Mental disorder — Practice — Leave to bring proceedings — Claim by patient for damages against police officers — Failure to obtain leave to bring proceedings — Whether proceedings rendered nullity — Whether subsequent grant of leave permissible — Mental Health Act 1983, s139(2). It was a mandatory requirement to seek leave from the High Court under s 139(2) of the Mental Health Act 1983 to bring civil proceedings for actions purported to be done under that Act. Failure to seek leave rendered the proceedings a nullity.
The Court of Appeal so held when dismissing Robert Seal's appeal from Judge Graham Jones, sitting at Swansea County Court on 18 October 2004, who varied the district judge's order striking out his claim for damages against the Chief Constable of South Wales Police on the ground that Mr Seal, who was arrested by the police for breach of the peace and removed to a place of safety under s136 of the 1983 Act, had not obtained leave under s 139(2). The judge restored that part of the claim which did not relate to the police's purported exercise of the s 136 power.
Section 139(2) provides:
SCOTT BAKER LJ said that s 139(2) provided a filter for proceedings arising in respect of acts purporting to be done under the mental health legislation. In respect of civil proceedings leave of the High Court was required. When proceedings were brought without such leave what was the consequence? Were they a nullity or could the situation be remedied by a subsequent grant of leave, possibly with the proceedings being stayed in the meantime? The wording of subsection (2) was strong. It was difficult to envisage more mandatory words than the opening words. The wording continued emphasising the ambit of the prohibition, " against any person in any court in respect of any such act." The wording of the criminal proceedings prohibition followed save that the filter was provided by the DPP. As a matter of construction it was impossible to conclude that failure to obtain the necessary consent should have a different consequence depending on whether the proceedings were civil or criminal. The consequences had to be the same in both cases: either the proceedings were a nullity or the situation was remediable. It was impossible to envisage criminal proceedings to which s 139(2) applied, commenced other than by the DPP or with his consent, being treated other than as a nullity. There was no reason to treat civil proceedings differently. It was never authoritatively decided whether s 139(2) was mandatory or merely directory. Pountney v Griffiths  AC 314 was a strong pointer that failure to obtain leave in the present case was a defect incapable of subsequent remedy. His Lordship, referring to the submission that the modern approach in civil proceedings was to treat requirements of the present kind as directory not mandatory where possible to do so (see R v Secretary of State for the Home Department, ex p Jeyeanthan (2000) 1 WLR 354 and R v Sekhon (2003) 1 WLR 1655), said that courts now would strive anxiously to interpret procedural provisions flexibly where that furthered the interests of justice. But, where Parliament made it absolutely clear what the consequences were of failure to take a particular step, it was not for the courts to import a discretion or flexibility that was not there. The wording of s 139(2) was very clear. Failure to obtain the necessary consent before the proceedings were begun rendered them a nullity.
CLARKE LJ and OUSELEY J agreed.
Seal v Chief Constable of South Wales Police.
CA: Clarke, Scott Baker LJJ and Ouseley J: 19 May 2005
Graham Brodie (Morgans, Cardiff) for the claimant; Jeremy Johnson (Dolmans, Cardiff) for the Chief Constable.
Reported by: Alison Sylvester, barrister.