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R (Smith) v LB Camden [2011] EWCA Civ 1207

Unsuccessful application for permission for second appeal against strike-out of claim for want of compliance with s139. (The claim was for damages of £100 billion for wrongful removal from his flat and for being forced to live in various mental health institutions where he claimed to have been assaulted many times.)

Transcript

The transcript will remain below until published on Bailii.

                                                           Case No: A2/2011/0015



Neutral Citation Number: [2011] EWCA Civ 1207


IN THE COURT OF APPEAL (CIVIL DIVISION)


ON APPEAL FROM THE QUEEN'S BENCH DIVISION


MR JUSTICE BURNETT



                                                         Royal Courts of Justice




                                                        Strand, London, WC2A 2LL




                                                 Date:  Thursday, 6 October 2011




                                    Before:




                              LORD JUSTICE KITCHIN




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                                    Between:

                                  ALEX SMITH                        Appellant





                                       v








LONDON BOROUGH OF CAMDEN



                                   Respondent




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                               (DAR Transcript of




                         WordWave International Limited




                        A Merrill Communications Company




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                  Tel No:  020 7404 1400 Fax No: 020 7831 8838




                    Official Shorthand Writers to the Court)




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The Appellant appeared in person.


The Respondent did not appear and was not represented.



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                                    Judgment




                                   (Approved)



Crown Copyright ©Lord Justice Kitchin:


1.     This is an application by the appellant for permission to appeal against
the order of Burnett J dated 26 November 2010 whereby he refused the appellant's
application to vary or set aside the order of Master Fontaine dated 22 October
2010.  Burnett J treated the application as an appeal and, accordingly, this is
an application for permission for a second appeal.  The Court of Appeal will not
give permission for such a second appeal unless it considers that the appeal
would raises an important point of principle or general practice or there is
some other compelling reason for the Court of Appeal to hear it.





2.     The application arises in proceedings issued by the appellant on 3 August

 2010 for damages of £100 billion for wrongfully removing him from his flat in
York Way and forcing him to live in various mental health institutions where he
claims to have been assaulted many times.


3.     On 22 September 2010, Master Fontaine, on the application of the
respondent, made an order striking out the claim on the basis that the appellant
had not complied with section 139 of the Mental Health Act 1983 ("the Act").
This provides, so far as relevant:


"(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,
... 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.


....


(4) This section does not apply to proceedings against the Secretary of State or
against a Strategic Health Authority, Local Health Board, Special Health
Authority or Primary Care Trust or against a National Health Service trust
established under the National Health Service Act 2006 or the National Health
Service (Wales) Act 2006 or NHS foundation trust or against the Department of
Justice in Northern Ireland."


4.     Practice direction 2(b) to CPR Part 2 provides that a Master or District
Judge may not make an order in an application under section 139 of the Act for
permission to bring proceedings.


5.     The insuperable difficulty facing the appellant, as Master Fontaine and
Burnett J explained, is that the acts of which he complains were purportedly
done in pursuance of the Act and yet the appellant has never sought or obtained
the leave of a High Court judge to bring or pursue the proceedings.  The
appellant has, at least at an earlier stage, also sought to rely on section
139(4) of the Act.  However, as Burnett J held, the respondent is not any of the
bodies referred to in section 139(4).  Accordingly, I agree with Burnett J that
an appeal has no prospect of success.  His judgment is, I believe, plainly
right.


6.     In all the circumstances, I must refuse permission to appeal.  I would
add that this application does not in any event raise an important point of
principle or general practice, nor is there some other compelling reason for the
Court of Appeal to hear it.


Order:  Permission refused

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