Seal (FC) (Appellant) v. Chief Constable of South Wales Police (Respondent)

Section 139(2) of the Mental Health Act 1983 makes prior leave of the High Court a condition of valid civil proceedings concerning acts purporting to be done under that Act. Proceedings begun without leave are a nullity. The defect cannot be cured retrospectively and the proceedings do not stop limitation running.

The consequence of breaching a statutory procedural requirement depends on whether Parliament intended to confer substantial protection which invalidates non-compliant proceedings. The language, purpose, legislative history and settled understanding of the provision must be considered.

This restriction is compatible with the right of access to a court under article 6. It pursues a legitimate protective aim, and an applicant with an arguable case can obtain leave.

The police arrested the appellant for an alleged breach of the peace and subsequently removed him to a place of safety under section 136(1) of the Mental Health Act 1983. He was detained for just over a week. Nearly six years later, acting in person, he issued county court proceedings alleging that his detention had been unjustified. He did not first obtain leave from the High Court under section 139(2).

The district judge struck out the claims concerning acts within section 139. A county court judge upheld that decision but restored claims relating to acts outside the section. The Court of Appeal upheld the ruling on section 139(2): [2005] EWCA Civ 586; [2005] 1 WLR 3183.

The issue was whether proceedings begun without the required leave were a nullity or merely procedurally irregular and capable of being validated by a later grant of leave.

1. Disposition. Lord Bingham delivered the leading majority reasoning. Lord Carswell agreed with him, and Lord Brown agreed and added reasons. The House dismissed the appeal by a majority of three to two.

2. Effect of section 139(2). Per Lord Bingham and Lord Brown, the court must determine whether Parliament intended a precondition to confer substantial protection which invalidates non-compliant proceedings, or merely to create a procedural requirement whose breach leaves the proceedings effective. The language is the starting point, but statutory purpose, legislative history and the settled understanding of the provision are also material.

3. The words of section 139(2) of the Mental Health Act 1983 are an emphatic prohibition on bringing proceedings without leave. The legislative history showed that Parliament strengthened the former protection in 1930 by requiring leave before proceedings could be brought. The requirement was intended to spare prospective defendants from involvement in litigation unless a High Court judge first sanctioned it.

4. The understanding that proceedings instituted without leave were null was reflected in R v Bracknell JJ, Ex p Griffiths [1976] AC 314 and analogous consent cases. Although the point in Ex p Griffiths had been conceded, it was relevant to the result and had been accepted by eminent counsel and judges. Parliament subsequently legislated against a clear professional and judicial consensus that absence of the required leave made proceedings a nullity.

5. Per Lord Bingham, the fundamental principle that access to the courts is excluded only by clear words remained fully applicable. The language, history and protective purpose of section 139(2) supplied the necessary clarity. A county court claim for damages could not be treated as an application for leave in the High Court.

6. Article 6. Per Lord Bingham and Lord Brown, the restriction did not infringe the right of access to a court. Protecting those responsible for the care of mental patients from harassment by litigation was legitimate. The threshold for leave was unexacting because an arguable case would be permitted to proceed. The appellant lost his opportunity because limitation had expired, rather than because an attainable leave requirement denied the essence of access.

7. Dissent. Lord Woolf and Baroness Hale would have allowed the appeal. They considered that Parliament had not expressly prescribed nullity. In their view, the proceedings should be stayed until leave was obtained, with power to grant leave retrospectively where justice required. Baroness Hale also considered automatic nullity an irrational and disproportionate restriction on access to justice.

1. House of Lords: Dismissed the appeal by a 3–2 majority and left the Court of Appeal's order undisturbed.
2. Court of Appeal: Upheld the rulings that proceedings within section 139(2) were null where prior leave had not been obtained: [2005] EWCA Civ 586; [2005] 1 WLR 3183.
3. County Court: District Judge Singh struck out the claims concerning acts within section 139. His Honour Judge Graham Jones upheld that decision but restored claims concerning acts outside the section.