Johnston v Chief Constable of Merseyside Police

Permission under section 139(2) of the Mental Health Act 1983 should be granted where the proposed claim is not frivolous, vexatious or an abuse of process and has a real prospect of success. The court must apply the low threshold identified in Winch v Jones, while accommodating the CPR Part 24 real-prospect standard.

Under section 33 of the Limitation Act 1980, the court must consider all the circumstances and determine what is equitable. A short delay caused by legal advisers, causing no evidential prejudice and arising in a claim already commenced within time, may justify disapplying the limitation period.

The proposed claimant sought permission under section 139(2) of the Mental Health Act 1983 to bring claims for assault and false imprisonment arising from his detention and the use of CS spray by a police officer. He also sought disapplication under section 33 of the Limitation Act 1980 of the three-year period applicable to the assault claim.

The incident occurred on 8 January 2006. Earlier proceedings had been commenced within time but were discontinued after the defendant raised the absence of the required permission. The central issues were whether the proposed claims met the section 139 threshold and whether the two-and-a-half-month delay should be excused.

1. Permission under section 139. The court followed Winch v Jones [1986] 1 QB 296. The question was whether, on the immediately available material, the complaint deserved fuller investigation and was not frivolous, vexatious or an abuse of process. The threshold was unexacting, consistent with Seal v Chief Constable of South Wales Police [2007] UKHL 31; [2007] 1 WLR 1910.
2. The court added a qualification derived from CPR Part 24: the proposed claim must also have a real prospect of success. That criterion concerned absence of reality rather than probability, reflecting Swain v Hillman [2001] 1 All ER 91 and Three Rivers DC v Bank of England (No 3) [2001] 2 All ER 513.
3. The evidence disclosed a genuine conflict between the principal witnesses, supported in part by independent evidence. The injuries caused by the CS spray made excessive force arguable, and there was a legitimate issue as to whether the officer had acted under section 136 or given the necessary warning. The claim therefore had a real prospect of success and was not abusive. Permission under section 139(2) was granted.
4. Limitation. The false-imprisonment claim fell within the six-year period under section 2 of the Limitation Act 1980. Following A v Hoare [2008] 2 WLR 311, the assault claim was subject to the three-year period under section 11(4), which could be disapplied under section 33(1).
5. Applying section 33(3), the court considered the short delay, the claimant’s diligence, the absence of prejudice or diminished evidential cogency, the defendant’s proper conduct, the claimant’s mental health, and the fact that earlier proceedings had been issued within time. The balance was equitable and proportionate. The limitation period was disapplied and the proposed claimant was permitted to bring the proceedings.