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

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    57.  To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. This is not only empirically unproven. It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever. On the one hand, therefore, section 139(2) goes too far. On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself. If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection.

    58.  This case is an excellent illustration. The police case is that Mr Seal was first arrested inside his mother's home for a breach of the peace. Having been taken outside he was then detained under section 136(1) of the 1983 Act:

    "If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety . . . "

    Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest.

    59.  Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends. There will be cases in which the operation of section 139(2) is proportionate. There will be other cases, quite possibly including this, in which it is not. Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. If section 139(2) has the effect that proceedings are always a compete nullity, thus depriving a claimant of a good claim, that is an effect out of all proportion to the aim which it is attempting to pursue. Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response.

    60.  The police may well have an answer to Mr Seal's claim. But their case is not without difficulty. If he was "removed" under section 136 of the Mental Health Act from his mother's home, he cannot have been "found in a place to which the public have access". If he was arrested in her home for a breach of the peace, and then "removed" under section 136 after they had taken him outside, can it be said that they "found" him there? (To say otherwise would deprive section 136 of much of its usefulness when an arrested person is later discovered to have a mental disorder.) These are questions which deserve to be addressed at the trial of the claim. By no stretch of the imagination is this vexatious. It may not be worth a great deal of money but that is not the point.

    61.  Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. I do not believe that Parliament ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain the High Court's leave in time. Defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims. But if that was Parliament's intention, it is an irrational and disproportionate interference in the Convention right to access to justice. There is no problem in reading down section 139(2) to cure that because there is nothing there to prevent it. However, the best solution would be to remove the procedural requirement altogether, as proposed in Clause 298 of the Draft Mental Health Bill proposed by the Department of Health in 2004 (2004, Cm 6305-1). The Mental Health Bill currently before Parliament, provides such an opportunity.

    62.  For these reasons, in addition to those given by Lord Woolf, I would allow this appeal.

LORD CARSWELL

My Lords,

    63.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. For the reasons which he has given, with which I agree, I would dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    64.  Section 139(2) of the Mental Health Act 1983 provides that: "No civil proceedings shall be brought against any person in any court in respect of [any act purporting to be done in pursuance of the Act] without the leave of the High Court . . .".

    65.  But what if such proceedings are brought without leave? What if, as here, a county court claim form is issued? Are the proceedings of no effect—a nullity—or are they effective, not least to stop time running under the Limitation Act 1980? Each court thus far has held such proceedings to be a nullity. The claimant appeals once more to your Lordships' House.

    66.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and, to the opposite effect, that of my noble and learned friend Baroness Hale of Richmond and I should say at the outset that I am in full agreement with the former rather than the latter. Because, however, your Lordships are divided on the issue, it seems appropriate to add one or two thoughts of my own.

    67.  No purpose would be served by my re-stating here either the facts of the case or the detailed legislative context in which the present issue arises. It may, however, be helpful to summarise in broad terms the three successive legislative regimes under which those vulnerable to complaints being made against them by past or present mental health patients have received down the years a measure of protection from civil and criminal proceedings.

1889-1930

    68.  Prospective defendants were given the right to make summary application to a High Court judge for a stay of proceedings if the judge was satisfied that they had acted "in good faith and with reasonable care".

1930-1982

    69.  The prospective defendant's protection was strengthened: no proceedings, civil or criminal, could be brought without leave of the High Court judge and such leave was not to be given unless the judge was satisfied that there were substantial grounds for alleging a want of good faith or reasonable care.

1982 to date

    70.  Proceedings still cannot be brought without leave but leave to bring criminal proceedings has now to be obtained from the DPP rather than a High Court judge. In deciding whether or not to grant leave the High Court judge (in civil proceedings) and the DPP (in criminal proceedings) no longer has to be satisfied that there are substantial grounds for contending that the prospective defendant has acted in bad faith or without reasonable care. The Court of Appeal in Winch v Jones [1986] QB 296 subsequently decided that the test now is simply whether the case deserves further investigation by the court.

    71.  Since 1930, therefore, it has been impermissible to bring Mental Health Act proceedings ("proceedings" as I shall call them) without leave (although since 1982 such leave has been easier to obtain), and throughout this whole period it has been accepted by all that without such leave any proceedings brought would be a nullity. This was conceded at the highest level in the criminal context in R v Bracknell JJ, Ex p Griffiths [1976] AC 314 (consistently with other authoritative decisions both before and after Ex p Griffiths itself—see para 14 of Lord Bingham's opinion). Furthermore (as again Lord Bingham points out at para 15) there has been no suggestion amongst academic commentators that this concession might have been wrongly made or might not apply in a civil context. Take, for example, Dr Larry Gostin's work, Mental Health Services - Law and Practice 1986 and supplements at para 21.26.2 under the heading Proceedings instituted without leave are a nullity:

    "Proceedings instituted without the required leave or consent are a nullity. Further, a person who acts in pursuance of the statute cannot waive (either expressly or by implication) the protection afforded by section 139. The provision does not create a personal immunity which is capable of being waived, but imposes a fetter on the court's jurisdiction which is not so capable."

    72.  I understand the minority of your Lordships to conclude that in 1983 Parliament might (indeed, if the concession in Ex p Griffiths was correctly made, must) have decided that different consequences should attach to civil proceedings brought without leave from criminal proceedings. For my part, however, I find this an impossible conclusion. The only distinction drawn in 1983 between the two sorts of proceedings was as to who should decide on the grant (or refusal) of leave. Of course prosecutions are brought to serve the public interest rather than any private interest and clearly for that reason a wider range of factors will be taken into account in deciding whether leave should be granted for criminal rather than civil proceedings. But there is no reason to doubt that High Court judges followed that same approach when exercising their power up until 1983. And, more importantly, the change provides no logical basis for supposing that civil proceedings brought without leave (which ex hypothesi would previously have been a nullity) should suddenly in 1983 change character.

    73.  It seems to me quite evident from the legislative history of this provision that from 1930 onwards Parliament intended to make leave a precondition of any effective proceedings. Unlike the position prior to 1930, the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a High Court judge. Absent such leave, albeit he might be notified of a claimant's proposal to proceed against him, he was not to be troubled by such proceedings. The very inflexibility of the provision was an integral part of the protection it afforded. If, however, the appellant's approach were to be adopted, inevitably (unless by chance the court took the point of its own motion) the defendant himself would be drawn into the litigation.

    74.  I cannot see the "procedural requirement" here 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 for 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. Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation. Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, 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.

    75.  There is little more to be said. To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful. Such an approach cannot sensibly be seen (as Baroness Hale suggests) "to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant". Nor can it be seen to have "an effect out of all proportion to the aim which it is attempting to pursue." Of course, in a rare case (perhaps such as this one) a combination of circumstances—ignorance of the law (ie of section 139(2)), the delay in the issue of proceedings until the very end of the six year limitation period, and the inflexibility of section 2 of the Limitation Act 1980 itself (assuming the defendant chooses to take the Limitation Act defence) will operate to deprive the prospective claimant of his claim. But that, of course, is equally so in the case of a litigant in person ignorant of the six year limitation period itself. In each case the loss of the claim is the price paid for certainty—just as there is a price to be paid for the established principle (and the assurance it provides) protecting various classes of prospective defendant against claims in negligence—see, for example, the decision of the House in D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2 AC 373. None of these cases can properly be characterised as a denial of access to the courts contrary to article 6 and it seems to me unsurprising that the point was not even taken in the courts below.

    76.  In short, I agree with all that Lord Bingham says and, with one exception, all that was said in the able judgments 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. Were that not so, indeed, I would hold that the view expressed by the Court of Appeal in Rendall v Blair (not, in fact, necessary for the decision in that case) was wrong.

    77.  For these reasons together with those given by Lord Bingham I too would dismiss the appeal and make the order which he proposes.

 
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