Adorian v Commissioner of Police of the Metropolis

The Court of Appeal held that section 329 of the Criminal Justice Act 2003, which requires the court's permission for civil proceedings for trespass to the person brought by an offender, is procedural and directory rather than jurisdictional. The defect of commencing proceedings without prior permission can be cured by an application to the court and dealt with by costs orders. The court distinguished the decision in Seal v Chief Constable (concerning s.139 of the Mental Health Act 1983) and considered the statutory language, legislative history and practical consequences, including the effect on limitation periods, in reaching this construction. The court also refused permission to appeal a factual finding that there was evidence that the use of force might have been grossly disproportionate, and adjusted the costs order in favour of the defendant on the claimant's application for permission to proceed.

Background and facts:

• The claimant was arrested on 21 August 2004, suffered severe fractures during the arrest and later sued for trespass to the person and negligence. The arrest led to a conviction for an imprisonable offence and a conditional discharge for the claimant.
• The claimant issued proceedings just before what was then understood to be the limitation period; later decisions showed the limitation period to be shorter, but the claim was issued in time.

Procedural posture:

• The Commissioner applied to strike out the claim under section 329 of the Criminal Justice Act 2003 on the ground that proceedings had been brought without the prior permission required by that section. Owen J (QBD) held the requirement to be directory and granted the claimant permission to proceed; the Commissioner appealed on the jurisdiction point.

Nature of relief sought:

• The claimant sought damages for trespass to the person and negligence and, contingently, permission to bring proceedings under s.329. The defendant sought strike-out for lack of prior permission and permission to appeal on the costs point.

Issues framed by the court:

(i) Whether there was evidence that the force used by arresting officers was grossly disproportionate; (ii) whether s.329 imposes a jurisdictional bar rendering proceedings brought without prior permission a nullity or whether the requirement is procedural and therefore curable; (iii) appropriate allocation of costs arising from the late application for permission to proceed.

Reasoning and decision:

• On the factual question of gross disproportion, the court refused permission to pursue that head of appeal because the trial judge's assessment of the evidence was one of judgment and there was presently no alternative explanation for the claimant's injuries; therefore there was evidence that grossly disproportionate force might have been used.
• On statutory construction, the court distinguished Seal (which concerned s.139 of the Mental Health Act 1983) and concluded that s.329 does not share the same legislative history or textual features that led to Seal's jurisdictional reading. The court analysed the language of s.329, the relevant parliamentary speeches and the practical consequences of treating the requirement as jurisdictional, particularly the serious adverse effects on limitation periods and case management.
• The court considered established authorities (for example Rendall v Blair and Re Saunders) that had construed similar provisions as permitting post-issue leave and relied on the practical operation of the Civil Procedure Rules and the overriding objective to manage such permission applications. As a result, the court held s.329 to be procedural and directory; failure to obtain prior permission does not render proceedings void but permits curing and cost consequences.
• On costs, the court allowed the claimant a cross-appeal on costs to the extent of substituting an order that the costs of the claimant's application for permission to proceed be the claimant's costs in the case.

Wider context:

The court noted the constitutional and practical significance of treating a statutory permission as jurisdictional, the rarity of such a remedy and the demanding background that led to Seal; it found that no equivalent background existed for s.329.

The appeal is dismissed. The court held that section 329 of the Criminal Justice Act 2003 is procedural and directory rather than jurisdictional, so proceedings begun without prior permission may be cured by subsequent application; there was also a factual basis for concluding there was evidence that the force used might have been grossly disproportionate. The costs order was amended so that the claimant must pay the costs of his application for permission to proceed.

Appeal from the High Court of Justice, Queen's Bench Division (Owen J) (Claim No: HQ07X02848), judgment at first instance reported as [2008] EWHC 1081 (QB). The appeal was heard in the Court of Appeal (Civil Division) on 18 December 2008 and decided 23 January 2009.