Kieran Upadrasta v The Commissioner of the City of London Police

Procedural errors in the allocation or service of an application do not automatically invalidate an order. The court may preserve the order under the de facto authority doctrine and CPR 3.10 where the judicial officer is not a usurper and an effective remedy, including an application to set aside, remains available.

Leave under section 139 of the Mental Health Act 1983 requires only an arguable, non-frivolous claim deserving further investigation. Strike out and summary judgment are inappropriate where material factual disputes remain about the legal power used, the timing and fact of detention, and whether statutory conditions were satisfied.

The claimant sought damages for alleged false imprisonment, trespass and assault arising from police officers entering his flat and removing him during a welfare incident. The officers purported to act under section 136 of the Mental Health Act 1983.

A Master granted leave under section 139(2), although Masters were not permitted by Practice Direction 2B to grant such leave. The application had been dealt with without notice, and the order was not served promptly on the defendant. The defendant applied to set aside the order, strike out the claim or obtain summary judgment. The claimant sought retrospective or prospective leave if the defendant succeeded.

The central issues were whether the Master’s order was invalid, whether procedural failures amounted to abuse, whether the claim had no real prospect of success, and whether leave had properly been granted on the merits.

1. The Master’s order remained valid. The prohibition in Practice Direction 2B, paragraph 3.1(g), created an error of procedure, but did not automatically invalidate the order under CPR 3.10(a). Applying Fawdry v Murfitt, Baldock v Webster and Popely v Popely, the Master was not a usurper and had colourable authority to act. The public interest in the finality and proper authority of court orders supported application of the de facto authority doctrine. The defendant also had a right to apply to set aside or vary the order under CPR 23.10.
2. The further procedural failings, including the failure to serve the application and order, did not themselves invalidate the order. The most significant failure was capable of remedy through the defendant’s application to set the order aside.
3. Strike out under CPR 3.4(2)(b) or (c) was refused. The claimant’s conduct did not amount to abuse of process, and strike out is a draconian remedy to be used as a last resort, as illustrated by Cable v Liverpool Victoria Insurance Co. Ltd.
4. Summary judgment under CPR 24.2 was refused. Material disputes remained concerning the officers’ intentions, the legal power used to enter and remove the claimant, when and where detention began, the significance of the ambulance request, whether the claimant was in immediate need of care or control, and whether section 136 could properly be relied upon after the claimant had been encouraged or removed from his home. Detention is a question of fact, applying the approach in Lewis v Chief Constable of South Wales, Spicer v Holt and Holgate-Mohamed v Duke. The guidance in the Mental Health Act Code of Practice that it is inappropriate to encourage a person outside in order to use section 136 was relevant, applying R (Munjaz) v Mersey Care NHS Trust.
5. The Master was correct to grant section 139 leave. The applicable test, endorsed in Seal v Chief Constable of South Wales Police and Winch v Jones, was whether the claim deserved further investigation and was not frivolous, vexatious or an abuse of process. The claimant’s allegations met that low threshold. The order was therefore not set aside on the merits.
6. The defendant’s applications for strike out and summary judgment were dismissed. The Master’s order was neither declared invalid nor set aside. No order was required on the claimant’s alternative application.

The judgment itself was a High Court determination of applications to set aside a Master’s order, strike out the claim and obtain summary judgment. No appellate history is stated.