West Law Report

ADORIAN v COMMISSIONER OF POLICE OF THE METROPOLIS

Posted in Assault, Criminal Justice Act, Police powers and duties, Westlaw Reports by mrkooenglish on June 4, 2008

Last Updated: 3:18PM BST 04/06/2008
Queen’s Bench Division Owen J May 19, 2008
Claims – Interpretation – Police officers – Procedural irregularity – Trespass to the person – Meaning of s. 329(2) Criminal Justice Act 2003 – Requirement to obtain court’s permission to bring civil proceedings – s. 329(2) Criminal Justice Act 2003

FACTS

The defendant Commissioner of Police (D) applied to strike out a claim for damages for assault on the ground that the claimant (C) had failed to obtain the court’s permission to issue proceedings in accordance with the Criminal Justice Act 2003 s. 329(2). C had been arrested and was subsequently found guilty of obstructing police officers in the execution of their duty. Following his arrest, C was found to have sustained a complex injury involving fractures to the head of his right femur. C contended that the injuries were sustained in the course of his arrest and issued a claim for damages for assault. D submitted that s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety. C submitted that the court could entertain a subsequent application for permission and permission should be granted.

ISSUE

Whether s. 329(2) gave rise to a mandatory requirement to obtain the court’s permission before the issue of proceedings and that a failure to do so rendered the proceedings a nullity in their entirety.

HELD (judgment accordingly)

(1) A failure to comply with s. 329(2) did not render the proceedings a nullity, but amounted to a procedural irregularity that could be cured by a subsequent application at the discretion of the court, Rendall v Blair (1890) LR 45 Ch D 139 CA and Re Saunders (A Bankrupt) [1997] Ch 60 Ch D applied. There were a number of reasons for that conclusion. Firstly, recourse to the courts was not to be excluded except by clear words. Secondly, there was no legislative history from which it was clear that Parliament intended compliance to be mandatory, Seal v Chief Constable of South Wales [2007] UKHL 31, [2007] 1 WLR 1910 distinguished. Thirdly, to construe s. 329(2) as a mandatory requirement would have the effect of defeating other causes of action brought in the proceedings, which would be restrictive. Fourthly, the protection for a prospective defendant provided by the section was not lost by treating prior permission as a procedural requirement. A defendant would be able to apply to the court to have the proceedings struck out if proceedings were commenced without prior permission.

(2) C sustained extremely serious injuries in the course of his arrest. It would be plainly open to a court to conclude that the force used in the restraining of C in the course of his arrest was grossly disproportionate. C therefore satisfied the test in s. 329(3). Justice required that C’s claim that such injuries as were sustained by trespass to the person or negligence or both should be determined by the court.

Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant. P Stagg (instructed by in-house solicitor) for the defendant.

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