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.
The conclusion is set out at paragraphs 40-42:
40. With or without resort to Hansard, in our judgment s.329 stipulates only that a claimant who sues someone for assaulting him in trying to prevent a crime or to apprehend him for committing it will have to show merits sufficient to defeat the special statutory defence if his action is to be allowed to proceed. It makes it legitimate to visit in costs an application which is made later than it should have been, but it does not either explicitly or implicitly involve the drastic step of nullifying proceedings, however sound, which have been initiated without first clearing this hurdle.
41. It follows, as it does in limitation cases, that a lawsuit within s.329, begun without permission, can properly proceed to trial if the permission point is not taken. Where the claim is plainly eligible for permission, this is an economical and practical course. If it were otherwise, the point could not only be unanswerably taken against the claimant at an advanced stage of the proceedings, and costs be resisted on the ground that the progress of the action without permission has been entirely unlawful, but the judge would be required to take the point at trial. Moreover, a perfectly sound claim issued late in the limitation period could be defeated, or at least placed at risk, by an opportunistic motion to strike it out, brought in the knowledge that by the time permission could now be obtained the claim will be out of time. In any such event a case which everyone knows is perfectly sound would collapse. This, of course, is the effect of the decision in Seal on actions within s139 of the Mental Health Act 1983; but it illustrates why it took a compelling legislative history to drive the House, by a bare majority, to a conclusion against which principle required it to lean. There is no such background or evident purpose to s.329.
42. We hold accordingly, in agreement with Owen J, that the requirement of s.329 of the Criminal Justice Act 2003 that the court's permission must be obtained to bring proceedings in the circumstances specified by the section is procedural and directory. It will follow that if such proceedings are brought without permission the defect can, if appropriate, be cured on application to the court, which can reflect in costs its view of the conduct of the proceedings. It will be a sensible use of initial correspondence for defendants to draw attention, where it potentially applies, to s.329 and to indicate whether they propose to take any point on it.
Adorian's cross-appeal on costs was allowed.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
TORT — Trespass to person — Claimant convicted of imprisonable offence — Claim alleging personal injuries suffered by use of disproportionate force in course of arrest — Statutory provisions that “proceedings … may be brought only with permission of court” — Whether procedural and directory requirement — Whether proceedings brought without obtaining permission void — Whether curable — Criminal Justice Act 2003, s 329(2)
The requirement of s 329(2) of the Criminal Justice Act 2003, that the court’s permission be obtained to bring civil proceedings for trespass to the person where the claimant had been convicted of an imprisonable offence committed on the same occasion as the alleged tort, was procedural and directory, and therefore proceedings brought without such permission were not void but could be cured on application to the court.
The Court of Appeal so held in a reserved judgment, dismissing the appeal of the Commissioner of Police of the Metropolis from the decision of Owen J  WLR (D) 158 on 19 May 2008 (i) to refuse the commissioner’s application to dismiss for want of permission under s 329(2) to proceedings brought by the claimant, Anthony Adorian, claiming damages for injuries suffered by the use of disproportionate force by the police in the course of his arrest, and (ii) to grant the claimant permission to continue the proceedings.
SEDLEY LJ, giving the judgment of the court, said that in literal terms s 329 referred to proceedings being brought, not simply pursued or prosecuted. The purpose of the section was to protect people from being baselessly sued by criminals for doing no more than try to arrest them or stop them offending. Such offenders were not debarred from suing in a proper case, but as a matter of legislative and public policy they were debarred unless and until a suitably strong case was shown. One aspect of s 139 of the Mental Health Act 1983 which had contributed to the majority decision in Seal v Chief Constable of the South Wales Police  1 WLR 1910 was that the provision applied equally to criminal and civil proceedings: since the criminal limb of the section was consistent only with proceedings being void if initiated without prior permission, the same should be true of its civil limb. There was no such duality in s 329, and consequently no comparable need to avoid inconsistency. To render void any claim covered by s 329 which had been initiated without permission would create potentially unmanageable time difficulties for claimants with perfectly sound cases. The imposition of a jurisdictional bar on access to the courts was a drastic measure, in contrast to a requirement that proceedings, once instituted, could be struck out if they did not pass muster, whether on specified statutory criteria or because they had no realistic chance of success. S 329 stipulated only that a claimant who sued someone for assaulting him in trying to prevent a crime or to apprehend him for committing he would have to show merits sufficient to defeat the special statutory defence if his action were to be allowed to proceed. It made it legitimate to visit in costs an application which was made later than it should have been, but it neither explicitly nor implicitly involved the drastic step of nullifying proceedings, however sound, which had been initiated without first clearing that hurdle.
Adorian v Commissioner of Police of the Metropolis  EWCA Civ 18; WLR (D) 23
CA: Sedley, Keene and Smith LLJ: 23 January 2009
Appearances: Tim Owen QC and Phillippa Kaufmann (Bhatt Murphy Solicitors) for the claimant; Edward Faulks QC and Paul Stagg (Director of Legal Services, Metropolitan Police) for the defendant.
Reported by: Ken Mydeen, Barrister.
Mr T Owen QC and Ms P Kaufmann (instructed by Messrs Bhatt Murphy) for the Claimant/Respondent
Mr E Faulks QC and Mr P Stagg (instructed by Directorate of Legal Services) for the Defendant/Appellant
ICLR report -  WLR (D) 23