L v London Borough of Hammersmith & Fulham & Ors

Section 139 of the Mental Health Act 1983 protects acts purportedly done under the Act, whether or not the act is expressly required by the Act and whether or not the claimant was detained under it. Civil proceedings concerning such acts require the High Court’s leave. The leave question asks whether, on the material immediately available, the complaint deserves fuller investigation, balancing access to justice against protection from baseless claims. Where communications between health or social care professionals attract qualified privilege, the claimant must show malice. Bare allegations that statements were false, careless or not withdrawn do not establish a reasonable prospect of proving malice. A civil restraint order requires persistent proceedings or applications that are totally without merit; several claims issued together after one discontinued claim did not satisfy that threshold.

The claimant, acting in person, brought six related claims against the first and second defendants and individual health or social care professionals. The claims principally alleged defamation arising from statements in clinical records and communications concerning his mental health. He also alleged tortious conspiracy and breaches of articles 3 and 6 of the European Convention on Human Rights.

The defendants applied to strike out the claims or obtain summary judgment, relying on the absence of any reasonable prospect of success and on the leave requirement in section 139(2) of the Mental Health Act 1983. They also sought an extended civil restraint order. The central issues were whether section 139 applied, whether the claims had a reasonable prospect of success, and whether the claimant’s conduct was persistent enough to justify restraint.

1. Applications to strike out and leave. The court held that section 139 applied to the complained-of acts. Following Pountney v Griffiths [1976] AC 314, subsection (1) extends to any act carried out in purported pursuance of the Act, including acts not limited to functions specifically expressed in the Act. The claimant’s argument that the provision applied only to persons detained under the Act was rejected.
2. Section 139(2) test. Applying Winch v Jones [1986] 1QB 296, the relevant question was whether, on the material immediately available to the court, the complaints deserved fuller investigation. The test was not whether a prima facie case or serious issue for trial had been established. It required a balance between access to the courts for non-frivolous claims and protection from harassment by baseless claims.
3. Defamation and qualified privilege. The publications occurred in the performance of statutory and clinical functions by health and social care professionals. They therefore attracted qualified privilege. The claimant accepted that he had to establish malice. His allegations that the statements were false, made cavalierly, not withdrawn or not apologised for, together with a bare allegation of conspiracy, did not give the claims a reasonable prospect of proving malice. The alleged human rights violations were also unsustainable.
4. The claims had no reasonable prospect of success and would be struck out under CPR 24. Independently, the complaints did not merit fuller investigation under section 139(2); proceedings instituted without the required leave were a nullity. All six claims were struck out.
5. Civil restraint order. Although the claims could properly be described as totally without merit, the claimant’s conduct was not persistent. There had been one earlier claim, discontinued in the same month as the six current claims were issued. The application for an extended civil restraint order was dismissed. The claimant’s applications were also dismissed as unnecessary.