England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
MR JUSTICE OWEN
Claim No: HQ07X02848

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/01/2009

Lord Justice Sedley :

1. This is the judgment of the court.
2. Shortly after midnight on 21 August 2004 the claimant was arrested in central London for disorderly behaviour. He was later charged with obstructing police officers in the execution of their duty, was convicted and was granted a 24-month conditional discharge.
3. In the course of his arrest he suffered injuries so severe that the force medical examiner concluded that he was unfit to be detained. He was taken to hospital where he was found to have suffered multiple fractures of the head of the right femur and of the acetabulum, the ball and socket of the hip joint. This is a class of injury associated with head-on car crashes or falls from a significant height. But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries.
4. A complaint was made to the Independent Police Complaints Authority, but by August 2007 it had still not been resolved. On the eve of the third anniversary of the incident a writ was issued on the claimant's behalf seeking damages for trespass to the person and negligence. At that point of time it was generally believed that the limitation period for such claims was six years, but in January 2008 the House of Lords' decision in R v Hoare [2008] UKHL 6; [2008] 1 AC 844 established that it was three. The claim was thus issued just in time; but it was met with an application to strike it out pursuant to s.329 of the Criminal Justice Act 2003.

Section 329

5. This section, albeit contained in a criminal justice statute, is captioned "Civil proceedings for trespass to the person brought by an offender". It provides:

329 Civil proceedings for trespass to the person brought by offender

(1) This section applies where–

(a) a person ("the claimant") claims that another person ("the defendant") did an act amounting to trespass to the claimant´s person, and

(b) the claimant has been convicted in the United Kingdom of an imprisonable offence committed on the same occasion as that on which the act is alleged to have been done.

(2) Civil proceedings relating to the claim may be brought only with the permission of the court.

(3) The court may give permission for the proceedings to be brought only if there is evidence that either–

(a) the condition in subsection (5) is not met, or

(b) in all the circumstances, the defendant´s act was grossly disproportionate.

(4) If the court gives permission and the proceedings are brought, it is a defence for the defendant to prove both–

(a) that the condition in subsection (5) is met, and

(b) that, in all the circumstances, his act was not grossly disproportionate.

(5) The condition referred to in subsection (3)(a) and (4)(a) is that the defendant did the act only because–

(a) he believed that the claimant–

(i) was about to commit an offence,

(ii) was in the course of committing an offence, or

(iii) had committed an offence immediately beforehand; and

(b) he believed that the act was necessary to–

(i) defend himself or another person,

(ii) protect or recover property,

(iii) prevent the commission or continuation of an offence, or

(iv) apprehend, or secure the conviction, of the claimant after he had committed an offence;

or was necessary to assist in achieving any of those things.

(6) Subsection (4) is without prejudice to any other defence.

(7) ……

(8) In this section–

(a) the reference to trespass to the person is a reference to–

(i) assault,

(ii) battery, or

(iii) false imprisonment;

(b) references to a defendant´s belief are to his honest belief, whether or not the belief was also reasonable;

(c) "court" means the High Court or a county court; and

(d) "imprisonable offence" means an offence which, in the case of a person aged 18 or over, is punishable by imprisonment.

6. One cannot fail to notice that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation – a sudden encounter with a crime - it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests.
7. The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force in January 2004 it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country - that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary - the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing. Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect.

The application to strike out the claim

8. The Commissioner's case was, and is, that the failure to secure permission in advance rendered the proceedings void. The claimant resisted his application to strike out the claim, contending that the requirement of permission was procedural and did not go to jurisdiction. Contingently on this argument succeeding he sought permission to proceed.
9. In a judgment delivered on 19 May 2008 Owen J held that the requirement of permission was directory, not mandatory. He accordingly went on to consider and to grant the claimant's cross-application for permission to bring the proceedings. He did so, first, because on the evidence before him a court could properly conclude that grossly disproportionate force had been used, and secondly because, for reasons which he set out, the balance of justice favoured the grant of permission. He ordered the Commissioner to pay the costs of the unsuccessful application to strike out, but made no order as to costs of the claimant's application for permission to proceed. The claimant had sought an order for claimant's costs in the case; the respondent simply for costs in the case.
10. The judge gave the Commissioner permission to appeal on the issue of jurisdiction alone. The Commissioner's application for permission to appeal against one element of Owen J's decision to grant permission to proceed (which of course arises only if the appeal on jurisdiction fails) has been adjourned by Richards LJ to this court, with the appeal to follow if permission is granted. If the Commissioner fails on these counts, the claimant seeks permission to cross-appeal on costs, contending that the proper order in relation to his own successful application for permission to proceed was claimant's costs in the case.

Is there evidence that the use of force was grossly disproportionate?

11. It is convenient to deal straight away with the Commissioner's adjourned application for permission to appeal. It assumes that the issue of proceedings without prior permission has not made them a nullity, and seeks on this footing to challenge Owen J's conclusion that there was evidence that the actions of the arresting officers were grossly disproportionate. If there was such evidence, Owen J's grant of permission is not challenged.  The point is simple and is shortly made: the orthopaedic surgeon was, in his own words, completely perplexed by the severity of the injury, which he described as appalling, and was unable to explain it either by restraint or by use of a baton. For this very reason, counsel for the Commissioner argues, there was no evidence that the police had used grossly disproportionate force.
12. There are in our view two good reasons why permission should not be granted to pursue this head of appeal. One is that the issue was one of judgment on the available evidence, and Owen J made no discernible error in arriving at it. The other is that it is frankly hard to see, given the few stark facts summarised earlier in this judgment, how anyone could say that there was no evidence that grossly disproportionate force had been used. The fact that the surgeon has not been able to deduce or postulate a particular mechanism of injury does not mean that there was none. It means that the claimant's case is that the single event between his being ambulant and his suffering a complex fracture of the hip joint was his arrest; that it is a rational inference that the one brought about the other; and that if that is so, it was more probably than not because grossly disproportionate force was used. There is no alternative explanation at present before the court. Such documentary evidence as there is includes an interesting assertion by one of the arresting officers that the claimant was able to walk to the police van. It may be that on full inquiry the injury will turn out to have been a pure accident; but that is not how the case stands at present.
13. We therefore refuse the Commissioner permission to appeal on this issue. We reserve, because in these circumstances we do not need to decide it, the question which Tim Owen QC raises on the claimant's behalf, whether the Human Rights Act 1998, s.3, requires "grossly disproportionate" to be read down in cases such as the present in order not to afford state officials an unjustified degree of protection.

Are these proceedings barred by the lack of prior permission?

14. We turn therefore to the single, and important, ground of appeal: was the want of prior permission to bring these proceedings fatal or curable?
15. What follows in this judgment needs to be read sequentially with the judgment of Owen J [2008] EWHC 1081 (QB), which sets out with clarity and cogency his reasons for concluding that the statutory requirement was procedural. We will take it as read and turn directly to the arguments advanced to this court for and against it.

The Mental Health Act 1983, s.139:  Seal's case

16. The principal argument of Edwards Faulks QC for the appellant Commissioner is based on the House of Lords' approach in Seal v Chief Constable of the South Wales Police [2007] UKHL 31; [2007] 1 WLR 1910 to s.139 of the Mental Health Act 1983. This 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."

17. The House of Lords by a majority held that s.139 placed a jurisdictional barrier in the way of all proceedings to which it applied, with the result that the claim before them was defeated by the want of prior permission to bring it. Importantly for the present argument, Lord Bingham in §7 set the courts' course in this way:

While, therefore, I incline to favour the Chief Constable's reading of section 139(2), I do not think the answer to a question such as this should ordinarily turn on a detailed consideration of the language used by Parliament in one provision as compared with that used in another. The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji [2005] UKHL 49, [2006] 1 AC 340, para 23. To answer this question a broader inquiry is called for.

18. Having traced the history of the privative provision in the mental health legislation from 1889 onwards, Lord Bingham concluded:

18. I would respectfully echo and endorse the principle enunciated by Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286, which implicitly underpinned the argument for Mr Seal:

"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is . . . a 'fundamental rule' from which I would not for my part sanction any departure."

But the words first introduced in section 16(2) of the 1930 Act ("No proceedings, civil or criminal, shall be brought . . .") appear to be clear in their effect and have always been thought to be so. They were introduced with the obvious object of giving mental health professionals greater protection than they had enjoyed before. They were re-enacted with knowledge of the effect the courts had given to them. To uphold the decision of the three courts which have already considered the issue in this case and decided it in accordance with a clear consensus of professional opinion is not to sanction a departure from what Viscount Simonds rightly considered to be a fundamental rule.

19. Lord Brown concluded his concurring judgment in this way:

76. In short, I agree with all that Lord Bingham says and, with one exception, all that was said in the able judgments of the Court of Appeal. I disagree only with that Court's suggestion that the statutory condition in question in Rendall v Blair (1890) 45 Ch D 139 was weaker than that in question here. But the statutory context of the condition there and, more importantly, its legislative history, were markedly different from that of section 139(2) and these differences provide ample grounds for reaching different conclusions as to their effect. Were that not so, indeed, I would hold that the view expressed by the Court of Appeal in Rendall v Blair (not, in fact, necessary for the decision in that case) was wrong.

20. Mr Faulks accordingly does not – because he recognises that he may not – seek to read across from s. 139 of the Mental Health Act 1983 to s.329 of the Criminal Justice Act 2003. He submits that what the House of Lords decided in relation to s.139 of the Mental Health Act 1983 applies not by analogy but by parity of reasoning to s.329. In literal terms, s.329 refers to proceedings being brought, not simply pursued or prosecuted. The purpose of the section is to protect people from being baselessly sued by criminals for doing no more than try to arrest them or stop them offending. Such offenders are not debarred from suing in a proper case, but as a matter of legislative and public policy they are debarred unless and until a suitably strong case is shown. Leaving it to defendants to get such proceedings struck out, Mr Faulks contends, brings about the very mischief the legislation is designed to avoid.

The Barras principle

21. This argument would be stronger if s.329 had been enacted after the decision in Seal and in terms identical to s.139. In such a situation there may be an inference that the drafter was relying on a known judicial interpretation of the phrase: see Barras v Aberdeen Steam Trawling Co Ltd [1933] AC 402. Although there is no reference in Seal to the Barras principle, the majority decision may be regarded as a variant of it; but it bears no relationship whatever to the genesis of s.329. Not only are the words of the two privative conditions materially different; s.329 has no history of the kind that s.139 had and which was crucial in persuading the majority of the House of its true meaning. In the case of s.329 the entire history of the law of arrest points the other way.
22. Moreover, so far as we know no other statute containing an arguably similar privative clause had been so construed. The courts have in the past construed s. 17 of the Charitable Trusts Act 1853 ("Before any suit … relating to a charity … shall be commenced…") and s.130(2) of the Insolvency Act 1986 ("no action or proceedings shall be proceeded with or commenced …") as permitting permission to be obtained after proceedings have been instituted: see respectively Rendall v Blair (1890) 45 ChD 139 and Re Saunders [1997] Ch. 60.   Likewise the provision in successive Limitation Acts that an action "shall not be brought" after a prescribed interval has never been interpreted as a jurisdictional bar: limitation does not bite at all if the point is not taken. All these decisions reflect Lord Simonds' maxim. Only s.139 of the Mental Health Act 1983 has been construed as creating a mandatory requirement of prior leave.

The scope of s.329

23. Counsel for the Commissioner have helpfully provided the court with a schedule of those cases known to them in which s.329 has been deployed as a bar to a claim against the police. Of these, one has been withdrawn, and all but one of the others have been stayed pending the present appeal.
24. The remaining case, Manning v Commissioner of Police for the Metropolis, which was heard by Judge Bailey sitting at Central London County Court, is interesting for a sidelight it sheds on the present case. The claimant had been arrested for drug dealing and for assaulting a police officer at the time of his arrest. He sued for trespass to his person in the form principally of a forcible intimate search conducted on arrival at the police station. S.329 was pleaded, though not as a prior bar to the action. The judge rejected the plea on three grounds, the first of which was that the search had not taken place at the same time as the arrest. The decision illustrates how little of the policy and purpose of the provision, as opposed to its adventitious effect, is actually directed to shielding the police from actions for assault.
25. One aspect of s.139 of the Mental Health Act 1983 which contributed to the majority decision in Seal 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 must be true of its civil limb. There is no such duality in s.329, and consequently no comparable need to avoid inconsistency.

The effect on limitation

26. One particular reason why the courts can be expected to lean against the construction the appellant contends for is the effect it will have on the statutory period of limitation. How long will it take to obtain the court's permission to bring proceedings? Not only may the contest at first instance be prolonged, possibly through no fault of the claimant; it may have to go to appeal. There is therefore no way of knowing whether an application for permission to bring proceedings, even if initiated well before the expiry of the limitation period and even if successful, will be completed in time. Although it did not prove determinative of his eventual view, Lord Brown recognised this problem at the start of his speech in Seal. It remains a serious issue in relation to other cases, the present one included, which turn on the scope and effect of a requirement to obtain permission to proceed.
27. It appears to be the case – we are not called on to decide whether  it is – that  if application is made for permission to bring proceedings after the expiry of the limitation period, the claimant may seek to rely on s.33 of the Limitation Act 1980 to secure a waiver of the time limit. It will equally be the case, however, that such a claimant is at risk of refusal. If we were to be wrong in our conclusion in the present case, so that the claimant was now obliged to issue an application for permission to issue fresh proceedings, Mr Faulks accepts that he could seek an enlargement of time under s.33, though he does not concede that it could not and would not be opposed.
28. It seems to us that to render void any claim covered by s.329 which is initiated without permission will create potentially unmanageable time difficulties for claimants with perfectly sound cases. The solution preferred by Owen J, by contrast, will permit the court to manage such problems in accordance with the overriding objective of the CPR. In the absence of unequivocal words indicating the former intent, this is another reason for deducing the latter.

The procedural consequences

29. Is it nevertheless part of the legislative purpose to protect intended defendants, albeit only in specified circumstances, from being brought to court at all to answer baseless claims? It is hard to see how. Part 23 of the Civil Procedure Rules, which governs preliminary applications such as Mr Faulks contends are made mandatory by s.329, provides:

Where to make an application

23.2 ...1) The general rule is that an application must be made to the court where the claim was started.

…..

(4) If an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court.

Notice of an application

23.4 (1) The general rule is that a copy of the application notice must be served on each respondent.

(2) An application may be made without serving a copy of the application notice if this is permitted by –

(a) a rule;

(b) a practice direction; or

(c) a court order.

(Rule 23.7 deals with service of a copy of the application notice).

Application to set aside or vary order made without notice

23.10 (1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside^(GL) or varied.

30. Thus it is a uniform principle that a preliminary application, like interlocutory applications and other proceedings, will be served and heard on notice. Save where the application is plainly well-founded (in which case a separate application will be pointless), it will be an unwise defendant who does not attend to oppose the grant of permission, at whatever stage it is sought. Yet if Mr Faulks is right, the defendant will be able as of right to strike out a claim for which prior permission could not possibly have been resisted had it been sought.
31. The one possible exception to the need for service may be a case in which a court officer, instead of routinely serving it, refers to a judge an application so manifestly untenable that the judge feels able to dispense with service under 23CPR4(2)(c) and to dismiss the application without notice to the intended defendant – though not, of course, without hearing the claimant. One doubts, however, whether a judge would want to take the risk of being persuaded at a without-notice hearing that he needed to adjourn so that the intended defendant could be heard, rather than simply let the application be served and answered in the normal way.
32. There are thus cogent procedural reasons for leaning against the appellant's construction. If it is right, an application for permission made before proceedings are issued will not, save in the rarest cases, spare the defendant the need to come to court; while an application  made after proceedings have been issued can be met by the issue of fresh proceedings accompanied, if time has now run out, by an application to enlarge the limitation period. In other words the appellant's construction will effect no appreciable saving of time or costs in ill-founded cases; while in well-founded cases it will increase them by demanding a superfluous prior application; and for claims which run out of time it will add a further layer of cost and complication without necessarily defeating them.

The argument by analogy

33. Unless the effect of Seal is to unravel the decisions in Rendall v Blair (1890) 45 ChD 139 (on charity actions) and Re Saunders [1997] Ch. 60 (on bankruptcy) – and nobody in that case or in this has suggested it – the question is not why s.329 should not be construed in the same sense as s.139 of the Mental Health Act 1983, but why it should be. Mr Owen makes the simple but powerful point that one could easily recast s.329(2) so as to put it beyond any doubt whatever were this the intention.
34. In addition, litigation by mental patients past or present, especially those acting in person, is a very particular problem. As Sir John Donaldson MR said in Winch v Jones [1986] 1QB 296, 302:

"To be more specific, there are two fundamental difficulties. First, mental patients are liable, through no fault of their own, to have a distorted recollection of facts which can, on occasion, become pure fantasy. Second, the diagnosis and treatment of mental illness is not an exact science and severely divergent views are sometimes possible without any lack of reasonable care on the part of the doctor."

 A need to invalidate such proceedings unless leave is first obtained is undoubtedly exceptional and may be unique. Certainly, as their Lordships were careful to stress in Seal, the imposition of a jurisdictional bar on access to the courts is a drastic measure, in contrast to a requirement that proceedings, once instituted, can be struck out if they do not pass muster, whether on specified statutory criteria or because they have no realistic chance of success.

Hansard

35. If we find s.329 ambiguous, Mr Faulks invites us to consider its parliamentary history, pursuant to Pepper v Hart [1993] AC 593. We are not convinced that the difficulty of deducing the intended effect of s.329 does more than demand resolution by the court, which is not the same thing as an ambiguity; but in case we are wrong about this we turn to the information placed before us. Mr Faulks relies on what was said by Baroness Scotland in moving by way of amendment what is now s.329; but Mr Owen draws our attention to what had happened before this.
36. Lord Hunt of the Wirral had sought to insert in the Bill a clause captioned "Excluding civil liability of victims of crime". As its title suggests, the clause was not directed to protecting the police from ill-founded lawsuits or to affording them a special defence. It was to respond to concerns about the Tony Martin case (Mr Martin had not long before been released from prison) by protecting private individuals from lawsuits arising out of their endeavours to confront or apprehend criminals. Lord Hunt, moving it, spoke of "public outrage about the fact that there appeared to be a situation in the legal system whereby a burglar could sue his or her victim and recover damages with the benefit of legal aid."  His clause would "wholly deprive anyone convicted of a crime of the right to sue or bring civil proceedings against their victim on the basis of the circumstances in which they committed the offence". The amendment was withdrawn when Lord Filkin undertook that the government would table its own amendment, directed to the same end but "clearer and more focused" and – perhaps relevantly – one "that does not have any damaging effects on the wider law".
37. It was this amendment which Baroness Scotland subsequently moved, now captioned "Civil proceedings for trespass to the person brought by an offender" (Hansard, HL, 11 November 2003, cols. 1306-1310). The aim, in her words, was to "genuinely strengthen the courts' powers to reject unmeritorious claims".
38. Baroness Scotland went on to say:

"…. My noble friend Lord Filkin indicated the Government's sympathy for the concerns raised by the Opposition in that area, but emphasised the importance of framing a clear and focused amendment that will genuinely strengthen court's powers to reject unmeritorious claims. This amendment achieves those aims."

The amendment applies where a claimant has been convicted of an imprisonable offence. If the claimant wishes to sue someone for damages for trespass to the person, including an assault or a battery, which was committed on the same occasion as the offence, he or she must first obtain the court's permission for the claim to proceed. The court may give permission only if the offender can show that certain conditions, relating to the defendant's perceptions and reasons for committing the act, which amounted to trespass to the claimant's person, are not met, or that in all the circumstances the defendant's act was grossly disproportionate. If the court gives permission, the defendant will not be liable at the trial if he or she can prove that the relevant conditions relating to his or her perceptions and reasons for acting are met, and that in all the circumstances the action was not grossly disproportionate.

As my noble friend Lord Filkin indicated, in drafting the amendment our thinking has been very much along the same lines as that of the Opposition in framing their earlier amendment. However, this amendment improves on that one in several ways – I hope that I can say that with a little modesty, because I did not draft it. It makes the procedure for the court to give preliminary consideration to the claim clearer by creating a formal permission stage. The need for permission will act as a filter to remove unmeritorious cases at an early stage without the defendant having to incur substantial costs.

39. The italicised passages (which are those the Commissioner especially relies on) do not in fact support his construction. Not only is the first such passage (which echoes the drafter's explanatory note) consistent with the view reached by Owen J; the second, with its reference to "preliminary consideration … at an early stage" and the saving of "substantial costs", appears actually to support it. Conspicuously, the minister did not take the opportunity, had this been the intent, to say that the clause was meant to create an absolute bar to any action for which prior permission had not been obtained. Nor did she mention actions against the police. Had she done so, one might have expected considerable constitutional concern about a new defence to assault allegedly committed in the course of an arrest which abandoned the standard of objective reasonableness which the law has historically set for police actions, in favour of a test of subjective belief in a need to commit a trespass to the person, barring only gross overreaction. There might also have been puzzlement why, if such a defence was justified, it was to be confined to the moment of arrest. But an informed observer would have concluded that the amendment was concerned with the protection of private individuals who attempt, albeit misguidedly, to intervene when they witness what appears to be a crime.

Conclusion on construction

40.  With or without resort to Hansard, in our judgment s.329 stipulates only that a claimant who sues someone for assaulting him in trying to prevent a crime or to apprehend him for committing it will have to show merits sufficient to defeat the special statutory defence if his action is to be allowed to proceed. It makes it legitimate to visit in costs an application which is made later than it should have been, but it does not either explicitly or implicitly involve the drastic step of nullifying proceedings, however sound, which have been initiated without first clearing this hurdle.
41. It follows, as it does in limitation cases, that a lawsuit within s.329, begun without permission, can properly proceed to trial if the permission point is not taken. Where the claim is plainly eligible for permission, this is an economical and practical course. If it were otherwise, the point could not only be unanswerably taken against the claimant at an advanced stage of the proceedings, and costs be resisted on the ground that the progress of the action without permission has been entirely unlawful, but the judge would be required to take the point at trial. Moreover, a perfectly sound claim issued late in the limitation period could be defeated, or at least placed at risk, by an opportunistic motion to strike it out, brought in the knowledge that by the time permission could now be obtained the claim will be out of time. In any such event a case which everyone knows is perfectly sound would collapse. This, of course, is the effect of the decision in Seal on actions within s.139 of the Mental Health Act 1983; but it illustrates why it took a compelling legislative history to drive the House, by a bare majority, to a conclusion against which principle required it to lean. There is no such background or evident purpose to s.329.
42. We hold accordingly, in agreement with Owen J, that the requirement of s.329 of the Criminal Justice Act 2003 that the court's permission must be obtained to bring proceedings in the circumstances specified by the section is procedural and directory. It will follow that if such proceedings are brought without permission the defect can, if appropriate, be cured on application to the court, which can reflect in costs its view of the conduct of the proceedings. It will be a sensible use of initial correspondence for defendants to draw attention, where it potentially applies, to s.329 and to indicate whether they propose to take any point on it.

A caveat

43. It was common ground that any bar imposed by s.139 would nullify not only a claim for trespass to the person but any other claim – here the claim in negligence - based on the same facts. It may have been forensically and tactically useful for the claimant, by accepting this, to enhance the draconic effect of the case he had to meet; and it will without doubt have been welcome to the police to establish, albeit by concession, that such multiple claims, while they will not necessarily stand together, will fall together. We are not satisfied that this is necessarily true. We note in this connection that in Seal, while the district judge had struck out the entire claim (it is not clear from the report what causes of action it contained), the circuit judge on appeal had reinstated "that part of the claim that did not relate [inter alia] to the police's purported exercise of power under s.136, i.e. removing [the claimant] to a place of safety", and that there had been no cross-appeal against this: see [2005] EWCA Civ 586, §5. The effect of the decisions of this court and of the House of Lords was thus to allow part of the claim to proceed.

The claimant's costs

44. Owen J, while ordering the Commissioner to pay the costs of his own application to strike out, declined to make any order for the costs of the claimant's application for permission to proceed. His reason was shortly stated:

"We have here a provision that the clamant should have complied with; he did not, and so had to come to court to rectify [it]. So the defendant should not have to bear costs."

45. Mr Owen seeks permission to cross-appeal against this order, and, if that is granted, an order for costs in his favour throughout. His ground is the ground advanced by Mr Westgate, then appearing for the claimant, to Owen J: the application had to be made by the claimant sooner or later, and whenever made it would have been unsuccessfully opposed. Owen J, in response, cited encouragement to comply and putting the defendant at risk as reasons for departing from what we accept would be the normal order, namely claimant's costs in the case.
46. It seems to us, with great respect, that these were not sufficient reasons for the departure. On the view which both Owen J and this court have taken of s.329, permission was needed, but not necessarily before proceedings were issued. There was of course a real risk of an adverse costs order if it was applied for belatedly, but this application, albeit made in response to an application to strike out the claim, was timeously made.
47. There was thus no good reason to depart from the usual order. We grant permission to appeal on this point and allow the appeal to the extent of substituting an order that the costs of the application for permission to proceed be the claimant's costs in the case.

Outcome

48. We therefore dismiss the defendant's appeal and allow the claimant's.