England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
His Hon Judge Graham Jones

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 May 2005

Lord Justice Scott Baker:

1. The issue in this appeal is the effect of s.139(2) of the Mental Health Act 1983 ("the 1983 Act"). That subsection provides a filter for proceedings arising in respect of acts purporting to be done under the mental health legislation. In the case of civil proceedings the leave of the High Court is required. When proceedings are brought without the leave of the court, as required by the subsection, what is the consequence? Are the proceedings a nullity or can the situation be remedied by a subsequent grant of leave, possibly with the proceedings being stayed in the meantime?
2. This is a second appeal but, because the issue raised is an important one of principle, permission to appeal has been granted.
3. The essential background facts are as follows. On 9 December 1997 Mr Seal, the appellant, 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 the other vehicles by sounding his horn. He decided to telephone the police and complain about the obstruction. His mother tried to stop him, but somebody contacted the police and a few minutes later three police officers arrived.
4. There is a dispute about what happened, both inside and subsequently outside his mother's house. Mr Seal was arrested inside the house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside. The police apparently intended to take him home, but as a result of what happened outside they decided to remove him to a place of safety under s.136 of the 1983 Act. He was detained for some days under that Act.
5. At the very end of the limitation period Mr Seal brought proceedings against the South Wales Police for damages. District Judge Singh CBE struck out the whole claim on 5 July 2004 on the grounds that the proceedings were a nullity since Mr Seal had failed to obtain the necessary permission of the High Court under s.139(2). Mr Seal appealed and the matter came before His Honour Judge Graham Jones in the Swansea County Court on 18 October 2004. He varied District Judge Singh's order reinstating that part of the claim that did not relate to the police's purported exercise of power under s.136 i.e. removing him to a place of safety. He held that the district judge was wrong to strike out the whole proceedings and there is no cross-appeal about that.
6. Mr Seal's appeal is on the basis that Judge Graham Jones should have reinstated the whole claim i.e. including that part relating to the purported action under s.136, albeit staying that aspect of it until Mr Seal had obtained the necessary leave of the High Court.
7. So the narrow issue is whether Judge Graham Jones was correct in holding that when civil proceedings are brought without leave in circumstances where leave is required under s.139(2) those proceedings are a nullity.

S.139 provides:

"(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 remainder of the section is irrelevant for the purposes of the present appeal.

The natural meaning of the words against the historical background.

8. It is to be noted that by subsection (1) acts done in pursuance of the Act or legislation made under it do not render the perpetrator liable in the absence of bad faith or negligence.
9. Subsection (2) covers both civil and criminal proceedings. The filter in the case of civil proceedings is leave of the High Court whereas criminal proceedings can only be brought by or with the consent of the Director of Public Prosecutions.
10. The wording of subsection (2) is strong. It opens with the words, "No civil proceedings shall be brought……..." It is difficult to envisage more mandatory words. The wording continues, 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 follows in identical terms save that the filter is provided by the Director of Public Prosecutions rather than the High Court.
11. As a matter of construction I find it impossible to conclude that failure to obtain the necessary consent should have a different consequence depending on whether the proceedings are civil or criminal. The consequence must be the same in both cases. Either the proceedings are a complete nullity or the situation is remediable.
12. The predecessor to s.139 of the 1983 Act was s.141 of the Mental Health Act 1959 ("the 1959 Act"). Subsection (1) was for practical purposes in identical terms to s.139(1). But subsection (2) was different. It read:

"(ii) No civil or criminal proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care."

The two material differences between the subsections are in the later Act (i) absence of the additional bad faith/negligence filter and (ii) consent of the Director of Public Prosecutions rather than the High Court for criminal proceedings. The additional bad faith/negligence filter was in fact removed by s.60(2) of the Mental Health (Amendment) Act 1982.

13. It is to be noted that in s.141(2) of the 1959 Act the opening words are, "No civil or criminal proceedings shall be brought…….". This was because at the time civil and criminal proceedings were treated identically in that the necessary consent was required from the High Court in each case. The only reason it was necessary to put civil and criminal proceedings in separate clauses in the later legislation was because of the introduction of the Director of Public Prosecutions as the person from whom consent had to be obtained to bring criminal proceedings. The structure of subsection (2) of s.141 of the 1959 Act and following it, s.139(2) of the 1983 Act emphasises in my view the intention of the legislature that the consequence of failure to obtain the necessary consent should be identical for both criminal and civil proceedings.
14. There are numerous offences that require the consent of the Attorney General or the Director of Public Prosecutions as a condition precedent to the institution of criminal proceedings. The Law Commission Report No 255, Consents to Prosecution sets them out as at 14 July 1998 in Appendix A. Neither counsel was able to draw our attention to any instance where the consequence of commencing criminal proceedings without the necessary consent was other than to render those proceedings a nullity see e.g. R v Angel [1968] 1 WLR 669 where the failure to obtain the consent of the Director of Public Prosecutions to a prosecution under s8 of the Sexual Offences Act 1967 rendered the whole of the trial, including the committal proceedings, a complete nullity.
15. It is, in my judgment, impossible to envisage criminal proceedings to which s.139(2) applies that are commenced other than by the Director of Public Prosecutions or with his consent being treated by the court other than as a nullity. Looking at the wording of the subsection and bearing in mind how it developed from s.141(2) of the 1959 Act I can see no reason to treat civil proceedings commenced without consent any differently.
16. There is one other factor looking at the historical development of the mental health legislation that gives a pointer to the meaning of s.139(2) of the 1983 Act. S.139(2) and before it s.141(2) of the 1959 Act can be traced back in origin to s.12 of the Lunacy Acts Amendment Act 1889. S.12(2) of that Act provided that:

"If any proceedings are taken against any person for… doing anything in pursuance of this Act, such proceedings may, upon summary application to the High Court of Justice or a judge thereof, be stayed………if the court or judge is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care."

There lay the origins of the filter. But there was no prohibition against the start of proceedings albeit the court had jurisdiction to stay the proceedings on application to it if the criteria laid down were met. The legislature in the 1959 Act moved away from staying proceedings that should not have been brought to requiring permission to bring them in the first place.

17. Approaching matters therefore on the basis of looking at the natural meaning of the words in the section in the light of the history of the mental health legislation one is driven unerringly to the conclusion of the judge. However, there are other considerations. What is the underlying purpose of this provision and what authority is there as to the meaning of this and comparable legislative provisions?

The purpose of the section

18. In Winch v Jones [1986] QB 296 the question for the Court of Appeal was what criteria should be applied when considering an application for leave to bring proceedings under s.139 of the 1983 Act. Sir John Donaldson MR said at 305:

"…..s.139 protects the defendant unless and until the applicant obtains leave. This in itself is an added protection of considerable value [over and above the ordinary strike out provisions]. 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 the process, and the equally legitimate interests 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 [Mental Health] Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the 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."

19. There seem to me to be arguments both ways whether the purpose of this filter is better met if leave can only be sought before proceedings are commenced. On the one hand the subsection puts the onus of obtaining leave on the prospective claimant; and if latitude is allowed it needs little imagination to see mental patients starting proceedings first, with all the potential aggravation and distress this can cause to a defendant, and then seeking leave when pressed by the defendant. On the other hand Mr Seal, having failed to obtain legal aid, commenced proceedings at the very end of the limitation period. If his proceedings are a nullity he has no hope of proceeding with his claim even should the merits be such as to suggest he ought to be able to do so. Further, the point was made in argument that it is quite possible for a claim to be brought without leave where a claimant has no reason to suppose the defendant will assert that the claim arises out of an act purported to have been done under the mental health legislation. It was submitted it would be absurd if the proceedings have then to be treated as a nullity because consent was not obtained before they were begun.

Authority

20. I turn next to authority. In the first place, it has never been authoritively decided whether s.139(2) is mandatory or merely directory. In Pountney v Griffiths [1976] AC 314 it appears to have been conceded without argument both in the Divisional Court and the House of Lords that the subsection was mandatory and the concession was accepted without debate by both the Divisional Court and the House of Lords.
21. In that case the applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to "come on" and allegedly punched him on the shoulder. The patient brought criminal proceedings for assault without first obtaining the leave of the High Court under s.141(2) of the 1959 Act – the predecessor of course to s.139(2) of the 1983 Act. The applicant was convicted and applied for certiorari to quash the conviction on the ground that since the leave of the High Court had not been obtained the proceedings were a nullity. The Divisional Court quashed the conviction and the House of Lords dismissed the appeal from the Divisional Court. The issue in the House of Lords and in the Divisional Court was the ambit of s.141 and whether it covered acts done by staff at mental hospitals in the course of their day to day control of patients. In the Divisional Court Lord Widgery CJ said at 318B:

"Although no point was taken under this section in the course of the hearing in the court below, it is now contended on behalf of the applicant that the proceedings brought against him were criminal proceedings in respect of an act purporting to be done in pursuance of the Mental Health Act 1959. It is common ground that the consent of the High Court was not obtained to the institution of the proceedings, and it is further common ground that if such permission was necessary in the circumstances of this case the proceedings below were a nullity and the order can be quashed. The sole question therefore is whether these proceedings came within the ambit of s.141(1) so as to make the leave of the High Court necessary."

The certified question on appeal to the House of Lords was:

"Whether an alleged criminal assault by a nurse on duty and in the course of exercising functions of controlling a patient in a mental hospital, established under the National Health Service Reorganisation Act 1973, may be an act purporting to be done in pursuance of the Mental Health Act 1959 so as to attract the provisions of s.141 of that Act."

Thus the effect of non compliance with s.141(2) was never in issue.

22. The main speech in the House of Lords, with which the other members agreed, was given by Lord Edmund-Davies. He accepted the view of Lord Widgery CJ who had given the judgment of the Divisional Court that:

"…..where a male nurse is on duty and exercising his functions of controlling the patients in the hospital, acts done in pursuance of such control, or purportedly in pursuance of such control, are acts within the scope of s.141, and are thus protected by the section."

He said at 336 C:

"That, in my respectful judgment, was the correct view to take of the case, and it follows that, since the leave of the High Court was not obtained, the proceedings before the magistrates were a nullity and the Divisional Court had no alternative but to quash the conviction."

23. Lord Simon of Glaisdale observed at 329C that s.141 of the 1959 Act placed a hindrance on the recourse of a class of citizens to the courts and drew a comparison with the requirement for a vexations litigant to obtain the permission of the court before commencing proceedings.
24. It is very clear that what was an issue in Pountney v Griffiths was the ambit of s.141 rather then the effect of failure to comply with s.141(2). The House of Lords never gave any consideration to whether or not proceedings brought without leave were a nullity. They simply proceeded on the basis of the concession of counsel. Mr Brodie, who has appeared before us for the appellant, submits that we are not bound by Pountney v Griffiths. The ratio of the decision was the answer to the certified question and not that failure to obtain the prior consent of the High Court rendered the proceedings a nullity. Strictly speaking that is correct, but the combined opinion of their lordships and Lord Widgery CJ, based as it was on a concession by experienced counsel, carries in my judgment very great weight. True, Pountney v Griffiths was a criminal case but at the time it was decided the section dealt identically with civil and criminal proceedings. In my judgment Pountney v Griffiths is a very strong pointer in the direction that failure to obtain the prior consent of the High Court in the present case is a defect incapable of subsequent remedy.

Other authorities

25. The cornerstone of Mr Brodie's argument is that there is another line of authority that was never referred to in Pountney v Griffiths. This can be traced back to Rendall v Blair (1890) 45 Ch D 139 and indeed even earlier. The principle, he submits, is that where a statute requires leave to commence proceedings to be granted failure to obtain such consent does not automatically render the proceedings a nullity. As Bowen LJ put it at 158:

"It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last."

26. Rendall v Blair was discussed and followed by Lindsay J In re Saunders (A Bankrupt) [1997] Ch 60 who thought it was a firm indication that very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity.
27. In my judgment a great deal turns on the wording and purpose of the particular statute under consideration. I turn therefore to look a little more closely at Rendall v Blair and In re Saunders. In Rendall v Blair the master of a charity school asked the court for an injunction to restrain the managers of the school from dismissing him. They had sought to do so under the discretionary power conferred on them by s.17 of the Charitable Trusts Act 1853. There was an issue whether the managers had been properly appointed. The plaintiff had not obtained the leave of the charity commissioners under s.17 to bring the action. It was held that, even if consent was necessary, it would not be right to dismiss the action without giving the plaintiff the opportunity of ascertaining whether the commissioners would give their consent.

S.17 provided:

"Before any suit…..or other proceeding…….for obtaining any relief….relating to any charity……shall be commenced……by any person….there shall be transmitted by such person to the board notice in writing of such proposed suit….or proceeding…..and the….board…..may, by an order or certificate….authorise……any suit……or other proceeding to be commenced…; and (save as herein otherwise provided) no suit….or other proceeding…..shall be entertained by the court…..except…..in conformity with an order or certificate of the….board."

28. The Court of Appeal held by a majority that the action did not require the consent of the charity commissioners but, unanimously, that if it did the action should not be dismissed without giving the plaintiff an opportunity of seeing whether the commissioners would give their consent.
29. Cotton LJ, who dissented on the ground that determined the appeal, pointed out that the section did not say that the action must be dismissed if consent was not obtained. Bowen LJ, with whom Fry LJ agreed, decided the appeal on the basis that s.17 did not cover actions brought to enforce common law rights or to obtain equitable relief in respect of common law rights. However, he agreed with Cotton LJ on the effect of the section if it did. He said:

"Now, first of all I come to that conclusion upon the language of the section. We are all of us familiar with the way in which Acts of Parliament are drafted to prevent actions being brought at all or writs being issued unless some condition precedent has been fulfilled. The language of such sections we are all familiar with, and the draftsman or the Legislature requires no obscure language if they desire to enact such laws. But this section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all. On the contrary, both from the way in which it is framed, from the omission of the usual words, and also from the presence of words which seem to me to indicate that the absence of the consent of the Commissioners is only a bar to the courts dealing with the action, and not a bar to the original institution of the suit – on all those three grounds I come to the conclusion that this section enables the court, in such cases as I have indicated, to allow the action, to stand over in order that the blot which has occurred may be cured if possible. In the first place, the section only begins with the enactment, "Before any suit shall be commenced there shall be transmitted notice in writing to the board"; but it abstains altogether from saying that the action is to be dismissed if no such notice is transmitted. On the contrary, it only indicates that, "Save as hereinbefore provided, no suit, petition, or other proceeding shall be entertained or proceeded with by the Court;" that is to say, the enactment is directory."

30. It is apparent that the opening words of s.139(2) of the 1983 Act "No civil proceedings shall be brought….." are somewhat stronger than the opening words of s.17 of the Charitable Trusts Act 1883, "Before any suit……shall be commenced….."

In re Saunders concerned s.130(2) of the Insolvency Act 1986 which provides:

"When a winding up order has been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company or its property, except by leave of the court and subject to such terms as the court may impose."

Lindsay J said Rendall v Blair gave a firm indication that a court can expect very emphatic language in a statute, before an action is to be treated, for want of leave, as a nullity, perhaps even extending to a provision that for want of leave an action is without more to be dismissed. He pointed to the difference between the wording of s.128(1) and s.130(2) of the Insolvency Act 1986. The former made void proceedings by way of levying execution against a company being wound up by the court. The latter required the leave of the court for the proceedings there described.

31. Lindsay J concluded that leave could in appropriate circumstances be granted subsequently notwithstanding the proceedings had been commenced without leave. He reached this conclusion on the basis that the words used in s.130(2) of the Insolvency Act 1986 were, in their historical context, capable of bearing more than one meaning and that he should give effect to the meaning which best gave effect to the statutory purpose rather than frustrating it. Using the expression of Bowen LJ in Rendall v Blair the wording of s.130(2) was directory rather then mandatory.
32. It was argued on behalf of the appellant before us that the modern approach in civil proceedings is to treat requirements of the kind with which this case is concerned as directory rather than mandatory where it is possible to do so. In R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354 the Court of Appeal held that in determining the consequence of non compliance with a procedural requirement the court had to consider the language of the legislation and the legislator's intention against the factual situation and seek to do what was just in all the circumstances. Lord Woolf MR, as he then was, said at 359:

"Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between."

33. In R v Sekhon and Others [2003] 1 WLR 1655, 1664 Lord Woolf CJ, giving the judgment of the court pointed out that the purpose of rules of procedure is not usually to give or take away the court's jurisdiction. He said at 1665:

"25 There is no doubt that difficulties for courts exist in applying the distinction between mandatory requirements, on the one hand, and directory requirements on the other. Even if the terms "directory" and "mandatory" are not used the problem remains of answering the question "what is the effect of non-compliance with procedural requirements?" What is necessary, as indicated by Lord Campbell LC in Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379, 381, is "to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed"."

34. There is no doubt that the courts in the present day will strive anxiously to interpret procedural provisions flexibly where this furthers the interests of justice. On the other hand, where Parliament has made it absolutely clear what the consequences are of the failure to take a particular step, it is not for the courts to import a discretion or flexibility that is not there. In my view the wording of s.139(2) is very clear.

Conclusion

35. Each time the court is called upon to consider the effect of failure to comply with a provision such as that in s.139(2) of the 1983 Act the all important consideration is the particular provision under consideration. In my judgment failure to obtain the necessary consent before the proceedings are begun renders the proceedings a nullity. I have been driven to this conclusion primarily by the structure of the section and the fact that it applies to both civil and criminal proceedings. In my view Judge Graham Jones was correct and I would dismiss the appeal.

Mr Justice Ouseley:

36. I agree. The task of statutory construction here is to decide what Parliament intended to be the consequences of a failure to comply with the requirement which it had laid down in s.139 of the 1983 Act in strong language, in respect of both civil and criminal proceedings. The consequences of a failure to comply with such a requirement will vary from statute to statute, depending on its wording and specific purpose.
37. Here, the common purpose of both the civil and criminal proceedings bar is to protect those whose duties require them to deal with mental patients from the harassment and distress which such people can cause, intentionally or otherwise, through civil or criminal proceedings, unless those proceedings have first passed through a merits test assessed by the High Court or the DPP as the case may be; Winch v Jones [1986] QB 296, at 305.
38. If the prohibition operated simply as the basis for the defendant to seek a stay once proceedings were commenced, it would reverse the onus which Parliament has provided for. The anxiety , stress and costs created by such proceedings, often to individual members of staff sued in person, and which Parliament's purpose was to avoid, would have been caused before the litigation had passed through the merits test. It would be the application by the defendant for the stay which would become the point at which the possible merits of the claim were tested. It would place the onus on the defendant not the claimant to take the step, were he aware that he could. This would undermine the clear purpose of the provisions.
39. The 1983 Act was passed in full knowledge of the decision in Pountney v Griffiths [1976] AC 314, and although the actual decision assumed on a concession that the result of a failure to comply with the requirement led to the prosecution being a nullity, it was a necessary assumption for the issue which it did deal with to arise. I regard that as a very strong pointer to the intended consequences in view of the conjunction of language between civil and criminal proceedings maintained in the 1983 Act.
40. In this case the practical problem only arises because the Claimant left the commencement of his action to the last possible moment. The Claimant, who discovers that the defence requires, or if made out may require, the proceedings to be recommenced, only faces a real practical problem if the limitation period has expired and no extension is available.
41. There are good reasons why in general procedural failures should not lead to proceedings being a nullity. But that does depend on the purpose and importance of the provision in its statutory context. The line of insolvency cases discussed in In Re Saunders [1997] Ch 60 produces a different result from that which I have outlined. Part of the concern in them was the very real difficulty in ascertaining whether the potential defendant was the subject of a bankruptcy order before proceedings were commenced. The relevant statutory provisions were not significantly changed in succeeding statutes notwithstanding the way in which they had been interpreted by the courts.  That same point cuts the other way here, and the practical reasons for the construction of the 1986 Insolvency Act  in Saunders are distinctly more compelling than those in favour of the Claimant's interpretation here of the 1983 Act. I did not find them sufficiently strong to outweigh the factors pointing to the conclusions which Scott Baker LJ has set out.

Lord Justice Clarke:

42. I agree with both judgments.