A matter of restraint

This case is a useful reminder to those defending claims against the police that as long as officers have acted in obedience with a warrant they will…

Peter Gaisiance v (1) Ministry of Justice, (2) South London & Maudsley NHS Foundation Trust, (3) Mayor and Burgess of the London Borough of Southwark, (4) South London and Maudsley Assessment Liaison team and (5)Commissioner of Police of the Metropolis

High Court
Queens Bench Division
Sir Alistair MacDuff Sitting as a High Court Judge

4 July 2018

Executive summary

A claim for £2.9m struck out against all defendants. The claimant had been detained pursuant to a warrant issued under section 135 (1) Mental Health Act 1983. He had been taken from his home pursuant to that warrant and treated in hospital. The warrant had been properly issued and the particulars of claim disclosed no cause of action. A finding was made that the claim was totally without merit. A general civil restraint order was granted for two years.

Background

The third defendants obtained a warrant pursuant to section 135(1) Mental Health Act 1983 (as amended) at Camberwell Green Magistrates’ Court. The warrant was executed on 15 December 2017. Police officers attended, together with an approved mental health professional (AMHP) and a registered medical practitioner (RMP).

The claimant initially did not answer the door, but when he did, was unwilling to let anyone enter. The claimant was agitated and kept shouting that he was under surveillance, that his neighbours were spying on him and that he was in touch with Theresa May about what was going on.

The AMHP decided that the claimant needed to be sectioned pursuant to section 136 Mental Health Act 1983. When informed of this, the claimant stated that the officers would have to kill him before he would leave. The officers asked the claimant to leave voluntarily on three or four occasions, but he refused. The claimant was subsequently handcuffed and led to an ambulance. He was conveyed to South London & Maudsley hospital where he was detained for treatment.

Applications were made by all defendants to strike out the claim and / or for summary judgement on the basis that the claim did not show any reasonable grounds or any real prospect of success. In addition the fifth defendant pleaded that the proceedings were in any event a nullity on the basis that the claimant had failed to obtain the requisite prior permission to bring the proceedings under section 139(2) Mental Health Act 1983 and made a further application for a civil restraint order.

The decision

The first matter that had to be considered was whether the claimant had the necessary capacity to act on his own behalf. That issue had been raised by the first defendant. The court concluded that the claimant was able to understand how to make decisions generally and in the course of litigation. The court declined to have a litigation friend appointed.

Turning to the claim Sir Alistair MacDuff found that the particulars of claim were not set out with sufficient particularity and in any event were doomed to failure in that they did not show any defendant to have acted unlawfully or improperly: the warrant was properly obtained; Mr Gaisiance was properly taken to hospital; given proper treatment; and the taking to hospital was properly assisted by the police. The first defendant was only involved to the extent that the magistrates' court had issued the warrant. It had been issued on the basis of a proper application. It was clear that those who issued it were immune from suit. The officers of the fifth defendant had acted in obedience of the warrant and therefore were not liable under section 6 Constables Protection Act 1750.The claim was struck out against all the defendants. Having struck out the claim there was no merit in giving summary judgment also. Further Sir Alistair MacDuff did not determine the s.139 Mental Health Act 1983 point, holding that it was unnecessary to do so, but indicating that he suspected it was accurate to describe the proceedings as a nullity.

Sir Alistair MacDuff made a general civil restraint order against Mr Gaisiance. He stated that even had the fifth defendant not applied he would have made one of his own motion, having experience of other unmeritorious claims also brought by Mr Gaisiance. He was a regular litigator. He currently had in the pipeline a claim against two universities who had refused him admission to pursue a masters' degree course in law, when he did not satisfy their requirements. He also applied for a correspondence course and was not granted access. That claim had been struck out. A previous claim and judicial review against the fifth defendant has also been struck out as totally without merit. The court made a general civil restraint order against him for two years.

Comment

This case is a useful reminder to those defending claims against the police that as long as officers have acted in obedience with a warrant they will be protected from liability in accordance with section 6 Constables Protection Act 1750. An application to strike out should be considered at an early stage of the proceedings to avoid the legal costs escalating, particularly where such costs are likely to be unrecoverable.

In addition where there have been at least two decisions recorded as totally without merit against a claimant in the same or separate claims, thought should be given to making an application for a civil restraint order. It should be noted that any application for a general or extended civil restraint order needs to be heard before a judge of the court of appeal, a high court judge or a designated civil judge and this should be made plain on the application. If the order is granted, the claimant will then be required to get the courts permission before bringing future claims and will therefore prevent potential defendants incurring unnecessary legal costs defending unmeritorious claims made by a serial litigator.

Joanna Carty, Solicitor (acting for Metropolitan police)

If you have any question or would like to know more, please contact Joanna Carty, Solicitor, on 0116 242 8908 or email joanna.carty@weightmans.com.

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