Seal v Chief Constable of South Wales Police

This appeal concerned the construction and effect of section 139(2) of the Mental Health Act 1983, which provides that no civil proceedings shall be brought in respect of acts purporting to be done under the Act without the leave of the High Court. The majority concluded that Parliament intended leave to be a jurisdictional pre-condition and that proceedings brought without leave are a nullity. The majority relied on the statutory language, the legislative history (tracing the provision back to the Mental Treatment Act 1930 and earlier statutes), and a line of authority (including R v Bracknell JJ, Ex p Griffiths) treating lack of required leave or consent as fatal.

The minority held that the subsection did not clearly require that proceedings brought without leave be automatically void; instead a High Court judge should have the power to determine the consequence and, where appropriate, to grant retrospective leave or stay proceedings so as to avoid disproportionate interference with the claimant's right of access to the courts under article 6. The minority emphasised proportionality, the low threshold for granting leave in civil cases (Winch v Jones), and the importance of preserving access to justice.

Background and facts:

• On 9 December 1997 the police attended the appellant's mother’s home and arrested Mr Seal for an alleged breach of the peace. Following events in the street the police removed and detained him under powers in the Mental Health Act 1983 (initially under section 136(1) and (2), then section 2). He was released after just over a week.
• In August 2003 solicitors for Mr Seal complained and claimed damages. On 8 December 2003, on the eve of the six-year limitation period expiring, Mr Seal (acting in person) issued proceedings in the Merthyr Tydfil County Court and served particulars in April 2004.

Procedural history: The defendant relied on section 139(1) and (2). The Chief Constable applied to strike out for failure to obtain leave under section 139(2). District Judge Singh granted the application; His Honour Judge Graham Jones on first appeal largely upheld that decision but restored the parts of the claim not covered by section 139. The Court of Appeal ([2005] EWCA Civ 586) upheld the effect of section 139(2) as rendering proceedings without leave a nullity. The case then came to the House of Lords.

Nature of the claim and relief sought: The appellant sought damages for what he alleged was unjustified detention and related acts by the police under powers said to be exercised pursuant to the Mental Health Act 1983.

Issues framed:

• Whether civil proceedings brought without first obtaining the leave of the High Court under section 139(2) are a nullity (jurisdictional pre-condition) or whether failure to obtain leave is a procedural irregularity which the court can cure or in respect of which the court may exercise discretion (for example to stay or grant retrospective leave).
• Whether treating proceedings as a nullity would infringe the claimant's right of access to the courts under article 6 of the European Convention on Human Rights.

Court’s reasoning:

• The majority (Lord Bingham, Lord Carswell, Lord Brown) concluded that the language of section 139(2), its statutory history (from 1930 onwards) and established authority supported the view that leave was a precondition and proceedings without it were of no effect. They emphasised the protective purpose of the provision for staff caring for the mentally ill and the consistent understanding in earlier case law that lack of required leave or consent rendered proceedings void.
• The minority (Lord Woolf and Baroness Hale) would have allowed the appeal. They emphasised the fundamental importance of access to the courts, the principle of legality, proportionality and the modern approach to consequences of non-compliance (Lord Hailsham's spectrum in London & Clydeside Estates Ltd v Aberdeen District Council and the guidance in R v Secretary of State for the Home Department, Ex p Jeyeanthan). They favoured a remedial/discretionary approach permitting the High Court judge to determine whether the defect should be cured (including retrospective leave) so as to avoid disproportionate loss of rights (for example where a claimant issued proceedings in time but without awareness of the leave requirement and is then caught by limitation).

Disposition: By majority the appeal was dismissed and the earlier orders were upheld. The House therefore concluded that proceedings begun without the leave required by section 139(2) are nullities.

Appeal dismissed. The majority held that section 139(2) of the Mental Health Act 1983 requires leave of the High Court as a jurisdictional pre-condition to bringing civil proceedings in respect of acts purporting to be done under the Act, and that proceedings commenced without such leave are a nullity. The majority relied on the statutory wording, its legislative history and established authorities treating required leave or consent as jurisdictional. The minority would have allowed the appeal, concluding that section 139(2) did not clearly prescribe automatic nullity and that courts should have power to cure defects and protect access to justice.

Proceedings began in the Merthyr Tydfil County Court (claim form issued 8 December 2003). District Judge Singh struck out the claim for lack of leave. On first appeal His Honour Judge Graham Jones largely upheld the decision (restoring parts not within section 139). The Court of Appeal, [2005] EWCA Civ 586, [2005] 1 WLR 3183, upheld the view that proceedings without leave were a nullity. The case was then appealed to the House of Lords ([2007] UKHL 31).