18 May 2009
by Robert Edward SEAL
against the United Kingdom
lodged on 13 November 2007
STATEMENT OF FACTS
The applicant, Mr Robert Edward Seal, is a British national who was born in 1944 and lives in Merthyr Tydfil. He is represented before the Court by Fisher Meredith Solicitors, a law firm practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the early evening of 9 December 1997, the applicant went to his mother’s house in Merthyr Tydfil but could not park his car because of other vehicles. He went into his mother’s house having been unable to alert the owners of other vehicles by sounding his horn. He decided to telephone the police to complain about the obstruction and his mother tried to stop him. At some stage, someone contacted the police and they arrived at the house some minutes later.
There is a dispute about what occurred subsequently. The applicant was arrested inside his mother’s house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside the house. The police claim that at that stage, they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section 136(1) of the Mental Health Act 1983 (“the 1983 Act” – see further below).
The applicant was taken to St Tydfil’s hospital where he was detained pursuant to section 136(2) and, subsequently, section 2 of the 1983 Act until 18 December 1997, when his release was ordered by a mental health review tribunal.
On 5 August 2003, the applicant’s then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant’s detention under section 136. On 8 December 2003, the applicant (who by then was no longer legally represented) issued proceedings in the County Court seeking damages from the Chief Constable of South Wales Police for a variety of torts arising out of the events of December 1997. He had not obtained leave of the High Court, as was required by section 139(2) of the 1983 Act.
On 4 May 2004, the respondent filed both a defence to the claim on the grounds of section 136 of the 1983 Act and an application for the claim to be struck out on the grounds that leave from the High Court, as required under section 139(2), had not been obtained prior to the proceedings being brought.
On 5 July 2004, the County Court ordered that the whole claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by the High Court. On 27 August 2004, permission to appeal this decision was granted.
On 18 October 2004, the Circuit Judge varied the order of the County Court. He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under the 1983 Act. In relation to the applicant’s complaints regarding his detention under the 1983 Act, however, the Circuit Judge dismissed the applicant’s appeal and found the legal proceedings in that regard to be a nullity. The applicant was granted leave to appeal to the Court of Appeal.
Before the Court of Appeal, the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under the 1983 Act until the necessary leave had been obtained. On 19 May 2005, the Court of Appeal dismissed the applicant’s appeal. Leave to appeal to the House of Lords was granted.
The argument before the House of Lords focussed on the consequences in terms of section 139(2) of bringing proceedings without prior leave from the High Court. The respondent argued that such a failure rendered the proceedings a nullity. The applicant, on the other hand, argued that lack of leave was a procedural irregularity which could be corrected.
On 4 July 2007, the House of Lords handed down its judgment and, by a majority of three to two, dismissed the applicant’s appeal.
Lord Bingham of Cornhill, of the majority, considered the applicant’s argument that section 139 infringed his right of access to court but concluded that this was not an argument that he could accept. He noted (at paragraph 20):
“The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones  QB 296. An applicant with an arguable case will be granted leave. Mr Seal’s undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213.”
Similarly, Lord Brown of Eaton-under-Heywood considered that Parliament had made it clear under section 139 that relevant proceedings brought without leave were a nullity. As to the Article 6 argument advanced by the applicant, Lord Brown said (at paragraph 75):
“To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful. Such an approach cannot sensibly be seen (as Baroness Hale suggests) ‘to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant’. Nor can it be seen to have ‘an effect out of all proportion to the aim which it is attempting to pursue.’ Of course, in a rare case (perhaps such as this one) a combination of circumstances—ignorance of the law (ie of section 139(2)), the delay in the issue of proceedings until the very end of the six year limitation period, and the inflexibility of section 2 of the Limitation Act 1980 itself (assuming the defendant chooses to take the Limitation Act defence) will operate to deprive the prospective claimant of his claim. But that, of course, is equally so in the case of a litigant in person ignorant of the six year limitation period itself. In each case the loss of the claim is the price paid for certainty—just as there is a price to be paid for the established principle (and the assurance it provides) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to article 6 and it seems to me unsurprising that the point was not even taken in the courts below.”
Baroness Hale of Richmond, dissenting, considered the purpose of section 139 – to protect staff working in the mental health sphere from having to defend baseless actions – and concluded (at paragraph 53) that:
“If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant. If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred. The fact that leave is required at all may not emerge until a relatively late stage in the proceedings. That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no-one noticed at the time is an affront to justice.”
Baroness Hale also reviewed the jurisprudence of this Court regarding access to court. She was not persuaded that section 139 achieved the aim which it sought to achieve, commenting that the assumption that every person who had been subject to the compulsory powers in the Mental Health Act was a potential vexatious litigant was not rational. She also highlighted the anomalous result of the legislation in the applicant’s case, where his legal claim was not directed against mental health professionals but against the police, and did not consider that it had been established why the police, in such circumstances, would require the additional protection from legal proceedings afforded by the 1983 Act.
As to the proportionality of the provision, Baroness Hale concluded (at paragraph 59) that:
“Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. If section 139(2) has the effect that proceedings are always a complete nullity, thus depriving a claimant of a good claim, that is an effect out of all proportion to the aim which it is attempting to pursue. Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response.”
Considering the merits of the claim itself, Baroness Hale noted that the police’s case was not without difficulty and considered that the questions which arose deserved to be addressed at the trial of the claim.
Also dissenting, Lord Woolf accepted that it was not desirable to leave it until the limitation period has almost expired before bringing proceedings. However, he noted that the applicant was acting in person and considered that he could complain justifiably that if his proceedings were not totally ineffective a judge could take into account all the circumstances of the case, including any culpable delay on his part, before deciding whether to treat the proceedings as a nullity. He agreed with Baroness Hale that the appeal should be allowed.
B. Relevant domestic law
1. Mental Health Act 1983
Section 136 of the 1983 Act, as in force at the time of the applicant’s arrest and the commencement of the legal proceedings, provided as follows:
“(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.”
Section 139 provided:
“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.”
The relevant provisions of the 1983 Act have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes.
Section 2 of the 1983 Act allows for detention for the purposes of assessment for up to 28 days.
2. The Limitation Act 1980
Section 2 of the Limitation Act 1980 provides as follows:
“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued”
The applicant complains under Article 6 § 1 of the Convention that the decision to strike out his claim in respect of assault and false imprisonment deprived him of access to court. He further complains under Article 6 § 1 together with Article 14 that the provisions of section 139(2) of the Mental Health Act 1983 discriminate against litigants seeking to take legal action arising from detention under the compulsory powers contained in the 1983 Act.
QUESTION TO THE PARTIES