Adorian v The Commissioner of Police of the Metropolis: CA 23 Jan 2009

The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed against a refusal to strike out the claim, saying that consent to the action should have been obtained.
Held: The Commissioner’s appeal failed. The section is not directed primarily at protecting the police. Interpreting the section as a jurisdictional bar rather than a procedural one would complicate further limit the applicable limitation periods. An application for consent would have to be made on notice. ‘Section 329 stipulates only that a claimant who sues someone for assaulting him in trying to prevent a crime or to apprehend him for committing it will have to show merits sufficient to defeat the special statutory defence if his action is to be allowed to proceed. It makes it legitimate to visit in costs an application which is made later than it should have been, but it does not either explicitly or implicitly involve the drastic step of nullifying proceedings, however sound, which have been initiated without first clearing this hurdle.’

Sedley LJ, Keene LJ, Smith LJ
[2009] EWCA Civ 18, Times 23-Feb-2009, [2009] CP Rep 21, [2009] 1 WLR 1859
Criminal Justice Act 2003 329
England and Wales
CitedRendall v Blair 1890
Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed . .
CitedBarras v Aberdeen Steam Trawling and Fishing Co HL 17-Mar-1933
The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the . .
CitedIn re Saunders (A Bankrupt) ChD 1997
Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had . .
Appeal fromAdorian v Commissioner of Police of the Metropolis QBD 19-May-2008
Claim for damages for assault during arrest. It became necessary for the claimant to issue proceedings very quickly after the decision in Hoare, and he failed to obtain consent under the 2003 Act before issuing his claim.
Held: The requirement . .
CitedA v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
CitedWinch v Jones CA 1986
The court asked as to the criteria which should be applied when considering an application by a mental patient for leave to bring proceedings under section 139: ‘section 139 protects the defendant unless and until the applicant obtains leave. This . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Cited by:
CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

Lists of cited by and citing cases may be incomplete.

Police, Personal Injury, Litigation Practice

Updated: 10 November 2021; Ref: scu.280131