| TORT — Trespass to person — Civil claim brought by convicted offender — Permission to proceed — Personal injuries — Limitation of action — Discretion of court — Mental Health Act 1983, s 139(2), (3) — Police Act 1996, s 89(2) — Criminal Justice Act 2003, s 329(2)
Adorian v Commissioner of Police of the Metropolis [2008] EWHC 1081 (QB); [2008] WLR (D) 158
QBD: Owen J: 19 May 2008
Civil proceedings for trespass to the person commenced by a claimant who has been convicted in the United Kingdom of an imprisonable offence, committed on the same occasion as the alleged trespass, are not rendered a nullity by the claimant’s failure to seek the prior permission of the court as required by s 329(2) of the Criminal Justice Act 2003.
Owen J so held when granting to the claimant, Anthony Adorian, permission under s 329(2) of the 2003 Act to proceed with a claim against the defendant, the Commissioner of Police of the Metropolis, seeking damages for negligence and assault and battery in relation to serious injuries allegedly sustained in the course of his arrest in August 2004 by officers of the Metropolitan Police. The claimant had subsequently been convicted of obstructing the police officers in the execution of their duty contrary to s 89(2) of the Police Act 1996. The defendant applied for a declaration that the court had no jurisdiction to try the claim, and for an order striking out the claim on the grounds of the claimant’s non-compliance with s 329(2) of the 2003 Act.
OWEN J said that the claimant’s failure to comply with s 329(2) did not render the proceedings a nullity but rather amounted to a procedural irregularity, which could be cured by subsequent application at the discretion of the court. In this case there were four reasons why the court should exercise its discretion. Firstly, recourse to the court was not to be excluded except by clear words. Secondly, s 329(2) was to be distinguished from the provision in s 139(2) of the Mental Health Act 1983 which required the leave of the High Court to bring civil proceedings and the consent of the Director of Public Prosecutions to bring criminal proceedings in respect of acts purporting to be done in pursuance of the 1983 Act, failure to comply with which was held by the House of Lords in Seal v Chief Constable of the South Wales Police [2007] 1 WLR 1920 to render such proceedings a nullity. Section 329(2), unlike s 139 of the 1983 Act, had no legislative history making it clear that Parliament intended the requirement for prior permission to be mandatory. Further, section 329(2), unlike s 139 of the 1983 Act, did not apply to criminal proceedings. Thirdly, other claims brought in the same proceedings, such as the negligence claim in this case, would be defeated if non-compliance with s 329(2) rendered the proceedings a nullity. Fourthly, the protection afforded by s 329(2) to a defendant would not be lost by treating the requirement for prior permission as procedural. A claimant would have to surmount the same hurdles in s 329(3) and (5) on a subsequent application for permission. The court’s discretion to grant permission should be exercised in favour of the claimant because he had sustained extremely serious injuries in the course of his arrest, and it would be open to the court to conclude that the force used in restraining him had been grossly disproportionate within the meaning of s 329(3)(b). If retrospective permission were not to be granted the claimant’s claim of trespass to the person would be time-barred as a result of the decision in A v Hoare [2008] 2 WLR 311. The claimant’s failure to apply for permission had not been deliberate and neither he nor his solicitors had been aware of s 329 at the time of issuing the proceedings.
|
