CASE OF SEAL v. THE UNITED KINGDOM
Remainder inadmissible;No violation of Art. 6-1
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
7. The applicant was born in 1944 and lives in Merthyr Tydfil. 8. In the early evening of 9 December 1997, the applicant went to visit his mother at her house in Merthyr Tydfil but could not park his car because of obstruction by other vehicles. He went into his mother's house having been unable to alert the owners of other vehicles by sounding his horn. He decided to telephone the police to complain about the obstruction and his mother tried to stop him. At some stage, someone contacted the police and they arrived at the house some minutes later. 9. There is a dispute about what occurred subsequently. The applicant was arrested inside his mother's house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside the house into the street. The police claimed that at that stage, they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section 136(1) of the Mental Health Act 1983 (“the 1983 Act” – see paragraphs 33-36 below). 10. The applicant was taken to St Tydfil's hospital, less than a mile away from his mother's home, where he was detained pursuant to section 136(2) of the 1983 Act and, subsequently, section 2 of the 1983 Act until 18 December 1997, when his release was ordered by a mental health review tribunal. 11. On 5 August 2003, the applicant's then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant's detention under section 136. 12. On 8 December 2003, the eve of the expiry of the relevant limitation period (see paragraph 37 below), the applicant (who was by then no longer legally represented) issued proceedings in the County Court seeking damages from the Chief Constable of South Wales Police for “trespass, assault, wrongful arrest, misuse of police powers, misuse of section 136 of the 1983 Act, falsehood and personal injuries sustained” as a result of the events of 9 December 1997. His particulars of claim indicated that: “At the time of the incident on 9/12/97 at my mother's house the police at no time inform[ed] me of any arrest or that I was to be detained pursuant to Section 136 of the Mental Health Act, 1983. I am aware that the police can only use Section 136 to detain persons found in public places provided that the person to be detained appears to the police constable to have a mental disorder and to be in immediate need of care or control and such that it be necessary to take the person to a place of safety for the protection of the person detained or for the protection of others. At no stage did the police find me in a public place, on the contrary I was taken from a private dwelling by the police to a public place and at no time could my conduct be construed or considered as that of a mentally-disordered person. Therefore the use of Section 136 of the Mental Health Act was unlawful.” 13. Under section 139(2) of the 1983 Act, the leave of the High Court was required prior to the commencement of any claim relating to the exercise of powers under that Act (see paragraph 34 below). The applicant failed to seek High Court leave before commencing his claim. 14. On 4 May 2004, the respondent filed both a defence to the claim on the grounds of section 139(1) of the 1983 Act (see paragraph 34 below) relying on the absence of allegations of bad faith or failure to take reasonable care and an application for the claim to be struck out on the grounds that leave from the High Court, as required under section 139(2), had not been obtained prior to the proceedings being brought. The respondent further argued that the claims in defamation and falsehood were time-barred pursuant to section 4A of the Limitation Act 1980 (“the 1980 Act” – see paragraph 38 below). 15. On 5 July 2004, the County Court ordered that the claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by the High Court. The claim in defamation and malicious falsehood was struck out by consent as the relevant limitation period had expired in respect of such claims. 16. On 27 August 2004, permission to appeal the decision to strike out the claim was granted. 17. On 18 October 2004, the Circuit Judge varied the order of the County Court. He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under the 1983 Act. In relation to the applicant's complaints regarding his detention under the 1983 Act, however, the Circuit Judge dismissed the applicant's appeal, finding the legal proceedings in that regard to be a nullity as a result of the failure to obtain prior leave. 18. In handing down his judgment, he noted: “I did consider at one stage whether it would be open to Mr. Seal simply to make an application to the High Court for the permission required by section 139 of the Mental Health Act and then simply apply under the provisions of the [Civil Procedure Rules] ... to add the further claim. However, the defendant will raise the Limitation Act defence.” 19. The applicant was granted leave to appeal to the Court of Appeal. 20. Before the Court of Appeal, the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under the 1983 Act until the necessary leave had been obtained. On 19 May 2005, the Court of Appeal dismissed the applicant's appeal. Leave to appeal to the House of Lords was granted. 21. The argument before the House of Lords focussed on the consequences in terms of section 139(2) of the 1983 Act of bringing proceedings without prior leave from the High Court. The respondent argued that such a failure rendered the proceedings a nullity. The applicant, on the other hand, argued that lack of leave was a procedural irregularity which could be corrected. 22. On 4 July 2007, the House of Lords handed down its judgment and, by a majority of three to two, dismissed the applicant's appeal. 23. Lord Bingham of Cornhill, of the majority, considered the applicant's argument that section 139(2) infringed his right of access to court but concluded that this was not an argument that he could accept. He noted (at paragraph 20): “The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones [1986] QB 296. An applicant with an arguable case will be granted leave. Mr Seal's undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213.” 24. Similarly, Lord Brown of Eaton-under-Heywood considered that Parliament had made it clear under section 139 that relevant proceedings brought without leave were a nullity. “ 73. It seems to me quite evident from the legislative history of this provision that from 1930 onwards Parliament intended to make leave a precondition of any effective proceedings. Unlike the position prior to 1930, the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a High Court judge. Absent such leave, albeit he might be notified of a claimant's proposal to proceed against him, he was not to be troubled by such proceedings. The very inflexibility of the provision was an integral part of the protection it afforded. If, however, the [applicant's] approach were to be adopted, inevitably (unless by chance the court took the point of its own motion) the defendant himself would be drawn into the litigation. 74. ... I repeat, the requirement for leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued. And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide. Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation. Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, been extensively debated over recent years. But your Lordships' task is not to decide whether it is desirable but whether presently the legislation confers it.” 25. As to the Article 6 argument advanced by the applicant, Lord Brown said (at paragraph 75): “To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful. Such an approach cannot sensibly be seen (as Baroness Hale suggests) 'to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant'. Nor can it be seen to have 'an effect out of all proportion to the aim which it is attempting to pursue.' Of course, in a rare case (perhaps such as this one) a combination of circumstances—ignorance of the law (ie of section 139(2)), the delay in the issue of proceedings until the very end of the six year limitation period, and the inflexibility of section 2 of the Limitation Act 1980 itself (assuming the defendant chooses to take the Limitation Act defence) will operate to deprive the prospective claimant of his claim. But that, of course, is equally so in the case of a litigant in person ignorant of the six year limitation period itself. In each case the loss of the claim is the price paid for certainty—just as there is a price to be paid for the established principle (and the assurance it provides) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to article 6 and it seems to me unsurprising that the point was not even taken in the courts below.” 26. Baroness Hale of Richmond, dissenting, noted at the outset of her opinion (at paragraph 38): “The question is one of statutory construction. Despite the antiquity of this provision, which dates back to the Mental Treatment Act 1930, the question has never arisen directly before. But it concerns a fundamental constitutional right – the right of access to the courts. It also concerns the exercise of that right by a peculiarly vulnerable group of people – people who are or have been the subject of compulsory detention under the Mental Health Act 1983. The courts here – and in Strasbourg – have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints: see particularly Golder v United Kingdom (1975) 1 EHRR 524 in Strasbourg and R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 in the United Kingdom. The courts should be no less vigilant to safeguard the rights of mental patients, most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims.” 27. She continued: “41. I approach the task of construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived of access to the courts, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant. 42. The express words are: 'No civil proceedings shall be brought ... in respect of any such act without the leave of the High Court; ...' These words say nothing about what is to be the consequence if, through ignorance or error, proceedings are in fact started without leave ...” ... “49. Nowhere ... is there any discussion of the consequence if proceedings are brought without first obtaining leave. The purpose was and remains the protection of staff. But protection from what? It cannot have been intended or expected that staff would be protected from all knowledge of possible claims. The 1930 Act had expressly required that notice of an application for leave be given to the proposed defendant. Good practice and common courtesy, then as now, would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave. What staff are protected from is having to defend a baseless action. Such protection is not undermined if an action is, whether through ignorance or inadvertence, begun without leave and the defendant takes the point or the court takes it of its own motion. The burden is still on the claimant to establish that the case should go further.” 28. She concluded (at paragraphs 53-54) that: “If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant. If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred. The fact that leave is required at all may not emerge until a relatively late stage in the proceedings. That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no-one noticed at the time is an affront to justice. My Lords, I would not interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language so to do. The statutory language makes it clear that if anyone, including the claimant, appreciates the point, then leave must be obtained. It does not make it clear that if no-one, including the court or the defendant, does so, the proceedings are a nullity. Halfway houses are usually to be preferred to absolute extremes.” 29. Considering Article 6 § 1 and the jurisprudence of this Court, Baroness Hale noted: “57. To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. This is not only empirically unproven. It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever. On the one hand, therefore, section 139(2) goes too far. On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself. If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection. 58. This case is an excellent illustration. The police case is that Mr Seal was first arrested inside his mother's home for a breach of the peace. Having been taken outside he was then detained under section 136(1) of the 1983 Act: ... Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest. 59. Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends. There will be cases in which the operation of section 139(2) is proportionate. There will be other cases, quite possibly including this, in which it is not. Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. If section 139(2) has the effect that proceedings are always a compete nullity, thus depriving a claimant of a good claim, that is an effect out of all proportion to the aim which it is attempting to pursue. Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response.” 30. In the applicant's case, she concluded that the appeal should be allowed, noting (at paragraphs 60-61): “ The police may well have an answer to Mr Seal's claim. But their case is not without difficulty. If he was 'removed' under section 136 of the Mental Health Act from his mother's home, he cannot have been 'found in a place to which the public have access'. If he was arrested in her home for a breach of the peace, and then 'removed' under section 136 after they had taken him outside, can it be said that they 'found' him there? (To say otherwise would deprive section 136 of much of its usefulness when an arrested person is later discovered to have a mental disorder.) These are questions which deserve to be addressed at the trial of the claim. By no stretch of the imagination is this vexatious. It may not be worth a great deal of money but that is not the point. 61. Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. I do not believe that Parliament ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain the High Court's leave in time. Defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims. But if that was Parliament's intention, it is an irrational and disproportionate interference in the Convention right to access to justice. There is no problem in reading down section 139(2) to cure that because there is nothing there to prevent it. However, the best solution would be to remove the procedural requirement altogether, as proposed in Clause 298 of the Draft Mental Health Bill proposed by the Department of Health in 2004 (2004, Cm 6305-1). The Mental Health Bill currently before Parliament, provides such an opportunity.” 31. Also dissenting, Lord Woolf accepted that it was not desirable to leave it until the limitation period had 32. Following the conclusion of the proceedings in the House of Lords, the applicant did not continue with the remainder of his claim (see paragraphs 12, 15 and 17 above) in the County Court. 33. Section 136 of the 1983 Act, as in force at the time of the applicant's arrest and the commencement of the legal proceedings in this case, provided as follows: “(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above. (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” 34. Section 139 provided: “(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.” 35. The relevant provisions of the 1983 Act have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes. 36. Section 2 of the 1983 Act allows for detention for the purposes of assessment for up to 28 days. 37. Section 2 of the Limitation Act 1980 (“the 1980 Act”) provides as follows: “An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued” 38. Section 4A establishes a more limited time period for commencing actions for defamation or malicious falsehood and provides that: “The time limit under section 2 of this Act shall not apply to an action for– (a) libel or slander, or (b) slander of title, slander of goods or other malicious falsehood, but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.” 39. Section 11 of the 1980 Act provides for a special time limit for actions in respect of personal injuries: “(1) This section applies to any action for damages for negligence, nuisance or breach of duty ... where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ... (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4) Except where subsection (5) below applies, the period applicable is three years from– (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured. ...” 40. Section 33 of the Act provides for discretionary disapplication of the time-limit for actions in respect of personal injuries or death: “(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which– (a) the provisions of section 11 ... of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. ... – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ...; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; ... (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. ...” 41. The United Nations Convention on the Rights of Persons with Disabilities, signed by the respondent State on 30 March 2007 and ratified on 8 June 2009, aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (Article 1 of the UN Convention). 42. Article 12 provides for equal recognition before the law and stipulates: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” 43. Article 13 contains provisions on access to justice and provides, in so far as relevant: “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. ...”