Order granting permission under section 139 of the Mental Health Act upheld despite procedural errors (Upadrasta v Commissioner of the City of London Police)

Dispute Resolution analysis: An order granting leave to bring proceedings under section 139 of the Mental Health Act 1983 has been upheld notwithstanding procedural errors in the grant of leave, most strikingly the fact that leave was granted by a Master in circumstances where it could only properly have been granted by a Judge.

Upadrasta v Commissioner of the City of London Police [2023] EWHC 1853 (KB)

What are the practical implications of this case?

This is an interesting judgment on the approach which a Court should take to procedural errors in the making of an order. The judgment is relevant to claims brought under the Mental Health Act 1983 where permission to bring certain claims is required and there is a restriction on the level of judiciary who can grant permission. It is also relevant more broadly, however, to all circumstances in which, for example, an application is determined by a Master when it is reserved to a higher level of judge. This judgment reviews a number of authorities such as Fawdry v Murfitt [2003] QB 104, Baldock v Webster [2006] QB 315 and Popely v Popely [2018] EWHC 276 (Ch) and the extent to which an error of procedure renders an order invalid. This judgment is likely to be interpreted as adopting a broadly permissive stance which tends towards upholding orders made in erroneous procedural circumstances.

What was the background?

On 11 September 2020, police attended the home of the Claimant and purported to exercise powers under section 136 of the Mental Health Act 1983 to detail him. Proceedings were issued alleging false imprisonment in respect of that detention. The Particulars of Claim also allege that the officers committed a trespass by entering into his home and that the threatened and actual use of force on him constituted assaults. The Claimant intends to apply to amend the claim form to ensure that it aligns with the Particulars of Claim. Because the claim constitutes “civil proceedings” in respect of acts “purporting to be done” under the Mental Health Act against a Defendant who is not excluded by the relevant provisions, leave to bring the proceedings was required by section 139(2) of the Act. Leave was given by a Master. However, under the CPR, Masters are not permitted to make orders granting leave under section 139. The Defendant has applied to strike out, alternatively obtain summary judgment on, the claim and has not filed a defence. That application was based both on the procedural ground that the Master did not have jurisdiction to make the order granting leave and on substantive grounds. By a subsequent application made by the Claimant, if the Defendant’s application succeeds, retrospective leave to bring the claim is sought. As a result of the issues raised, the applications came before a High Court Judge, Mrs Justice Hill, rather than before a Master.

What did the court decide?

The Master’s order was not to be declared invalid pursuant to r.3.10(a) of the Civil Procedure Rules by reason of the apparent procedural failings. The situation here was analogous to that in Popely v Popely [2018] EWHC 276 (Ch). The claim was issued with the requisite leave of the Court. The order granting that leave, however, was made in breach of an applicable practice direction and was, therefore, subect to an error of procedure. That error did not invalidate the steps taken in accordance with the Master’s order. Although the Court considered there was force in some of the other objections raised by the Defendant about the conduct of the Claimant in obtaining permission from the Master, none of those matters rendered the order itself invalid. Rule 3.10 applied and none of those errors of procedure invalidated any steps taken in accordance with the Master’s order. The Defendant’s applications for strike out and summary judgment were dismissed. The Court was not persuaded that any of the Claimant’s actions in bringing the claim constituted an abuse of process. In particular, the fact that the Claimant had issued previous proceedings which had been struck out as a nullity did not give rise to an abuse of process. Those earlier proceedings had been issued in error and had not been served on the Defendant. At the core of the dispute were a number of disputed factual issues which could only realistically be resolved at trial. It was not, therefore, suitable for a grant of summary judgment. The Master’s order was not set aside on the basis of the substantive grounds. The factual disputes necessitating a trial demonstrate also that the claim being brought by the Claimant is not vexatious and the Master had been correct to grant leave under section 139 of the Act on the merits.

Case details

• Court: High Court of Justice, King’s Bench Division
• Judge: Mrs Justice Hill DBE
• Date of judgment: 17 July 2023

Article by Phillip Patterson – first published by LexisNexis.