Judgments - Seal (FC) (Appellant) v. Chief Constable of South Wales Police (Respondent)

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    27.  I of course appreciate, as Parliament must be taken to have appreciated, that it will usually be section 139 together with the relevant provisions of the Limitation Acts that could cause the injustice in a case of this nature. Absent the expiry of a limitation period a claimant would not suffer the disadvantage suffered by the Appellant claimant. Furthermore I accept it is always desirable for a claimant not to leave it until the limitation period has almost expired before bringing proceedings. However, the Appellant at the time he commenced proceedings was acting in person and he can complain justifiably that if his proceedings were not totally ineffective a judge could take into account all the circumstances of the case, including any culpable delay on his part before deciding whether to treat the proceedings as a nullity.

    28.  Furthermore there is a variety of circumstances in which treating proceedings automatically as a nullity can cause injustice which do not involve the expiry of a limitation period and, even in cases involving a limitation period, the limitation period can be exhausted without the claimant being at fault. For example the fact that the case falls within section 139 may only be discovered years after the proceedings were commenced.

    29.  What makes the appeal important is the principle that is involved. The principle arises because section 139 places a procedural restriction on access to the courts. The approach at common law to such restrictions was made abundantly clear by Viscount Simmonds in Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1960] AC 260 at p. 286 where he said;

    "It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is … a 'fundamental rule' from which I would not for my part sanction any departure"

    30.  In R v Bracknell JJ, Ex p Griffiths [1976] AC 314, Lord Edmund Davies who gave the main judgment cited Viscount Simmonds' statement in Pyx Granite and referred, at p 334, to Bradford Corp v Myers [1916] 1 AC 242 and Magor and St Mellons RDC v Newport Corp [1952] AC 189, which he said had been correctly relied on as requiring the "courts [to] construe very narrowly any substantive or procedural barriers against having recourse to courts for the rectifying of wrongs". Despite this the House of Lords accepted that the effect of section 141(2) of the earlier Mental Health Act 1959 was to render criminal proceedings a nullity. However in my view this decision is far from conclusive as to the outcome of this appeal since the question of whether non compliance meant the criminal proceedings were a nullity was not in issue before the House of Lords, this having been conceded by eminent leading counsel for both parties in the court below, without objection by myself as amicus.

    31.  At this distance of time I cannot explain my inactivity or counsels' concession. However, I would suggest this possible failure of counsel is hardly a justification for departing from the principle Lord Edmund Davies identified. The fact remains that the present issue was not debated in Griffiths and that case is properly only regarded as binding authority as to the scope and not the effect of Section 141.

    32.  There are two other reasons why Griffiths has to be approached with caution in relation to the present appeal. The first reason is that the decision was given prior to London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182. In that case Lord Hailsham of Marylebone LC in an administrative law context, in a celebrated passage of his speech provided much needed illumination on the consequences of non compliance with a statutory provision. Lord Hailsham said, at pp 189-190

    "When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."

    33.  In R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] I WLR 354 I sought to give guidance based on Lord Hailsham's approach which both parties to this appeal accepted was authoritive. I suggested in the majority of cases the court would have the task of determining what would be the just decision to take in all the circumstances, Parliament having not made clear what were to be the consequences of non-compliance with the statutory requirement. This approach in fact accords with the reasoning in the much earlier case of Rendall v Blair (1890) 45 ChD139 which illustrates the importance of distinguishing between the need to comply with a statutory requirement and the consequences of a provision like section 139 being breached. The decision in that case was followed in a judgment of Lindsay J in In re Saunders ( A Bankrupt) [1997] Ch 60.

    34.  The second reason why Griffiths is not determinative of this appeal is because it involved criminal and not civil proceedings. It involved the non compliance with a statutory provision that provided a protection against prosecution for a potential defendant to criminal proceedings. There is a fundamental distinction between civil and criminal proceedings when it comes to exercising a discretion to allow a procedural contravention to be remedied. In a criminal case there is no question of the defendant being deprived of his right to access to a court to protect his rights. On the contrary the statutory requirement is a protection against his being prosecuted. If the court has a discretion to dispense with the requirement, it would be a rare situation in which a court would deprive a defendant of a protection that Parliament had intended him to have before he was convicted. To treat the proceedings as a nullity would merely reflect the reality of the situation. It cannot properly be assumed to be the position that the same words are intended to have the identical consequences in a criminal and civil context.

    35.  My conclusion is therefore that for the reasons my noble and learned friend, Baroness Hale and I have set out, Parliament certainly did not make it clear that civil proceedings commenced without leave contrary to section 139 were to be a nullity. This being the case as a matter of fundamental principle, the Appellant's access to the courts cannot be denied without a judge determining whether this is the appropriate consequences in all the circumstances. For this purpose the judge to whom I refer is a High Court judge since it is only a High Court judge who has power to give leave.

    36.  I would therefore allow the appeal.


My Lords,

    37.  I agree with my noble and learned friend Lord Woolf, that this appeal should be allowed. There is one short question before us: what did Parliament intend should be the consequence if proceedings in respect of an act purporting to be done under the Mental Health Act 1983 are begun without first obtaining the leave of a High Court judge? Are those proceedings a complete nullity or may they simply be stayed unless and until the leave required by section 139(2) of the 1983 Act is granted? Usually it will not matter. But in this case a litigant in person, probably in ignorance of section 139(2), began his proceedings just before the limitation period expired. If the proceedings are a nullity, he will lose that part of his claim which is based upon the purported use of Mental Health Act powers by the police; if they are not a nullity, he may still apply to a High Court judge for leave to pursue that part of his claim.

    38.  The question is one of statutory construction. Despite the antiquity of this provision, which dates back to the Mental Treatment Act 1930, the question has never arisen directly before. But it concerns a fundamental constitutional right - the right of access to the courts. It also concerns the exercise of that right by a peculiarly vulnerable group of people - people who are or have been the subject of compulsory detention under the Mental Health Act 1983. The courts here - and in Strasbourg - have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints: see particularly Golder v United Kingdom (1975) 1 EHRR 524 in Strasbourg and R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 in the United Kingdom. The courts should be no less vigilant to safeguard the rights of mental patients, most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims.

    39.  The principles to be deduced from those three UK cases are clear. They are conveniently summed up in the opinion of Lord Cooke of Thorndon in Daly, at paras 30 to 31:

    "The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. . . . To essay any list of these fundamental, perhaps ultimately universal, rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the Woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."

    40.  Daly was a case about the Home Office policy rather than about the interpretation of legislation. But Simms was a case about legislation. In a famous passage, Lord Hoffmann emphasised the importance of the principle of legality, at [2000] 2 AC 115,131:

    "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. . . . But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

    41.  I approach the task of construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived of access to the courts, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant.

    42.  The express words are:

    "No civil proceedings shall be brought . . . in respect of any such act without the leave of the High Court; . . "

    These words say nothing about what is to be the consequence if, through ignorance or error, proceedings are in fact started without leave. The result contended for by the defendant may have been what Parliament intended. But there are other possible results which were known to Parliament when this provision was first enacted.

    43.  One possibility is exemplified by Rendall v Blair (1890) 45 Ch D 139, where the Court of Appeal had to construe section 17 of the Charitable Trusts Act 1853. This provided that before any proceeding for obtaining any relief against a charity were commenced, "there shall be transmitted" notice in writing to the Charity Commissioners, who would then decide whether to authorise the proceedings; and no such proceedings "shall be entertained or proceeded with" by the court except in accordance with their authorisation. Those words are no less peremptory than those of section 139(2); but the Court of Appeal unanimously held that, in the words of no less a judge than Bowen LJ, at p 158:

    "Unless the duty is complied with by the litigant, the Court must hold its hand. But it does not oblige the Court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last."

    44.  Another possibility, even more considerate to a claimant, is exemplified by the Limitation Acts. Section 2 of the Limitation Act 1980, adopting the wording of earlier statutes, states quite clearly that "An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." Yet such an action is perfectly valid unless and until the defendant chooses to take the point. The court will not take it of its own motion. But there is an intermediate course between complete invalidity and giving the choice to the defendant: either the court of its own motion or the defendant may take the point.

    45.  It is fair to conclude that Parliament did not intend to adopt the Limitation Act model and place the whole burden upon the defendant. As my noble and learned friend, Lord Bingham of Cornhill, has explained, section 16 of the Mental Treatment Act 1930 replaced a provision which was first enacted in section 12 of the Lunacy Acts Amendment Act 1889 and consolidated in section 330 of the Lunacy Act 1890. Section 12(1) provided a substantive defence to both civil and criminal proceedings for people operating the Act's compulsory procedures if they had acted "in good faith and with reasonable care". The equivalent defence still exists, in section 139(1) of the 1983 Act, protecting such people "unless the act was done in bad faith or without reasonable care".

    46.  Section 12(2) of the 1889 Act provided a procedural protection. Civil or criminal proceedings might be stayed if there was no reasonable ground for alleging a want of good faith or reasonable care on the part of the defendant. The burden was placed on the defendant, both of raising the point and of showing a lack of reasonable grounds. Section 16(2) of the 1930 Act was clearly intended to strengthen the procedural protection given to defendants: no civil or criminal proceedings were to be brought without leave of the High Court, and leave could only be granted if the claimant could satisfy the court that there was substantial ground for the contention that the defendant had acted in bad faith or without reasonable care. That provision was carried through into section 141(2) of the Mental Health Act 1959. The burden was placed on the claimant, both of obtaining leave and of showing substantial grounds.

    47.  Section 141 was in turn replaced by section 139 of the Mental Health Act 1983, which consolidated the remaining provisions of the 1959 Act with amendments made in the Mental Health (Amendment) Act 1982. These watered down the protections of section 141 of the 1959 Act in three significant respects. First, it was no longer necessary to get the leave of the High Court to bring criminal proceedings in respect of acts purporting to be done under the Mental Health Act. Instead, the second limb of section 139(2) provides:

    "and no criminal proceedings shall be brought . . . except by or with the consent of the Director of Public Prosecutions."

    Secondly, leave could now be granted without showing substantial grounds for the contention that the defendant had acted in bad faith or without reasonable care. The test subsequently laid down by the Court of Appeal in Winch v Jones [1986] QB 296 was simply whether the case deserved further investigation by the court: the claimant was not required to prove a prima facie case. Thirdly, neither the substantive defence nor the procedural protection now applies to proceedings against the Secretary of State or the NHS authorities.

    48.  The 1982 amendments were the product of an inter-departmental review of the 1959 Act. This was prompted and informed by the views both of users of the mental health services, represented by organisations such as MIND, and of the professional bodies, principally the Royal College of Psychiatrists. Following its Consultative Document, A Review of the Mental Health Act 1959, published in 1976, the Government published a white paper, Review of the Mental Health Act 1959, Cmnd 7320, in 1978. Both contain chapters on safeguards for staff. The white paper sums up the competing concerns thus, at para 7.2:

    "The Consultative Document discussed various criticisms of the section, notably that it is an unwarranted restriction on access to the courts in that it is not founded on any evidence that psychiatric patients are likely to be vexatious litigants. Indeed, MIND argue that experience over the years shows that psychiatric patients seldom resort to legal action. On the other hand, the Government is aware of staff anxiety about their legal position."

    Staff anxiety seemed to have increased over recent years. But much of this was because of uncertainties about their legal position when treating, controlling or searching patients - matters which were not expressly dealt with in the 1959 Act or in official guidance. Proposals to clarify their position or give guidance would help to reassure staff. Nevertheless, at para 7.4, the white paper concluded:

    "The Government recognises the need to retain some 'long stop' provision . . . to reassure staff that they will not be involved unnecessarily in ill-founded court cases - to have to appear in court can be a difficult and stressful experience - but absolute protection against the very few litigious patients cannot be achieved without an unacceptable loss of rights for all patients. The Government therefore proposes some changes to simplify and clarify the present position."

    Thus, while the Government acknowledged that there were very few litigious patients against whom the staff required protection, it was understandably anxious that staff should not be subjected to baseless claims. There was a concern that staff would otherwise be deterred from doing their job properly and acting in the best interests of the patients themselves.

    49.  Nowhere, however, is there any discussion of the consequence if proceedings are brought without first obtaining leave. The purpose was and remains the protection of staff. But protection from what? It cannot have been intended or expected that staff would be protected from all knowledge of possible claims. The 1930 Act had expressly required that notice of an application for leave be given to the proposed defendant. Good practice and common courtesy, then as now, would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave. What staff are protected from is having to defend a baseless action. Such protection is not undermined if an action is, whether through ignorance or inadvertence, begun without leave and the defendant takes the point or the court takes it of its own motion. The burden is still on the claimant to establish that the case should go further.

    50.  Nor was there any discussion of the point in the case of R v Bracknell JJ, Ex p Griffiths [1976] AC 314. That case decided that the acts of staff controlling compulsory patients were acts "in pursuance of" the Mental Health Act to which the protection of section 141 of the 1959 Act applied. A Broadmoor nurse had been convicted of assaulting a patient at the end of visiting time. The conviction was quashed on the ground that the prosecution had been launched without first obtaining the leave of the High Court under section 141(2). It was conceded that, if leave was required, the proceedings were a nullity.

    51.  Even if that concession were correctly made by the very distinguished counsel who made it, it does not follow that it applies to the leave requirement in both civil and criminal proceedings under the 1983 Act. The 1983 Act drew a deliberate distinction between civil and criminal proceedings. Although both are mentioned in section 139(2) it does not follow that the consequences of non-observance are identical.

    52.  The mere fact of conviction does not prove that a prosecution should have been brought. Prosecutions are brought, not to serve any private interest, but to protect the public interest. That is why those who exercise prosecutorial discretion, whether the Attorney General, the Director of Public Prosecutions or the Crown Prosecution Service, take a wider range of factors into account in deciding whether or not to prosecute than the High Court will consider when deciding whether or not to grant leave to bring a civil action. The High Court is concerned only to protect a defendant from unmeritorious claims. It is not concerned to protect a defendant from meritorious claims.

    53.  If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant. If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred. The fact that leave is required at all may not emerge until a relatively late stage in the proceedings. That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no-one noticed at the time is an affront to justice.

    54.  My Lords, I would not interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language so to do. The statutory language makes it clear that if anyone, including the claimant, appreciates the point, then leave must be obtained. It does not make it clear that if no-one, including the court or the defendant, does so, the proceedings are a nullity. Halfway houses are usually to be preferred to absolute extremes.

    55.  The principles of the common law would lead me to this conclusion irrespective of the European Convention on Human Rights. Access to the courts is one of the most fundamental principles of the rule of law upon which our democracy is based. But access to the courts is also protected by article 6 of the Convention. Restrictions on that access are permitted, as long as they serve a legitimate aim and are proportionate to it. Protecting defendants against unmeritorious claims is a legitimate aim. Proportionality is another matter.

    56.  In Ashingdane v United Kingdom (1985) 7 EHRR 528, the European Court of Human Rights said this, at para 57:

    "Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication, since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals'. . . .

    Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved." (emphasis supplied)

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