Statute barred

The House of Lords handed down its judgment on 4 July 2007 on an interlocutory point regarding the procedural requirements enshrined in s139(2) of the Mental Health Act 1983 (the Act) (Seal v Chief Constable of South Wales Police [2007] UKHL 31).

The case required the Law Lords to consider whether non-compliance with a mandatory statutory provision rendered proceedings a nullity and, if so, whether this gave rise to a contravention of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights. The claimant had been arrested by police officers for breach of the peace and removed to a place of safety under s136 of the Act. Then without legal advice, just before the end of the limitation period, he issued proceedings seeking damages. The suit included a claim related to his allegation that police officers had misused their powers under s136 of the Act. That part of his claim was struck out by the court as s139 of the Act states:

• 'No person shall be liable. . . to any civil or criminal proceedings . . . in respect of any act purporting to be done in pursuance of this Act.'
• No civil proceedings shall be brought against any person 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.'

As Lord Bingham commented: 'the House has been referred to no enactment in which clearer or more emphatic language is used than in s 139(2).'

While the section was emphatic in its terminology it did not identify the sanction for failure to obtain leave.

Counsel for the chief constable contended that consequently, the proceedings were a nullity and that this error could not be remedied. Mr Seal contended that the lack of leave was an irregularity of process which should not be fatal to his case.

The Court of Appeal had taken the view that it could be inferred that the intention of Parliament was clearly to render any proceedings issued in breach of s139 of the Act a nullity.

Limitation period expired

The issue confronting the House of Lords was that the limitation period had expired and, if the Court of Appeal's decision was upheld, the statutory provision left Mr Seal unable to remedy his procedural error and pursue that aspect of his claim in the courts.

In dealing with the issue of statutory interpretation the House of Lords was divided. Lord Bingham, Lord Carswell and Lord Brown agreed that a meaningful interpretation of the statute must result in the proceedings being a nullity. Lord Woolf and Baroness Hale strongly dissented and argued that such a sanction would be a breach of the claimant's Article 6 rights by restricting his access to the courts.

Lord Woolf outlined his vision of the approach that should be adopted by the courts in determining what Parliament intends when legislation is in peremptory terms. He stated that the Act did not expressly state that the proceedings would be a nullity and took the view that the exercise of seeking to ascertain the sanction that Parliament 'inferred' by the section might cause 'grave injustice'. By contrast he suggested that providing the court with the discretion to deal with each case on the merits of the pleaded case at the time when the point was taken would permit the courts to determine which cases should proceed and which should be struck out.

In suggesting this methodology he referred to his own comments in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354 where he had indicated that, in the majority of cases, 'the court would have the task of determining what would be the just decision to take in all the circumstances'.

Lord Woolf was concerned that the interpretation preferred by the majority imposed a procedural restriction on access to the courts and considered the jurisprudence regarding this point.

He referred to the words of Viscount Simmonds in Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1at p286: '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.'

Lord Woolf then referred to the judgment of Lord Edmund Davies in R v Bracknell JJ, ex p Griffiths [1976] AC 314 who cited the passage above and also referred to Bradford Corp v Myers [1916] 1 AC 242 and Magor and St Mellons RDC v Newport Corp [1952] AC 189. Lord Edmund Davies was cited as stating that it was for the 'courts [to] construe very narrowly any substantive or procedural barriers against having recourse to courts for the rectifying of wrongs'. Lord Woolf also quoted Lord Hailsham in London & Clydeside Estates Ltd v Aberdeen District Council [1979] 3 All ER 876 where, in an administrative law context, the judgment provided, in the words of Lord Woolf 'much needed illumination on the consequences of non compliance with a statutory provision'.

Misleading in effect

In that case Lord Hailsham had stated: 'In such cases, though language like 'mandatory', 'directory', 'void', 'voidable', 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition.'

Lord Woolf therefore favoured a position enabling the court to exercise its inherent discretion rather than being bound by any restrictive terminology.

'As a matter of fundamental principle, the appellant's access to the courts cannot be denied without a judge determining whether this is the appropriate consequence in all the circumstances,' he concluded.

Baroness Hale stated that the issue concerned 'a fundamental constitutional right - the right of access to the courts'. She commented that: 'Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant.'

Baroness Hale referred to the similar restriction that exists under s2 of the Limitation Act 1980 which provides that '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.'

However, she noted that proceedings issued after that period were not a nullity, but were perfectly valid until a defendant chose to take the point.

She was concerned that the effect of the decision of the majority was that proceedings might be issued and prosecuted to an advanced stage until it was noted that no leave had been obtained. The court would then be obliged to regard the whole proceedings as a nullity.

Baroness Hale accepted that restricting access to the courts could be a legitimate aim, as in the case of vexatious litigants, but argued that the restriction also had to be proportionate. In her opinion it was not: 'rational to brand every person who is or has been subject to the compulsory powers of the Mental Health Act as a potential vexatious litigant [. . .] police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under s136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest [...] defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims'.

Baroness Hale contended that the effect of rendering the proceedings a complete nullity even if the claimant had a good claim was to create 'an effect out of all proportion to the aim which it is attempting to pursue.'

Protection and certainty

Lord Bingham saw the duty of the courts in much more delineated terms: 'The important question is whether . . . parliament intended to confer a substantial protection on the putative defendant such as to invalidate proceedings brought without meeting the condition.'

Commenting on academic consideration of the section, he pointed out that it was recognised that there had been much criticism of the requirement for leave but also commented that: 'it was well known that staff working with mental patients were anxious about their legal position and the protection available to them.'

He did not find the terms of the section to be unduly restrictive and noted that many other jurisdictions had similar restrictive provisions in their legislation. Lord Carswell concurred with the judgment of Lord Bingham.

In his more strident speech, Lord Brown indicated that he thought it 'quite evident' that 'from 1930 onwards parliament intended to make leave a precondition of any effective proceedings' and that he thought that any suggestion that the section involved a violation of Article 6 was 'fanciful'. He recognised the inflexibility of the proceedings being rendered a nullity but commented that this was 'the price paid for certainty' in the law.

Preserving rights

It was commented by their Lordships in argument before the House that not all practitioners would be familiar with the draconian effect of this legislation. It was also noted that the government had given consideration to amending this section but had now withdrawn from that stance despite criticism of the requirement for leave by medical practitioners, academics and legal commentators.

The view of the majority of the House was that the section could be interpreted in a manner that achieves certainty. In contrast Lord Woolf can be expected at a future occasion to revisit his own developing comments as to the role of the courts in seeking to achieve justice by evaluating the consequence of procedural default.

In the meantime those dealing with persons detained under the mental health legislation can be assured that the protection that has been available to them for some time is preserved by this judgment and practitioners need to be alert that failure to obtain leave will be fatal to any proceedings under the Act.