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 when it is intended that some preliminary steps should be taken before the action is maintainable at all’ and ‘It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last.’
The legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory.
Bowen LJ
(1890) 45 Ch D 139
Charitable Trusts Act 1853 17
Cited by:
Considered – In 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 . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Seal 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 . .
Cited – 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 . .
Cited – Park 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.
Updated: 23 October 2021; Ref: scu.226024 br>