meaning that permission must precede the bringing of a claim. He argues that that construction is reinforced by the wording of sub-sections (3) and (4). Sub-section (3) provides for the conditions that must be met before the court may give permission for the proceedings to be brought. Similarly sub-section (4) makes provision for defences available to a defendant “if the court gives permission and the proceedings are brought.” He submits that the intention of Parliament is clear, namely to avoid the need for defendants to be troubled by unmeritorious claims, and argues that to permit a claim to be brought without prior permission having been obtained would frustrate that aim.

He therefore submits that the provision in sub-section (2) is mandatory, and that there is no discretion in the court to entertain a subsequent application for permission. Thus a failure to seek and obtain permission must render the proceedings a nullity.

In support of his argument Mr Stagg relied upon the decision in Seal v Chief Constable of the SouthWales Police[2007] UKHL 31[2007] 1 WLR 1920, which he submitted to be closely analogous to the instant case. The decision was central to the arguments advanced both by Mr Stagg and by Miss Phillippa Kaufmann on behalf of the claimant, and it is therefore necessary to consider the decision in some detail. The facts are succinctly summarised in the head note:

At paragraph 1 of his opinion Lord Bingham of Cornhill set out section 139 of the Mental Health Act 1983 which is entitled “Protection for acts done in pursuance of this Act.” At the time relevant to the appeal sub-sections (1) and (2) were in the following terms:

Counsel invited my attention in particular to the following paragraphs in the opinion of Lord Bingham:

Lord Bingham then undertook a review of the legislative history of the section in issue concluding at paragraph 15:

At paragraph 17 he addressed the point made before me by Miss Kaufmann on behalf of the claimant as to the injustice to a litigant who finds that his proceedings are invalidated by failure to comply with the statutory requirement, when a statutory time bar effectively precludes him from retrieving his position by complying with the requirement. That is of course the position in this case in relation to the claims both in negligence and in assault and battery as a result of the decision of the House of Lords in A v Hoare. Lord Bingham addressed the argument in the following terms:

Lord Bingham concluded that he would dismiss the appeal.

Lord Carswell agreed with the opinion of Lord Bingham. So too did Lord Brown of Eaton-under-Haywood who also gave a short opinion. Paragraphs 73, 74 and 76 of his opinion are of particular relevance.

I cannot see the ‘procedural requirement’ hearing in question as remotely akin to that under consideration by the Court of Appeal in R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354 – essentially a failure to use the prescribed form of application for leave to appeal with the consequential omission of a declaration of truth. I repeat, the requirement of leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court Judge thought it appropriate that they be issued. And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide. Does such a rule apply in respect of those adjudged as vexatious litigants under section 42 of the Supreme Court 1981 when Parliament clearly intended to achieve the same result under the Mental Health legislation? Whether or not such protection is necessary or desirable is, of course, open to question and has, in deed, been extensively debated over recent years. But your Lordships’ task is not to decide whether it is desirable but whether presently the legislation confers it.

…

In short, I agree with all that Lord Bingham says and, with one exception, all that was said in the ablejudgments of the Court of Appeal. I disagree only with that court’s suggestion that the statutory condition in question in Rendall v Blair (1890) 45 Ch D 139 was weaker than that in question here. But the statutory context of the condition there and, more importantly, its legislative history, were markedly different from that of section 139(2) and these differences provide ample grounds for reaching different conclusions as to their effect…”

Mr Stagg argues that the wording of section 329 is no less strong than the wording of section 139 of the Mental Health Act 1983, and that the decision in Seal provides powerful support for his submission that these proceedings are a nullity and should be struck out.

It is convenient first to consider whether section 329 can be construed in such a manner that the effect of non compliance with sub-section 2 is to render the cause of action in trespass of the person a nullity whilst preserving the cause of action in negligence. Neither party felt able to argue for such a construction. Had that been Parliament’s intention then it would have been simply achieved by omission of the first four words of sub-section (2), so that it would provide that the claim, as opposed to the proceedings, may only be brought with the permission of the court. Similarly the word ‘claim’ could have been used in sub-sections (3) and (4) in place of ‘proceedings’. I have come to the conclusion that the section can only be construed as meaning that if Mr Stagg is right in his contention, it is the entire proceedings that are a nullity, notwithstanding that they are the vehicle for an additional cause of action which would otherwise not be caught by section 329.

Miss Kaufmann submits that section 329 can properly be construed as directory not mandatory, and that the proceedings are therefore not a nullity. She argues that failure to seek prior permission under section 329 can be rectified by subsequent application to the court, and that the grant of permission on such an application will be at the discretion of the court.

The first point that she makes is that the intention of Parliament, as articulated by Mr Stagg, namely to protect a prospective defendant from unmeritorious claims, is preserved by the construction for which she contends, in that it will be necessary for the claimant to seek permission if the claim is to be pursued, and in so doing must overcome the obstacle presented by sub-section (3).

But her central argument was founded on the opinions of Lord Bingham and Lord Brown in Seal. First she relied upon paragraph 18 in which Lord Bingham endorsed:

Secondly she relied upon paragraph 7 in which Lord Bingham by reference to a number of authorities commented that “… the welcome tendency to prefer substance to form must generally discourage the invalidation of proceedings for want of compliance with a procedural requirement.”

Thirdly she invited me to follow Lord Bingham’s approach, also at paragraph 7 (see paragraph 14 above) that the answer to the issue should not turn on a detailed consideration of the language used by Parliament in section 329; rather that the question is whether Parliament intended to confer such substantial protection on a putative defendant or intended “to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply…but not nullifying the proceedings…” the answer to which involves “a broader enquiry”.

The ‘broader enquiry’ undertaken by Lord Bingham in Seal involved an examination of the legislative history of section 139 of the Mental Health Act 1983. It is not necessary for present purposes to set out that history. He concluded at paragraph 15 that there was “… a clear consensus of judicial, professional and academic opinion that lack of the required consent rendered proceedings null, and Parliament must have be taken to have legislated on that basis”(see paragraph 15 above).

As Lord Brown put it:

Miss Kaufmann submitted that section 329 is to be distinguished from section 136 of the Mental Health Act 1983 as there is no legislative history indicating that failure to obtain permission prior to the issue of proceedings must render those proceedings a nullity.

Whilst respecting the observation of Lord Bingham that the answer to such a question should not ordinarily turn on a detailed consideration of language used in another statutory provision, Miss Kaufmann nevertheless invited my attention to the decisions in Rendall v Blair(1890) 45 Ch D 139 and Re Saunders(a bankrupt)[1987] Ch 60, both of which had been cited in Seal. In Rendall, a decision of the Court of Appeal, the Court was concerned with the terms of section 17 of the Charitable Trusts Act 1853. It is in the following terms:

In Re Saunders the court was concerned with the construction of section 130(2) of the Insolvency Act 1986 which provides:

Lindsay J considered that in its historic context the wording of section 130 (2) was capable of bearing more than one meaning, and that he should give effect to the meaning that best gave effect to the statutory purpose rather than frustrating it. He held that the language was directory, not mandatory and that failure to obtain leave before issuing did not render the proceedings void.

Miss Kaufmann relied upon those decisions, and the observations of Lord Brown in Seal, in support of her submission that the decision in Seal does not provide the answer to the instant case. But she also identified another critical feature of the statutory provision the subject of the decision in Seal. Central to the decision of the Court of Appeal was the fact that section 139(2) of the Mental Health Act applied to civil as well as to criminal proceedings. The section plainly fell to be read in the same way with regard both to civil and criminal proceedings. But as the Court of Appeal found, it was impossible to envisage criminal proceedings to which section 139(2) applied as being treated as anything other than a nullity in circumstances where they were not commenced by the DPP or with his prior consent. That was a compelling argument as to the construction of the section; and Lord Bingham, with whom Lord Carswell agreed, and Lord Brown concluded that the Court of Appeal reached the right decision for essentially the right reasons.

I find Miss Kaufmann’s submission persuasive. I am satisfied that that failure to comply with section 329(2) does not render the proceedings a nullity, but rather amounts to a procedural irregularity that can be cured by subsequent application at the discretion of the court. I arrive at that conclusion for a number of reasons.

First I bear in mind the principle articulated by Viscount Simonds in Pyx Granite that recourse to the courts is not to be excluded except by clear words. I am satisfied that the wording of section 329 can accommodate the construction for which Miss Kaufmann contends, and I am reinforced in that conclusion by the decisions in Rendell and In re Saunders, in which the statutory provisions is issue were no less strong than in this case.

Secondly I reject Mr Stagg’s submission that the decision in Seal is decisive in this case. I do so for two reasons. First in Seal there was a legislative history from which it was clear that Parliament intended that compliance with section 139 of the Mental Health Act 1983 was mandatory. The provision with which I am concerned has no legislative history compelling such a construction. Secondly section 139 applied both to criminal and civil proceedings, and given that criminal proceedings initiated without consent would unquestionably have been a nullity, Parliament could not have intended a different construction in relation to civil proceedings.

Thirdly I take account of the fact that the construction for which Mr Stagg contends would have the effect of defeating any other causes of action brought in the proceedings, causes of action that would otherwise not be caught by section 329, a consequence that militates against the more restrictive construction.

Fourthly the protection for a prospective defendant provided by the section is not lost by treating prior permission as a procedural requirement, which, if omitted, can be cured by subsequent application to the court. If proceedings are commenced without prior permission, a defendant can apply for them to be struck out, and can meet an application for permission by relying on the substantial hurdles presented to a claimant by subsection (3)(a) and subsection (5), alternatively subsection (3)(b).

Accordingly I resolve the first issue in favour of the claimant. It follows that the defendant’s application is dismissed, and that it is open to the claimant to apply for permission to pursue the proceedings.

I turn then to the claimant’s cross-applications. Section 329(3) sets out the conditions that must be met before permission for the proceedings can be given. The claimant puts her case under sub-section (3)(b), and accordingly there must be evidence that “in all the circumstances, the defendant’s act was grossly disproportionate.” Mr Stagg submits that there is no such evidence, arguing that there is no direct evidence as to how the claimant sustained the fractures to his right femur and acetabulum. That is correct. So far as he is concerned he was injured as he was brought to the ground by the police as the officers sought to restrain him, and is unable to say precisely how the injuries were sustained. But there is clear evidence that the claimant was walking prior to his arrest; and there is nothing to suggest that the injury was sustained between the physical restraint by the officers in the course of the arrest and his subsequent admission to hospital. Accordingly it is clearly to be inferred that the injuries were sustained in the course of his being restrained.

Secondly the injuries were described by Mr Redfern, a consultant orthopaedic surgeon instructed on behalf of the defendant, in the following terms:

In my view it would plainly be open to a court to conclude that the force used in the restraint of the claimant in the course of his arrest was grossly disproportionate; and that the claimant therefore satisfies sub-section (3).

The final question is whether it is appropriate, in the exercise of the court’s discretion, to give the requisite permission notwithstanding that the application was not made prior to the commencement of the proceedings.

I am satisfied that it would be appropriate to do so. The claimant sustained extremely serious injuries in the course of his arrest. Justice requires that his claim that such injuries were sustained by trespass to the person and/or negligence be determined by the court. Secondly the action was commenced within the limitation period so far as the action in negligence was concerned, but that cause of action will be time barred if retrospective permission is not given. As to the claim in trespass to the person, at the time when the proceedings were commenced there were almost 3 years to run before the claim became time barred. But as a consequence of the decision of the House of Lords in A v Hoare (see paragraph 6 above) this claim will now also be time barred if permission to proceed is not given. The defendant will not suffer any prejudice if permission is granted other than the loss of the benefit of being able to take advantage of the procedural error made by the claimant. I also accept the submission made by Miss Kaufmann that the failure to apply for permission was not deliberate and was in all the circumstances understandable. Notwithstanding that it relates to civil proceedings, section 329 is contained with an extremely lengthy statute concerned with the criminal law. It is not surprising that in those circumstances neither the claimant nor his solicitors were aware of its existence.

Accordingly I grant the claimant permission under section 329(2).