House of Lords
|Session 2006 - 07|
Publications on the Internet
PDF Print Version
Seal (FC) (Appellant)
Chief Constable of South Wales Police (Respondent)
|HOUSE OF LORDS|
 UKHL 31
on appeal from:  EWCA Civ 586
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Seal (FC) (Appellant)
Chief Constable of South Wales Police (Respondent)
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Robert McCracken QC
(Instructed by Fisher Meredith)
(Instructed by Dolmans)
23 and 24 May 2007
WEDNESDAY 4 JULY 2007
LORD BINGHAM OF CORNHILL
1. Section 139 of the Mental Health Act 1983 is entitled "Protection for acts done in pursuance of this Act". At the time relevant to this appeal subsections (1) and (2) provided:
2. The appeal raises an issue on the construction and application of subsection (2). What are the consequences if a claimant brings civil proceedings which require the grant of leave under the subsection, without obtaining such leave? The Chief Constable submits that the obtaining of leave in such circumstances is a jurisdictional condition, such as to render null any proceedings brought without it. Mr Seal challenges this interpretation of the subsection: he contends that the lack of leave, even when required, is an irregularity which can be rectified, not a fatal flaw which invalidates the proceedings.
3. On 9 December 1997 an incident was reported to the police at the house of Mr Seal's mother in Merthyr Tydfil. They visited the address and arrested Mr Seal for causing a breach of the peace. The facts are contested. Mr Seal was taken outside the house. As a result of what happened in the street, the police removed Mr Seal to a place of safety under section 136(1) of the 1983 Act. He was detained initially under section 136(2) and then under section 2 and was released after just over a week.
4. On 5 August 2003 solicitors representing Mr Seal wrote to the Chief Constable complaining that there had been no justification for detaining Mr Seal and claiming damages. On 8 December 2003, on the eve of expiry of the six year limitation period, Mr Seal, now acting in person, issued proceedings against the Chief Constable in the Merthyr Tydfil County Court. He supplemented his claim form with particulars of claim on 4 April 2004. The Chief Constable served a defence, addressing the substance of Mr Seal's complaint, but also relying on section 139(1) and (2). The Chief Constable then applied to strike out the particulars of claim and dismiss the action on the ground that Mr Seal had not obtained leave as required by section 139(2) of the 1983 Act before issuing proceedings. To this application District Judge Singh acceded. The district judge's decision was upheld on appeal by His Honour Judge Graham Jones, save that the judge restored such part of Mr Seal's claim as complained of acts which did not fall within section 139(1). This variation is not itself contentious, and gives rise to no issue on this appeal. On further appeal by Mr Seal, the decisions made below on the effect of section 139(2) were upheld by the Court of Appeal (Clarke, Scott Baker LJJ and Ouseley J) in the decision now under appeal:  EWCA Civ 586,  1 WLR 3183.
5. In construing any statutory provision the starting point must always be the language of the provision itself. On this the parties made competing submissions. Mr Jeremy Johnson, in an admirable argument for the Chief Constable, contended that Parliament had made its intention quite clear: any proceedings brought without leave were to be a nullity. This was the view cogently expressed by Scott Baker LJ in his leading judgment in the Court of Appeal, paragraphs 17, 34-35.
6. Mr Robert McCracken QC for Mr Seal challenged this reading. He relied strongly on Rendall v Blair (1890) 45 Ch D 139 and In re Saunders (A Bankrupt)  Ch 60 in which the statutory conditions in question, although dealing with different subject matters, were not markedly weaker than in section 139(2), but a different result was reached. He pointed out that although section 2 of the Limitation Act 1980, following its predecessor sections in earlier Acts, provides that "An action founded on tort shall not be brought . . .", proceedings issued after expiry of the statutory limitation period have never been held to be a nullity. He also relied strongly on R v Secretary of State for the Home Department, Ex p Jeyeanthan  1 WLR 354, 358-362, where Lord Woolf MR made plain the court's general reluctance to hold that the effect of failure to comply with a procedural requirement is to render proceedings null.
7. I see considerable force in both these submissions. On the one hand, "No civil proceedings shall be brought . . ." in section 139(2) reads as a clear and emphatic prohibition. Although, speaking of section 17 of the Charitable Trusts Act 1853, Bowen LJ said in Rendall v Blair, at p 158, that "this section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all", the House has been referred to no enactment in which clearer or more emphatic language is used than in section 139(2). The construction put on section 2 of the Limitation Act 1980 and its predecessors has been recognised to be "despite" the language used: Walkley v Precision Forgings Ltd  1 WLR 606, 618C; Horton v Sadler  UKHL 27,  1 AC 307, para 7. On the other hand, the variation of language as between section 139(2) and section 17 of the Charitable Trusts Act 1853 (considered in Rendall v Blair) or section 285(3) of the Insolvency Act 1986 (considered in In re Saunders) is not so marked as, without more, to warrant a radically different conclusion, and the welcome tendency to prefer substance to form must generally discourage the invalidation of proceedings for want of compliance with a procedural requirement. While, therefore, I incline to favour the Chief Constable's reading of section 139(2), I do not think the answer to a question such as this should ordinarily turn on a detailed consideration of the language used by Parliament in one provision as compared with that used in another. The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji  UKHL 49,  1 AC 340, para 23. To answer this question a broader inquiry is called for.
8. The legislative history may be taken to begin with the Lunacy Acts Amendment Act 1889. Section 12(1) rendered any person acting in pursuance of the Act immune from civil or criminal liability in any proceedings "whether on the ground of want of jurisdiction, or on any other ground, if such person has acted in good faith and with reasonable care". Subsection (2) of the section gave teeth to this provision by enabling any person made the subject of proceedings as a result of anything done in pursuance of the Act to make summary application to a judge of the High Court who might (and in practice would be bound to) stay the proceedings if satisfied that there was no reasonable ground for alleging want of good faith or reasonable care. This provision was consolidated in the Lunacy Act 1890. It plainly afforded the defendant an important measure of substantial protection at trial. But if a defendant sought protection before trial the initiative rested with him: an action brought without reasonable ground for alleging want of good faith or reasonable care would proceed to trial unless he applied to stay it.
9. Section 16 of the Mental Treatment Act 1930 replaced and altered the 1890 provision. Subsection (1) preserved the immunity of those acting pursuant to the Act save where they had acted in bad faith or without reasonable care. But it was no longer provided that a defendant should seek a stay if an action were brought without reasonable ground for alleging want of good faith or reasonable care. Instead, subsection (2) introduced new conditions: that no proceedings, civil or criminal, might be brought against any person in any court in respect of anything done in pursuance of the Act without the leave of the High Court; and that such leave should not be given unless the court was satisfied that there was substantial ground for the contention that the person, against whom it was sought to bring the proceedings, had acted in bad faith or without reasonable care. Thus the obtaining of leave appeared to be a pre-condition of bringing proceedings. Section 16(1) and (2) of the 1930 Act were repealed and replaced in the Mental Health Act 1959, by section 141(1) and (2), which reproduced the effect of the subsections, subject to differences of wording. Thus it remained necessary to obtain the leave of the High Court before bringing civil or criminal proceedings in respect of anything done in pursuance of the Act, and the condition to be met to obtain leave remained the same.
10. Section 60 of the Mental Health (Amendment) Act 1982 made no amendment to section 141(1) of the 1959 Act. Thus the qualified immunity of those acting pursuant to the Act was preserved. But section 141(2) was amended in two respects. First, while leave to bring civil proceedings in relation to anything done pursuant to the Act had still to be obtained from the High Court, leave to bring criminal proceedings had now to be obtained from the Director of Public Prosecutions. Secondly, the ancillary requirement that leave should not be given unless the court was satisfied that there was substantial ground for the contention that the putative defendant had acted in bad faith or without reasonable care was omitted, in relation to both civil and criminal proceedings. Section 141(1) and (2), as amended in 1982, were consolidated as section 139(1) and (2) of the 1983 Act which the House is now asked to construe.
11. The 1982 amendment and the 1983 consolidation were preceded by two official reviews, the first ("A Review of the Mental Health Act 1959") published by the Department of Health and Social Security in 1976 and the second ("Review of the Mental Health Act 1959") published by that department, the Home Office, the Welsh Office and the Lord Chancellor's Department in 1978 (Cmnd 7320). Both those reviews considered the effect of section 141(1) and (2) in its pre-1982 form, as did a MIND report written by Dr Larry Gostin entitled "A Human Condition". From these documents a number of things are clear. It was well-known that the requirement of leave in section 141(2) was criticised as unduly restrictive, ill-directed (because not directed to litigants who had shown themselves to be vexatious) and unjustified by the very small number of applications for leave made each year. But it was also known that staff working with mental patients were anxious about their legal position and the protection available to them. The effect of the leading authority bearing on the meaning of section 141(1) and (2) was, as one would expect, appreciated. This is the background against which Parliament enacted the 1982 amendment and the 1983 consolidation.
12. The leading authority at this time was R v Bracknell JJ, Ex p Griffiths  AC 314, a decision of the House on appeal from the Queen's Bench Divisional Court (Lord Widgery CJ, Melford Stevenson and Watkins JJ). Judgment was given in June 1975. The proceedings arose from the conviction of a mental nurse for assaulting a patient, and the issue was whether the act of the nurse had been pursuant to the Act, so as to entitle the nurse to the protection of section 141. Leave to bring criminal proceedings against the nurse, still required from the High Court, had not been given. In the Divisional Court Mr Gordon Slynn QC for the nurse, contended that, since leave (if needed) had not been obtained, the proceedings were a nullity, a point expressly conceded by Mr Louis Blom-Cooper QC for the prosecutor (see pp 315-316), not challenged by Mr Harry Woolf, appearing as an amicus instructed by the Department of Health and Social Security (pp 316-317), and expressly accepted by Lord Widgery CJ giving the judgment of the court (p 320). In the House this concession was assumed to be correct, and in his leading opinion with which all members of the committee agreed Lord Edmund-Davies, having found the nurse to have been acting in pursuance of the Act, held the criminal proceedings to be a nullity and upheld the Divisional Court's quashing of the conviction (p 336).
13. Counsel for Mr Seal pointed out, quite correctly, that in Ex p Griffiths the question of leave first arose after a trial, culminating in a conviction, had been held, and that the opinions of the Divisional Court and the House were based on a point that was conceded and so was not the subject of adversarial argument. But these objections are of limited cogency. Had Mr Seal's contention been correct, the prosecutor could have resisted the quashing of the conviction, even if the alleged assault were held to be an act covered by section 141. Thus the question of leave was by no means irrelevant. It is also of significance that very eminent counsel and judges accepted it as so clear as to be unworthy of argument that proceedings brought without the required leave were a nullity.
14. Ex p Griffiths did not stand alone. In R v Angel  1 WLR 669 the defendant had been convicted of a sexual offence for which, by section 8 of the Sexual Offences Act 1967, "No proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions . . .". It emerged after conviction and sentence that the requisite consent had not been obtained, and the whole proceedings were held to be a complete nullity. A similar decision was reached by the Courts-Martial Appeal Court and the House in Secretary of State for Defence v Warn  AC 394. In R v Pearce (1980) 72 Cr App R 295 a lack of consent by the Attorney General, required by section 4(3) of the Criminal Law Act 1977, as amended, led to the quashing of the conviction.
15. While, as already noted, the restriction on access to the court in section 141 was the subject of criticism before 1982, the House has been referred to no judicial opinion and no scholarly commentary suggesting that failure to obtain the required leave was a procedural irregularity which might be cured rather than a flaw which rendered the proceedings null. When Parliament legislated in 1982-1983 there was, as it would seem, a clear consensus of judicial, professional and academic opinion that lack of the required consent rendered proceedings null, and Parliament must be taken to have legislated on that basis.
16. Counsel for Mr Seal attached significance to the substitution in 1982 of the Director of Public Prosecutions for the High Court as the authority required to give leave for the bringing of criminal proceedings under section 141(2) of the 1959 Act. I do not for my part think that this change was significant for any purpose relevant to this appeal. Given the Director's expertise in deciding whether to prosecute, applying the familiar tests of evidential sufficiency and the public interest, it was a natural development of the existing regime to assign the responsibility of granting leave under section 141(2) to him. Nothing in the 1982 Act threw doubt on the existing authority that prosecutions instituted without consent where consent is required are a nullity. Nothing in the Act suggested any intention to mitigate the legal consequence of proceeding without consent or to differentiate, in this respect, between criminal and civil proceedings.
17. Counsel for Mr Seal made much of the injustice to a litigant such as Mr Seal if he finds that his proceedings are invalidated by failure to comply with a statutory requirement of which he was ignorant at a time when a statutory time bar effectively precluded him from retrieving his position by complying with the requirement. It must be accepted that a strict rule such as that contended for by the Chief Constable may bear hardly on some litigants, of whom Mr Seal may be one. But the Chief Constable is entitled to reply that if Mr Seal had issued proceedings before the very end of the six-year limitation period his failure to obtain leave, while it might have caused him delay and vexation, would not have debarred him from prosecuting his claim. Thus the provision which effectively denies him the opportunity to proceed is not section 139 of the 1983 Act but section 2 of the Limitation Act 1980. She is also able to reply that Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.
18. I would respectfully echo and endorse the principle enunciated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government  AC 260, 286, which implicitly underpinned the argument for Mr Seal:
But the words first introduced in section 16(2) of the 1930 Act ("No proceedings, civil or criminal, shall be brought . . .") appear to be clear in their effect and have always been thought to be so. They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them. To uphold the decision of the three courts which have already considered the issue in this case and decided it in accordance with a clear consensus of professional opinion is not to sanction a departure from what Viscount Simonds rightly considered to be a fundamental rule.
19. Counsel for Mr Seal contended that he had in effect complied with the requirements of section 139(2), or should be deemed to have done so. This is, with respect, an impossible argument. Mr Seal made no application for anything. He issued proceedings claiming damages. And his proceedings were not issued in the High Court. It would frustrate the obvious purpose of the subsection to treat a claim for damages in the county court as an application for leave in the High Court.
20. It was submitted for Mr Seal in the House, although not below, that the effect of section 139(2) was to infringe his right of access to the court held by the European Court in Golder v United Kingdom (1975) 1 EHRR 524 to be implied in article 6 of the European Convention on Human Rights. This is not an argument I can accept. The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones  QB 296. An applicant with an arguable case will be granted leave. Mr Seal's undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213. It is not irrelevant that restrictions similar to those in sections 141(2) of the 1959 Act and 139(2) of the 1983 Act were and are to be found in corresponding Irish legislation, the Mental Treatment Act 1945, section 260, and the Mental Health Act 2001, section 73.
21. In my opinion the Court of Appeal reached the right decision for essentially the right reasons, and I wholly agree with the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I would accordingly dismiss the appeal. The costs order made below will not be disturbed. The appellant's costs in the House as an assisted person will be the subject of assessment in the usual way.
22. I have read the speeches of Lord Bingham of Cornhill, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood in draft. Baroness Hale's speech reflects my own views with great force and clarity. Were it not that in agreement with Baroness Hale, I regard an issue raised on this appeal as being extremely important, I would have been content to agree with the contents of her speech.
23. The issue that I regard as being of particular importance is the approach that should be adopted by the courts in determining what Parliament intends when legislation states in peremptory terms that there should be compliance with a procedural requirement before bringing proceedings. In other words does Parliament intend that proceedings brought in breach of the requirement should be a nullity?
24. The legislative requirement in question is contained in section 139(1) and (2) of the Mental Health Act 1983. That section provides so far as relevant;
25. Section 139 clearly expresses the requirement to obtain leave in mandatory terms but equally clearly it does not expressly state what is to be the consequence of not obtaining leave to bring the proceedings; that is left to be inferred. In particular, section 139 does not state expressly that any proceedings commenced without leave are to be a nullity. Despite this that is what the courts below concluded was what Parliament intended by section 139.
26. I cannot accept that this should be inferred to be Parliament's intention because as the facts of this case illustrate to do so may cause grave injustice, at least in a minority of cases, while to construe the provision as merely giving the court a discretion to strike out the proceedings cannot cause any injustice to those for whom the provision is meant to provide protection. This is because the person against whom the proceedings are brought at most would need to write a letter to the court drawing attention to the fact that the proceedings require leave and this had not been obtained. Such a letter would place that person in exactly the same position as if the claimant had, in accordance with the section, requested leave before commencing his action. If the proceedings are ones in which the court would give leave it should do so retrospectively if this would prevent injustice occurring, but, if it was a case in which leave should be refused the court could in addition to refusing leave strike out the proceedings.