Permission to issue proceedings

Seal v Chief Constable of South Wales Police HL TLR 5 July

On 9 December 1997 the claimant was arrested for causing a breach of the peace and removed by the police to a place of safety under s136(1) of the Mental Health Act 1983, where he was detained for over a week. On 8 December 2003, on the eve of expiry of the six-year limitation period, the claimant issued proceedings against the chief constable in the county court. The chief constable applied to strike out the particulars of claim on the ground that the claimant had not obtained leave as required by s139(2) of the Act before issuing proceedings. The important question was whether, in requiring a particular condition to be satisfied before proceedings were 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. The circuit judge struck out the defendant’s claim on appeal from the district judge. The Court of Appeal unanimously dismissed the claimant’s appeal from the decision of the circuit judge. The House of Lords, by only a 3:2 majority, Lord Woolf and Lady Hale dissenting, dismissed the appeal, holding that a claim brought in respect of an act purporting to be done under the powers of the Mental Health Act 1983 was a complete nullity if the claimant had failed to obtain the leave of a High Court judge under s139(2) of the Act before issuing proceedings.