Seal (FC) v Chief Constable of South Wales Police [2007] UKHL 31

This appeal raised an issue in relation to the construction and application of section 139 of the Mental Health Act 1983 which states at section 139(1) “No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings …. in respect of any act purporting to be done in pursuance of this Act …. “ and at section 139 (2) “No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the DPP.”

What were the consequences if a claimant brought civil proceedings which required the grant of leave under s139 (2), without obtaining such leave?  The Chief Constable submitted that the obtaining of leave was a jurisdictional condition which rendered invalid any proceedings brought without it.  Seal challenged this interpretation contending that the lack of leave was an irregularity which could be rectified and not a fatal flaw which vitiated proceedings.

The Police had attended the home address of Seal’s mother and arrested him for causing a breach of the peace.  He was then taken outside and as a result of what happened on the street the Police removed Seal to a place of safety under s136 of the Mental Health Act 1983, having been found in a place “to which the public has access” and being in need of “immediate care and control.”  He was detained initially under s136 (2) and then under section 2 and was released after just over a week.  Seal claimed he was unlawfully detained and claimed damages.  The Chief Constable sought to strike out the claim because Seal had not sought the leave of the High Court as required by s139 (2) The Chief Constable’s application was successful in the County and High Court on appeal.  Seal appealed to the House of Lords.  He pointed out that proceedings issued after expiry of the limitation period under section 2 of the Limitation Act 1980 had never been held to be a nullity and the court had been reluctant to find that the effect of failure to comply with a procedural requirement is to render proceedings null R v Secretary of State for the Home Department ex parte Jeyeanthan
In the minority dissenting opinions, Lord Woolf and Baroness Hale argued that by setting a restriction on bringing proceedings, Parliament had intended to confer substantial protection on the defendant if claimant should fail to comply with the requirement, but this did not nullify proceedings.  Generally, the courts tended to prefer substance to form and that lack of compliance should not necessarily invalidate proceedings.  It had not been Parliament’s intention to strike out any claim that was not brought without leave of the court.  To do so might cause grave injustice, albeit in a minority of cases whilst at the same time giving the court discretion to strike out cases to provide protection to defendants.  Access to the courts was a fundamental constitutional right that could only be excluded by express clear language or necessary implication to the contrary.

Lord Bingham delivered the principal judgment of the majority of the House which held that the plain meaning of s139(2) was clear and that there was case law pre-dating the 1983 Act which held that claims issued without obtaining the leave of the High Court were a nullity.  Their Lordships had not been referred to any judicial opinion suggesting that failure to obtain the required leave was a procedural irregularity which might be cured rather than a flaw that rendered proceedings null.  The defendant could still have brought proceedings within the six year limitation period under the 1980 Act which would not have debarred him from prosecuting his claim but he did not do this.  His undoing therefore lay not in his failure to obtain leave under section 139 of the 1983 Act but in his failure to proceed with the generous limitation period under the 1980 Act.

Appeal dismissed

Comment

Baroness Hale made a subsidiary point on what would have been the substantive issue had proceedings been permitted.  There had been a misunderstanding by the Police of the nature of their powers under s136 of 1983 Act.  They were only available in relation to a person “found in a place to which the public have access”.  She suggested that the police had erroneously relied on this power when the reality was that the defendant had been found on private property rather than in a public place.

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