Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court; Seal v. Chief Constable of South Wales Police (2007) UKHL 31 distinguished because of differences from s139 MHA 1983; permission now granted.'
Adorian v Commissioner of Police of the Metropolis (2009) EWCA Civ 18
- Adorian v Commissioner of Police of the Metropolis (2008) EWHC 1081 (QB)
C resisted arrest and was convicted of obstruction. He sustained injuries during arrest and issued a claim for damages for assault and battery. He ought to have sought permission under s329(2) Criminal Justice Act 2003 (as the claim related to trespass to the person and the claimant was convicted of an imprisonable offence on the same occasion) but failed to do so.
D argued that failure to obtain permission rendered the proceedings a nullity; C now sought permission (and extension of time).
Failure to comply with s329(2)
The failure did not render the proceedings a nullity, but rather amounted to a procedural irregularity that can be cured by subsequent application at the discretion of the court:
- Recourse to the courts is not to be excluded except by clear words (Pyx Granite v Ministry of Housing and Local Government  AC 260). The wording of s329 can accommodate C's contended construction (Rendall v Blair (1890) 45 Ch D 139, Re Saunders (a bankrupt)  Ch 60 considered).
- s139 Mental Health Act 1983 was different: (i) it had a legislative history making clear permission was mandatory; (ii) it applied equally to civil and criminal proceedings, and criminal proceedings taken without permission would clearly be a nullity (Seal v. Chief Constable of South Wales Police (2007) UKHL 31 distinguished).
- D's construction would have the effect of defeating other causes of action brought in the proceedings that would otherwise not be caught by s329.
- Protection for prospective defendants is not lost on C's construction.
Test for permission
C relied on s329(3) which required evidence that D's act was grossly disproportionate. C was walking before arrest so it was clearly to be inferred that the injury was sustained in the course of arrest. An expert had described the injury as appalling and it would plainly be open to a court to conclude that grossly disproportionate force was used.
It was appropriate to grant permission notwithstanding that the application was not made prior to the commencement of proceedings:
- Justice required determination by a court.
- The action in negligence was commenced within the limitation period but would now be time-barred if retrospective permission not given. The claim in trespass would also now be time barred (the limitation period for assault and battery was reduced from 6 to 3 years by A v Hoare  UKHL 6).
- There would be no prejudice to D.
- Failure to apply was not deliberate and in all the circumstances understandable (s329 relates to civil proceedings but is contained in a lengthy criminal statute).