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Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB)

(1) A court faced with an application for permission under s139(2) must (a) balance the applicant's interest to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interest of the respondent not to be subjected to the risk of being harassed by baseless claims, and (b) consider whether the proposed claim has a real prospect of success. (2) On the facts, permission was granted. (3) Under the relevant test under the Limitation Act 1980 (which was explained) the 3-year limitation period on the assault claim was dis-applied.

Extracts from judgment

6. The leading authority on section 139 (2) remains the Court of Appeal decision in Winch v Jones (1986) 1 QB 296. In that case, the judge at first instance had refused leave on the ground that the applicant had not satisfied him that she had a prime facie case in negligence against the proposed defendants. The appeal was allowed on the basis that the judge had applied too stringent a test. Sir John Donaldson MR said at page 305:

"As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interest of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims, by those who have been treated under the Acts. In striking such a balance, the issue is not whether the applicant has established a prime facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant's complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed. "

15. Accordingly, I conclude that a court faced with an application for permission under section 139 (2) of the Act must strive to apply the test set out by Sir John Donaldson MR in Winch v Jones (paragraph 6 above), with the proviso that the court should also consider whether, in all the circumstances, the proposed claim has a real prospect of success. For the reasons set out in Section 4 below, that proviso makes no difference to my conclusions on this application.

27. For all these reasons, it seems to me that the proposed claimant's claim gets over the necessary threshold: it is not frivolous, vexatious or an abuse and has a real prospect of success. I accordingly grant the necessary permission under section 139 of the Act.

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