LIMITATION, DISABILITY AND THE HUMAN RIGHTS ACT: COURT REFUSES TO EXTEND TIME: KEY DUTY ON LEGAL ADVISERS

January 23, 2017 · by · in Civil Procedure, Limitation

In AP -v- Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) Mr Justice King considered issues relating to limitation, disability and a claim under the Human Rights Act.

KEY POINTS

  • The fact that a party lacks capacity does not prevent time running for a claim under the Human Rights Act.
  • The fact that a party lacks capacity is not a determinitive, or necessarily a major, factor when the court is considering extending time under the Act.
  • The fact that a party had, throughout the relevant period, access to specialised solicitors who knew about the Act and relevant limitation period was an important factor.
  • The courts would not import the provisions of s.33 of the Limitation Act 1980 into an application for an extension of time under the Human Rights Act.

THE CLAIM

The claimant was a protected party, he lacked capacity. He wanted to bring an action under Articles 5 and 8 of the European Convention arguing that he was unlawfully deprived of his liberty between February 2011 and  August 2013 when he was removed from the care of his mother and placed in a respite home.

THE RELEVANT LIMITATION PERIOD

The judge considered the provisions of the Human Rights Act 1998:

    1. Section 7(5) of the Act provides:

‘(5) Proceedings under subsection 1(a) must be brought before the end of:

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question’

THE ACTION WAS OUT OF TIME

It was common ground that the fact that the claimant lacked capacity did not stop the limitation period running under the Act.  The proceedings were issued in February 2016, outside the one year period.  The issue for the court was whether it should exercise its discretion under 7(5)(b).  The test here is wholly different to that under Section 33 of the Limitation Act 1980.

THE JUDGMENT ON THE GRANT OF AN EXTENSION

The judge considered the competing arguments,but refused to grant an extension under 7(5)(b):-

    1. I turn to my conclusions.
The principles governing the grant of an extension under section 7
    1. I was referred to a number of authorities on the approach to be adopted by the court when exercising its discretion under s 7(5), including Dunn v Parole Board [2008] EWCA Civ 374 (in particular Thomas LJ (as he then was) at paragraphs 30 – 33) and in Rabone v Pennine Care NHS Foundation Trust (Inquest and others intervening) [2012] UKSC 2, [2012] 2 AC 72 (in particular Lord Dyson JSC at paragraph 75). It is for the court to determine what is ‘equitable in all the circumstances’. The discretion conferred on the court by the section is expressed in broad terms, and is a wide one.
    2. Unlike section 33 of the Limitation Act 1980 governing the discretion conferred on the court to disapply the primary limitation under that Act referable to personal injury claims brought in a common law action for negligence or breach of duty (see section 33(1) and section 33(3)), section 7(5) does not identify the factors which the court should take into account. The section 33 factors include the competing degree of prejudice as between the parties if an extension is or is not granted; the length and reasons for the Claimant’s delay; the effect of delay on the cogency of the evidence likely to be adduced by the parties; the conduct of the Defendant after the cause of claim arose; the extent to which the Claimant acted promptly and reasonably once he knew the Defendant’s acts or omissions might be capable of giving rise to an action for damages; the steps if any taken by the Claimant to obtain legal or other expert advice and the nature of the advice received.
    3. It is now well established that although it would not be inappropriate for a court when considering its discretion under section 7(5) to have regard to the section 33 type factors if it considers proper to do so in the circumstances of the particular case, section 7(5), given its broad wording, is not to be interpreted as if it contained the language of section 33. See Lord Dyson in Rabone at paragraph 75. It is for the court to examine all the relevant factors in the circumstances of the case and then decide whether it is equitable to provide for a longer period. There is no predetermined list of relevant factors although proportionality will generally be taken into account. The weight to be given to any particular factor is a matter for the particular court having regard to the facts and circumstances of the particular case. There is no pre-ordained principle as to the weight to be given to any particular factor. See Thomas LJ in Dunn at paragraph 32. The first instance decisions to which I was referred (such as Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133(QB); Bedford v Bedfordshire County Council [2013] EWHC 1717 (QB)) were properly put before only as examples of how the court reached its decision on facts of the particular case, highlighting the factors the court thought of greatest weight on the particular facts. I treat them in that way.
The factor of lack of capacity
    1. I reject the Claimant’s submission that section 7(5) should be read as creating a rebuttable presumption in favour of the equity of the grant of an extension absent exceptional circumstances, in the case of a Claimant who lacks capacity and who by reason thereof has to depend on others in order to make a claim under section 7 seeking vindication of his human rights. The wording of section 7(5) does not allow for such a presumption. As I have indicated, the words confer a wide discretion upon the court which is not to be fettered by any such prescriptive principle.
    2. Mr Karim may no longer be pursuing the submission that section 7(5) is displaced altogether by section 28 of the Limitation Act 1980 but his rebuttable presumption argument using section 28 as ‘relevant comparator’ falls foul of the same point – namely that Parliament in providing for a limitation period in respect of claims under the Human Rights Act has chosen not to provide for any exception by analogy with section 28 in favour of a Claimant under a disability.
    3. The authorities do not provide any support for carving out a ‘disability’ exception or a rebuttable presumption restricting the operation of section 7 in this way by acting upon the comparison with the limitation position in common law claims. In M (T) v Ministry of Justice [2009] EWCA Civ 419 the fact the Claimant was a child litigating through a litigation friend was not regarded as anything other than as a factor to be taken into account on deciding whether an extension was equitable. Notwithstanding that time would not have been running against the Claimant had the claim been brought under the Fatal Accidents Act or in common law negligence, the Court of Appeal upheld the judge’s refusal to grant the small child an extension.
    4. In MT, Rix LJ at paragraph 30 highlighted that section 7 made no exception with regards to a child Claimant as well as noting the policy reasons for Parliament adopting a much tighter limitation period in HRA claims against public authorities compared with common claims in tort and contract governed by the Limitation Act 1980:

‘Thirdly Mr Simblet submitted that insufficient weight was given to the fact time would not have been running against the Claimant if his claim had been under the Fatal Accidents Act or in negligence. In my judgment this submission is of no value whatsoever. Plainly the judge expressly had in mind both the position under the Limitation Act and the fact that the HRA made no exception for a minor….In fact if anything, the judge made quite light of the fact that it is a striking feature of section 7 that it provides a limitation period of only one year to be contrasted strongly with the much longer period allowed under the Limitation Act, and indeed makes no allowance in respect of a minor. The clear inference is that, in the case of such claims against public authorities, perhaps reflecting the tight-three month time limit for the purposes of judicial review proceedings, it was considered right that there should be really quite tight limitation periods. The Judge made little of that factor but in my judgment could well have made more.’

The weight to be given to the ‘lack of capacity’ factor in this case
    1. In my judgment the factor that the Claimant is under a disability lacking capacity and hence dependent on others to bring a claim under the HRA to vindicate his ECHR human rights, is a factor which obviously must go into the balance when determining where the equity of the situation lies in considering whether to grant an extension of time under section 7(5) but the weight to be given to this factor must depend on the particulars facts of the given case. It cannot automatically qualify as one to which decisive or even substantial weight must be given, as contended for by Mr Karim.
    2. In my judgment the weight to be given to this ‘dependency’ factor will vary according in particular to when the Claimant first had someone acting on his behalf and looking after his human rights interests, and when that person came into, or was in a position to come into, possession of knowledge of the essential facts, and the expertise held by that person in identifying human rights claims.
    3. What stands out on any analysis of the present facts is that this Claimant has been continuously represented by his family (his Mother, his Brother), and by a firm of specialist solicitors (Messrs Stephensons), specialist in human rights claims, to whom the Claimant’s family (his Mother and His Brother) had access, since at least September 2012. I accept Mr Dulson’s analysis of the history of the solicitors’ involvement on behalf of the Claimant which I have set out in some detail above. Even before September 2012 the Claimant had had the benefit of an appointed Independent Mental Capacity Advocate (the IMCA) who had written suggesting an application to the Court of Protection as long back as August 2011. I have been told and I have no reason to doubt that IMCAs can and do act as Litigation Friends in legal claims which need to be brought on behalf of incapacitated individuals. They can and do instruct solicitors and bring claims as Litigation friend.
    4. On any view in my judgment those looking after the Claimant’s interests with access to specialist legal expertise had knowledge of what they needed to know to bring a claim, that is the essential facts giving rise to the present claim, at the very latest by the January 2014 or February 2014 (the publication of the ISW report heavily relied on by Mr Karim in support of the merits of the pleaded particulars of claim), but arguably before then, namely as far back as September 2012 (the first involvement of the solicitors Stephensons) or even September 2011 (the IMCA ‘human rights’ letter).
    5. In these circumstances I cannot give the Claimant’s lack of capacity the decisive weight which Mr Karim urges upon me. The knowledge of the Claimant’s representatives, his family and his solicitors, within the limitation period, and their promptness or lack of promptness with such knowledge, in pursuing his human rights claims, and their conduct or lack of conduct in taking steps to protect the Claimant’s interests within the limitation period, such as by the issue of a protective writ, are not to be discounted or given little or no weight, as Mr Karim suggested, by reason of the Claimant’s lack of capacity. This was not the approach of the Court of Appeal in MT or of Jay J. in Bedford.
The length of the delay since the expiry of the limitation period and the factor of the policy behind section 7(5) primary limitation period
    1. I have already set out the observations of Rix LJ in M(LT). There are other authorities which make the same point as to the underlying reason for the shortness of the primary limitation period in claims against public authorities under the HRA. See for example Lord Brown in Chief Constable of Hertfordshire Police v Van Colle [2008] UKHL 50; [2009] 1 AC 225 at paragraph 138. I concur with the views stated by Jay J. in Bedford at paragraph 76 that the court must take into account that the primary limitation period under the HRA is one year, not three years, and it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event.
    2. In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. The claim sought to be brought relates to events which ended in August 2013, some two and a half years before the claim was issued, and to earlier events going back another 3 (those in 2012) and 4 years (those in 2011). In these circumstances I have no doubt the court must look critically at the explanations given for the delay set against these policy considerations to which I have referred. And delay is always a relevant consideration whether or not there is actual trial prejudice to the Defendant (see again Dunn at paragraph 33).
    3. However I accept also what Jay J said further into his judgment at paragraph 79 that the burden of persuasion which is on the Claimant it is not necessarily a heavy one and there is no burden upon him to establish lack of prejudice in the Defendant. I prefer to approach the question of what is equitable without being reliant on questions of burden but by conducting the exercise, described by Thomas LJ in Dunn, of examining all the relevant factors in the circumstances of this case.
    4. I accept that a relevant consideration on the limitation issue can be the court’s assessment of the broad merits and value of the underlying claim. (see AB v MoD [2013] AC 78). I have already set out the rival contentions in this regard including the question whether the Claimant has or has not already been provided with or offered ‘just satisfaction’ and can or cannot claim to be a victim for the purposes of his claim under s 7, and including the question of the likely quantum of damages even if the claim were successful, which includes the question of whether the Claimant’s claim to substantial damages will fall foul of the Bostridge principle. These are all issues going in part to the question of the proportionality of allowing the claim to proceed. Mr Auburn referred me to A. v Essex CC [2010] UKSC 33; [2011] 1 AC 280 where it was held that it was highly unlikely that any significant sum would have been awarded had the action been brought within time and been successful, leading the court to conclude it would be disproportionate to grant an extension under s (7)(5). (Lord Kerr at paragraphs 168-169 with whom the other majority Justices agreed). Lord Philips (at paragraph 90) referred to the undesirability of permitting the Claimant an extension of time to pursue a case which even if successful, would resolve no issue of principle and would be unlikely to sound in significant damages.
The court’s conclusions on whether to grant an extension under section 7(5).
    1. Having considered all relevant factors, I have no doubt that it would not be equitable to grant an extension of time in the circumstances of this particular case.
    2. I have reached this conclusion for the following reasons.
    3. The delay in pursuing this claim following the expiry of the limitation period has been considerable. As I have said, the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. The claim sought to be brought, relates to events which ended in August 2013, some two and a half years before the claim was issued, and to earlier events going back another 3 (those in 2012) and 4 years (those in 2011).
    4. Equally the delay in pursuing this claim before the expiry of the limitation period has been considerable. I agree with the Defendant’s submission that that the Claimant’s family and legal advisors have known of the essential facts giving rise to this human rights claim for a number of years.
    5. I repeat my above findings that this Claimant has been more or less continuously represented by his family (his Mother, his Brother), and by a firm of specialist solicitors (Messrs Stephensons), specialist in human rights claims, to whom the Claimant’s family (his Mother and his Brother) have had access, since at least September 2012. Even before September 2012 the Claimant had had the benefit of an appointed Independent Mental Capacity Advocate (the IMCA) who had written suggesting an application to the Court of Protection as long back as August 2011.
    6. I repeat my findings that those looking after the Claimant’s interests with access to specialist legal expertise, had knowledge of what they needed to know to bring a claim, that is the essential facts giving rise to the present claim, at the very latest by January or February 2014 (the publication of the ISW report heavily relied on by Mr Karim in support of the merits of the pleaded particulars of claim) but arguably were in a like position before then, namely as far back as September 2012 (the first involvement of the solicitors Stephensons) or even September 2011 (the IMCA ‘human rights’ letter).
    7. I agree with Mr Auburn that it is inexplicable that the Claimant’s specialist solicitors with knowledge of the short primary limitation period under section 7, took no steps to protect the position of the Claimant by for example issuing a protective writ before or just after the expiry of the limitation period or by advising the Claimant’s next friend or nearest relative to do so. It is to be noted moreover that no reply to the Defendant’s letter of the 18th of February 2014 was sent until the 20th of August 2014 (the letter of claim) and the 11th of September 2014 (rejection of offer) even though it is said the Claimant’s brother sought the advice of the solicitors on making a claim, in April 2014. The limitation period of course had expired by the 13th of August 2014.
    8. The delay thereafter in not issuing the claim until February 2016 is not explained by any explanations that would in my judgment make it equitable to extend time.
    9. The only explanations are those set out in the Claimant’s chronology. Even if the without prejudice correspondence concerning offer and counter offers were relevant, this accounted for at most a period of 6 months. But in any event as I have already stated there has been no submission made to me that the Defendant in some way misled the Claimant or those representing him into a false sense of security as regards limitation. There is nothing identified in the conduct of the Defendant which in my judgment would make it equitable to extend time. As Rix LJ said in M(LT) at paragraph 29 it is not ultimately for a Defendant to lead a Claimant to the water of his limitation problem. This is essentially a matter for the Claimant to look after for himself. The matters relating to the obtaining of legal aid or the time taken to draft pleadings cannot in themselves make it equitable to extend time to the length required in this case. Legal aid matters are ones which in principle should be accommodated within the primary limitation period. It is to be noted, by analogy, that delay in the grant of legal aid is not normally a factor which will persuade a court to extend the 3 month issue period for the purposes of a judicial review claim. See the Queen (on the application of Kigen and Another) v SSHD[2015] EWCA Civ 1286.
    10. I agree with Mr Auburn that the unfairness and prejudice to the Defendant if this were allowed to proceed after such a delay is very real. I have no doubt that the issue of this claim did come as bolt out of the blue to the Defendant given the last communication from the Claimant’s solicitors had been a year before, and given their history of repeated threats of legal action which never materialised. It will inevitably be a huge administrative burden on the Defendant if it is now compelled to meet this claim and the costs are likely to be substantial. Moreover I accept for the reasons given by Mr Dulson, that the Defendant will be at a distinct trial disadvantage if it now has to try and garner the necessary evidence to meet this claim in a trial which is likely to occur in 2017 or 2018, some, at least some 4 – 6 years after the relevant events. I see no reason to doubt the genuineness of the difficulties to which Mr Dulson deposed, as regards tracing witnesses, reviving memories, and locating documents especially electronic ones.
Prejudice and injustice to the Claimant
    1. Set against the inequity from the standpoint of the Defendant in the grant of an extension of time in this case, I cannot find any countervailing equity of any strength in favour of the Claimant being made a grant.
    2. As I have already indicated, Mr Karim spoke of the prejudice to the Claimant if he is not able to pursue this claim and the injustice to him inherent in such loss of claim given his dependency on others to bring his claim. In my judgement there is a distinction to be drawn on the facts and circumstances of this case, between prejudice and injustice. The Claimant will undoubtedly suffer prejudice in not being able to purse his claim whatever view is taken of its underlying merits. But that is inherent in the nature of the limitation beast. What is more crucial is to consider the question of justice or fairness as between the parties. As Rix LJ again said in M(LT) at paragraph 32:

‘…in the first place it is of course inherent in all such limitation discretion rulings that the courts know that what the Claimant is facing is the loss of his claim. That is inherent in the whole exercise. In any event the Judge brought himself back to the question of fairness to both parties…’.

    1. In this case for the reasons I have already identified I do not consider that the Claimant, notwithstanding his lack of capacity, will suffer any injustice (as distinct from prejudice) in being denied the right to bring this claim so long after the facts giving rise to the claim became crystallised (August 2013) and so long after the primary limitation period expired (18 months) expired. Through those representing him he had the opportunity to bring his claim within time or shortly thereafter, and through them to have his position protected if necessary by the issuing of a protective writ. That he did not do so has to be laid squarely at the door of those looking after his interests and no adequate reason in my judgment has been put forward for their failures, sufficient to make it equitable as between the Claimant and the Defendant public authority to grant him an extension of time to bring his human rights claim against them (the Defendant).
The underlying merits of the claim
    1. For the purposes of the conclusions I have reached as to where the equity of the situation lies on the limitation issue, I have been prepared to assume that the Claimant’s underlying claim is both a good one and a valuable one. In these circumstances I have not found it necessary to determine the question which has so deeply divided the parties as to the underlying merits of the underlying claim and as to the likelihood that the Claimant would have been granted any significant remedy had he brought his claim in time and succeeded.
Final conclusion
  1. For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant. I do not consider it would be equitable to do so in the circumstances of this case.

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