Police - Civil proceedings - Personal injury claims

Anthony Adorian v Commissioner of Police of the Metropolis: CA (Civ Div) (Lords Justice Sedley, Keene, Lady Justice Smith): 23 January 2009

The appellant police commissioner appealed against a decision of the judge refusing to strike out a personal injury claim brought by the respondent (X). X cross-appealed against the judge’s decision in respect of costs.

X had been arrested for disorderly behaviour, in the course of which he suffered severe injuries including a complex fracture of his right femur. He subsequently issued a claim against the commissioner seeking damages for personal injury. The commissioner applied to strike out the claim on the ground that X’s failure to obtain the court’s permission in advance before issuing proceedings, in accordance with section 329(2) of the Criminal Justice Act 2003, rendered the proceedings void. X contended that the requirement of permission was procedural and did not go to jurisdiction, and he made a cross-application for permission to bring the proceedings. The judge found that the requirement of permission was directory, not mandatory. He granted X’s cross-application, having found that on the evidence before him a court could properly conclude that grossly disproportionate force had been used, and because the balance of justice favoured the grant of permission. The judge then ordered the commissioner to pay the costs of the unsuccessful application to strike out, but made no order as to costs of X’s application for permission to proceed. The commissioner contended that, on the proper construction of section 329(2), the want of permission to bring the proceedings was fatal, rather than curable. X submitted that he ought to have been awarded his costs of the successful cross-application.

Held: (1) On its proper construction, section 329 stipulated only that a claimant who sued someone for assaulting him in trying to prevent a crime or to apprehend him for committing it would have to show merits sufficient to defeat the special statutory defence if his action was to be allowed to proceed. It made it legitimate to visit in costs an application which was made later than it should have been, but it did not either explicitly or implicitly involve the drastic step of nullifying proceedings, however sound, which had been initiated without first clearing that hurdle, Seal v Chief Constable of South Wales [2007] UKHL 31, [2007] 1 WLR 1910 considered. The judge had been entitled to find that the requirement of section 329, that the court’s permission had to be obtained to bring proceedings in the circumstances specified by the section, was procedural and directory. It followed that if such proceedings were brought without permission, the defect could, if appropriate, be cured on application to the court, which could reflect in costs its view of the conduct of the proceedings.

(2) There were no sufficient reasons to justify the judge’s departure from the usual order that costs follow the event. The judge’s order for costs would, accordingly, be substituted to the extent that the costs of the application for permission to proceed be X’s costs in the case.

Appeal dismissed, cross-appeal allowed.

E Faulks QC, P Stagg (instructed by in-house solicitor) for the appellant; T Owen QC, P Kaufmann (instructed by Bhatt Murphy) for the respondent.