View source for Adorian v Commissioner of Police of the Metropolis (2009) EWCA Civ 18

''Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court.''

==Summary==
The conclusion is set out at paragraphs 40-42:

<i>40. With or without resort to Hansard, in our judgment s.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.

41. It follows, as it does in limitation cases, that a lawsuit within s.329, begun without permission, can properly proceed to trial if the permission point is not taken. Where the claim is plainly eligible for permission, this is an economical and practical course. If it were otherwise, the point could not only be unanswerably taken against the claimant at an advanced stage of the proceedings, and costs be resisted on the ground that the progress of the action without permission has been entirely unlawful, but the judge would be required to take the point at trial. Moreover, a perfectly sound claim issued late in the limitation period could be defeated, or at least placed at risk, by an opportunistic motion to strike it out, brought in the knowledge that by the time permission could now be obtained the claim will be out of time. In any such event a case which everyone knows is perfectly sound would collapse. This, of course, is the effect of the decision in Seal on actions within [[s139]] of the Mental Health Act 1983; but it illustrates why it took a compelling legislative history to drive the House, by a bare majority, to a conclusion against which principle required it to lean. There is no such background or evident purpose to s.329.

42. We hold accordingly, in agreement with Owen J, that the requirement of s.329 of the [[Criminal Justice Act 2003]] that the court's permission must be obtained to bring proceedings in the circumstances specified by the section is procedural and directory. It will follow that if such proceedings are brought without permission the defect can, if appropriate, be cured on application to the court, which can reflect in costs its view of the conduct of the proceedings. It will be a sensible use of initial correspondence for defendants to draw attention, where it potentially applies, to s.329 and to indicate whether they propose to take any point on it. </i>

Adorian's cross-appeal on costs was allowed.

==ICLR==
{{ICLR|Adorian v Commissioner of Police of the Metropolis (2009) EWCA Civ 18}}

==Other==
Judgment 23/01/2009

Hearing 18/12/08

Mr T Owen QC and Ms P Kaufmann (instructed by Messrs Bhatt Murphy) for the Claimant/Respondent

Mr E Faulks QC and Mr P Stagg (instructed by Directorate of Legal Services) for the Defendant/Appellant

==External link==
{{#bailii:[2009] EWCA Civ 18}}

[http://www.lawreports.co.uk/WLRD/2009/CACiv/jan0.9.htm ICLR report] - [2009] WLR (D) 23


[[Category:Miscellaneous cases]]
[[Category:Detailed summary]]
[[Category:Transcript]]
[[Category:2009 cases]]