House of Lords
Published July 5, 2007
Seal v Chief Constable of South Wales Police
Before Lord Bingham of Cornhill, Lord Woolf, Baroness Hale of Richmond, Lord
Carswell and Lord Brown of Eaton-under-Heywood
Speeches July 4, 2007
A claim brought in respect of an act purporting to be done under the powers of
the Mental Health Act 1983 was a complete nullity if the claimant had failed
to obtain the leave of a High Court judge under section 139(2) of that Act
before issuing proceedings.
The House of Lords so held, Lord Woolf and Lady Hale dissenting, in dismissing
an appeal by the claimant, Robert Edward Seal from the dismissal by the
Court of Appeal (Lord Justice Clarke, Lord Justice Scott Baker and Mr
Justice Ouseley) ( The Times May 31, 2005; [2005] 1 WLR 3183) of his
appeal from Judge Graham Jones, at Swansea County Court on October 18, 2004,
varying an order made by District Judge Singh, at Merthyr Tydfil County
Court on July 5, 2005, striking out Mr Seal’s claims against the defendant,
the Chief Constable of South Wales.
Section 139 of the 1983 Act 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
... 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...”
Mr Robert McCracken, QC and Mr Adam Solomon for Mr Seal; Mr Jeremy Johnson and Ms
Lucinda Boon for the chief constable.
LORD BINGHAM said that on December 9, 1997 the claimant was arrested for
causing a breach of the peace and removed by the police to a place of safety
under section 136(1) of the 1983 Act where he was detained for over a week.
On December 8, 2003, on the eve of expiry of the six-year limitation period,
the claimant issued proceedings against the chief constable in Merthyr
Tydfil County Court. The chief constable applied to strike out the
particulars of claim and dismiss the action on the ground that the claimant
had not obtained leave as required by section 139(2) of the 1983 Act before
issuing proceedings.
To that application the district judge acceded. His decision was upheld on
appeal save that such part of the claim as complained of acts which did not
fall within section 139(1) were restored.
The important question was whether, in requiring a particular condition to be
satisfied before proceedings were 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.
To answer that question a broad inquiry was called for. The legislative
history might be taken to begin with the Lunacy Acts Amendment Act 1889.
Section 12(1) rendered any person acting in pursuance of the Act immune from
civil or criminal liability in any proceedings if such person has acted in
good faith and with reasonable care. That provision was consolidated in the
Lunacy Act 1890. Section 16 of the Mental Treatment Act 1930 preserved the
immunity but subsection (2) introduced the provision that no proceedings
might be brought without the leave of the High Court. Thus the obtaining of
leave appeared to be a precondition of bringing proceedings.
Section 141 of the Mental Health Act 1959 reproduced the effect of section 16,
subject to differences of wording. Section 141 was amended by section 60 of
the Mental Health (Amendment) Act 1982 and consolidated as section 139 of
the 1983 Act, which the House was now asked to construe.
The 1982 amendment and the 1983 consolidation were preceded by two official
reviews: A Review of the Mental Health Act 1959 published by the
Department of Health and Social Security in 1976 and Review of the Mental
Health Act 1959 (Cmnd 7320) in 1978. Both those reviews considered the
effect of section 141 in its pre1982 form, as did a MIND report written by
Dr Larry Gostin entitled “A Human Condition”.
From those documents a number of things were clear. It was well known that the
requirement of leave in section 141(2) had been criticised as unduly
restrictive, ill directed, because not directed to litigants who had shown
themselves to be vexatious, and unjustified by the very small number of
applications for leave made each year.
But it was also known that staff working with mental patients were anxious
about their legal position and the protection available to them. The effect
of the leading authority bearing on the meaning of section 141 was, as one
would expect, appreciated. That was the background against which Parliament
enacted the 1982 amendment and the 1983 consolidation.
The leading authority at that time was R v Bracknell Justices, Ex parte
Griffiths([1976] AC 314), a decision of the House on appeal from the Queen’s
Bench Divisional Court.
The proceedings arose from the conviction of a mental nurse for assaulting a
patient, and the issue was whether the act of the nurse had been pursuant to
the Act, so as to entitle the nurse to the protection of section 141. Leave
to bring criminal proceedings against the nurse had not been given.
In the Divisional Court, Mr Gordon Slynn, QC, for the nurse, contended that,
since leave, if needed, had not been obtained, the proceedings were a
nullity, a point expressly conceded by Mr Louis Blom-Cooper, QC, for the
prosecutor, not challenged by Mr Harry Woolf, appearing as an amicus, and
expressly accepted by Lord Widgery, Lord Chief Justice, giving the judgment
of the court.
In the House that concession was assumed to be correct, and in his leading
opinion with which all members of the committee agreed, Lord Edmund-Davies,
having found the nurse to have been acting in pursuance of the Act, held the
criminal proceedings to be a nullity and upheld the Divisional Court’s
quashing of the conviction.
Counsel for the claimant pointed out, quite correctly, that in Ex parte
Griffiths the question of leave first arose after a trial, culminating in a
conviction, had been held, and that the opinions of the Divisional Court and
the House were based on a point that was conceded and so was not the subject
of adversarial argument.
But those objections were of limited cogency. Had the claimant’s contention
been correct, the prosecutor could have resisted the quashing of the
conviction, even if the alleged assault had been held to be an act covered
by section 141. Thus the question of leave was by no means irrelevant. It
was also of significance that very eminent counsel and judges accepted it as
so clear as to be unworthy of argument that proceedings brought without the
required leave were a nullity.
While the restriction on access to the court in section 141 had been the
subject of criticism before 1982, the House had been referred to no judicial
opinion and no scholarly commentary suggesting that failure to obtain the
required leave was a procedural irregularity which might be cured rather
than a flaw which rendered the proceedings null.
When Parliament legislated in 1982 to 1983, there was, as it would seem, a
clear consensus of judicial, professional and academic opinion that lack of
the required consent rendered proceedings null, and Parliament had to be
taken to have legislated on that basis.
Counsel for the claimant made much of the injustice to a litigant such as the
claimant if he found that his proceedings were invalidated by failure to
comply with a statutory requirement of which he was ignorant at a time when
a statutory time bar effectively precluded him from retrieving his position
by complying with the requirement.
It had to be accepted that a strict rule might bear hardly on some litigants,
of whom the claimant might be one. But if the claimant had issued
proceedings before the very end of the six-year limitation period his
failure to obtain leave, while it might have caused him delay and vexation,
would not have debarred him from prosecuting his claim.
Thus the provision which effectively denied him the opportunity to proceed was
not section 139 of the 1983 Act but section 2 of the Limitation Act 1980.
Parliament must, in legislating as it did, have recognised the risk that hard
cases, such as the claimant’s, might occur, but have considered the
occasional occurrence of such a case to be a price worth paying for the
reassurance and protection given by section 139 of the 1983 Act to those
whose very important and often difficult task it was to care for the
mentally ill.
The effect of section 139(2) did not infringe the claimant’s right of access
to the court held by the European Court of Human Rights in Golder v United
Kingdom (Application No 4451/70) ((1975) 1 EHRR 524) to be implied in
article 6 of the European Convention on Human Rights.
The Human Rights Court had accepted that the right of access to the court was
not absolute, but might be subject to limitations: Ashingdane v United
Kingdom (Application No 8225/78) ((1985) 7 EHRR 528, paragraph 57).
What mattered was 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.
However, the threshold for obtaining leave under section 139(2) had been set
at a very unexacting level: Winch v Jones ([1986] QB 296). An applicant
with an arguable case would be granted leave.
The claimant'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 (Application Nos 22083/93 and 22095/93) ((1996) 23 EHRR
213).
Lord Brown delivered a concurring opinion. Lord Carswell agreed. Lord Woolf
and Lady Hale delivered dissenting opinions.
Solicitors: Fisher Meredith, Kennington; Dolmans, Cardiff.
