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.