EXTENSIONS OF TIME UNDER THE HUMAN RIGHTS ACT: LATE APPLICATION REFUSED

In MLIA -v- The Chief Constable of Hampshire Police [2017] EWHC 292 (QB) Mr Justice Lavender refused the claimants’ applications for an extension of time to bring their actions under the Human Rights Act.

THE CASE

The claimants brought an action alleging breaches of their Article rights arising from the defendant’s failure to investigate abusive behaviour by a former partner of one the claimants. The acts complained of occurred between July 20014 and November 2005. The proceedings were issued 8 1/2 years later.  There had been a short agreement by the defendant not to take any further limitation point so the judge was concerned with the period to 12th May 2015.  The court held a trial on limitation and liability.

THE DECISION ON LIMITATION

    1. Subsections 7(1)(a) and (5) of the Human Rights Act 1998 provide as follows:
“(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, ….”

“(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 or tribunal considers equitable having regard to all the circumstances,”

    1. In this case, the acts complained of took place on or before 12 November 2005. The primary limitation period imposed by section 7(5)(a) expired on 12 November 2006. This action as commenced 8½ years later. The question for me is whether I consider the period to 12 May 2015 as equitable having regard to all the circumstances.
    2. The words of the Act confer a broad discretion. Lord Justice Thomas said as follows in Dunn v. Parole Board [2009] 1 WLR 728, at paragraphs 30-32:
“30. It was common ground in the submissions to us that a court should not add to or qualify or put any gloss upon the words “equitable having regard to all the circumstances” when considering the exercise of the discretion under section 7(5)(b) of the Human Rights Act 1998 (which I have set out at para 9 above). The words of the subsection meant exactly what they said and the court should not attempt to rewrite it.
31. I accept the submissions made. Parliament gave the court a wide discretion; I do not think it would be helpful to list the factors to be taken into account or to state which should have greater weight or lesser weight. The statute requires the court to consider all the circumstances in deciding whether it is equitable to allow a longer period within which to bring the claim. It is useful, I think, to refer to the observations of Earl Loreburn LC in the House of Lords in Hyman v Rose [1912] AC 623 in relation to the exercise of a very wide statutory discretion, even though given in the very different context of relief against forfeiture. He disagreed with the approach of the Court of Appeal which had thought it helpful to lay down some general principles according to which the discretion should be exercised. Earl Loreburn LC made it clear, at p 631, that where the court was given a wide discretion and directed to consider all the circumstances, it was not desirable to fetter that discretion by rules.
32. In my view, it is desirable to follow a similar approach in relation to the Human Rights Act 1998 and not to list the factors or to indicate which factor may be more important than another. It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.
    1. Smith LJ agreed at paragraph 43 and Lloyd LJ at paragraph 48. See also paragraph 75 of the judgment of Lord Dyson in Rabone v Pennine Care NHS Trust [2012] 2 AC 72. I have followed the approach proposed by Thomas LJ. I comment below on some of the factors which are relevant in this case. (I note that, although Thomas LJ said that it was not appropriate to list the factors which may be relevant, it has been held that it would not be inappropriate to consider the factors listed in section 33(3) of the Limitation Act 1980: see paragraph 25 of Rix LJ’s judgment in M v. Ministry of Justice [2009] EWCA Civ 419.)
(9)(a) The Burden of Proof
    1. The burden of proof is on the Claimants, but it has been said that this is not an issue which lends itself to a ready resolution by the application of the burden of proof: see A v. Essex County Council [2011] 1 AC 280, at paragraph 167, per Lord Kerr. As Rix LJ said in M (a minor) v. Ministry of Justice [2009] EWCA Civ 419, CA, at paragraph 23:
“The burden is that of the ordinary civil burden of proof where matters of fact are in issue and otherwise it is a burden of persuasion.”
(9)(b) The 12-month Limitation Period
    1. It is a relevant factor that the limitation period provided for in section 7(1)(a) is one year. As Rix LJ said in M (a minor) v. Ministry of Justice [2009] EWCA Civ 419, CA, at paragraph 30:
“The clear inference is that, in the case of such claims against public authorities, perhaps somewhat 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.”
    1. As Jay J said in Bedford v Bedfordshire County Council [2013] EWHC 1717 QB at [76]:
“… 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.”
    1. This policy is a factor to be considered in the present case.
(9)(c) The Length of the Delay
    1. As I have said, this action was commenced more than 8½ years after the expiry of the primary limitation period. Having regard, however, to the letters written by the Office of the Force’s Solicitor in August 2014, the relevant period of delay is that from November 2006 to July 2014, a period of 7½ years. That is a substantial period of delay in the context of a one year primary limitation period.
(9)(d) The Claimants
    1. The Claimants are adults. On the one hand, they have suffered throughout this period from the effects of AB’s conduct, which in the First Claimant’s case has been diagnosed as PTSD or similar. On the other hand, the First Claimant has been active throughout this period in pursuing many of the issues arising from or relating to their experience. The First Claimant has shown herself to be capable of pursuing various legal procedures, including: her claim before the Employment Tribunal; her application under the Data Protection Act; and her application to the Criminal Injuries Compensation Authority.
(9)(e) The Claimants’ Knowledge
    1. The Claimants knew from an early stage that they were unsatisfied with various aspects of the handling of their case. They knew of many of the grievances which they have raised as complaints in this action. For example:
(1) They knew that AB had not been convicted of uttering threats to kill: see the First Claimant’s letters of 12 February 2007 to the Chief Constable and of 9 August 2007 to the Prime Minister.

(2) They knew that AB had not been convicted of assault: see the First Claimant’s letter of 25 January 2008 to Harriet Harman QC MP and her email of 3 April 2008 to the Chief Constable.

(3) The Claimants knew from March 2008 that there were no records of risk assessments in their case.

(4) The First Claimant knew that she considered that there should have been an expert present to help her when she was interviewed on 31 July 2005: see her letter to Harriet Harman QC MP and the extracts from her book.

(5) The First Claimant knew how PC Churcher-Brown had conducted her interview and knew of her grievances about his demeanour and the nature of his questioning: see the extracts from her book.

    1. I was struck by the First Claimant’s statement in the witness box that “It’s hard to live every day with the fact that he never got anything for what he did to my body.” This is clearly a matter which is of great significance to the First Claimant. But it is a matter which had been known to her, and had been the subject of complaint by her, for at least 6 years before the letter before action was sent. It may be that she did not realise until 31 March 2014 that the CPS had not been involved in the decision taken on 10 August 2008. However, she knew from an early stage that she considered that the wrong decisions had been made in relation to AB’s prosecution.
    2. The Claimants also knew that they believed that their human rights had been violated: see, for example, the First Claimant’s letters to the Prime Minister and Harriet Harman QC MP and her emails to the Chief Constable and Peter Shand.
    3. The Claimants thus had sufficient knowledge to be able to seek advice on a potential claim against the Force (and/or the CPS) many years ago.
(9)(f) The Reasons for the Delay
    1. The First Claimant did not directly address the question why she did not either bring a claim, or seek advice about bringing a claim, against the Force (or the CPS, if she believed that they were responsible for the decision as to the charges to be brought against AB) a long time ago, for instance in 2006, 2007 or 2008 when she was making the complaints to which I have referred and alleging that her human rights had been violated.
    2. Instead, the First Claimant said that it was only after she received the letter of 2 July 2014 that:
“For the first time I understood that it all came down to what the police had done at the very start, when I first made my report in 2005 and that everything I had been chasing round in circles came back to that point in time.”
    1. Whilst I accept that an individual’s understanding of a matter such as this may improve as time goes on and different things come to light, I have already found that the Claimants had sufficient knowledge to be able to seek advice on a potential claim against the Force (and/or the CPS) many years ago. There was no evidence of any obstacle to their doing so. Indeed, in 2008 the First Claimant was actively taking steps to find out more about what the Force had done in her case. Hence her application under the Data Protection Act.
    2. I accept that the First Claimant was dealing with a number of matters in the years after 2005. There were issues about her and her mother’s current safety. There were issues about her health. There were her campaigns about AB’s deportation and about improving the lot of victims of domestic violence. But there were also her grievances about the Force and about the perceived breach of her human rights.
    3. In my judgment, it is relevant that the First Claimant took no steps to pursue her grievances with the CPS. It would be a consideration in her favour if the reason for her delay in commencing this action had been that she had been actively pursuing a defendant whom she reasonably, but mistakenly, thought was the appropriate defendant. But that is not what happened. There is no evidence of her contacting anyone from the CPS until 2014. When she did so, it did not take long for Mr. Montagu to explain that the CPS were not involved in the decision taken on 10 August 2008. (It is also relevant to note that, if she had taken things up with the CPS sooner, then this Court might have been better informed about the decisions taken by the CPS on and after 16 November 2005. I will return to that point.)
    4. Ms. Gerry suggested that one of the reasons why the Claimants did not bring this claim sooner may have been that the general understanding as to the effect of the Convention in such situations was different before 2009. (The alleged significance of this date derives from Green J’s statement, in paragraph 186 of his judgment in DSD, that by 2009 the law was being treated as settled.) However, there was no evidence to support this suggestion. The Claimants did not say that before 2009 they received advice, or reached an understanding from their own researches, that the effect of the Convention was such as discourage them from bringing this claim.
(9)(g) The Steps Taken by the Claimants to seek Legal Advice
    1. I have already dealt with the fact that the Claimants did not take any steps to obtain legal advice in relation to this claim until 2014. The First Claimant was certainly someone who was capable of seeking legal advice when she chose to do so.
(9)(h) The Consequences of the Delay
    1. I have already referred to the fact that the delay has made it more difficult for the witnesses to recall relevant events and to the fact that documents which would have been available earlier are no longer available.
    2. It is appropriate to consider the extent to which these matters have prejudiced either party or the ability of the Court to do justice between the parties. Unusually, I am making that assessment after there has been a trial of liability. On the whole, given my findings on disputed issues of fact, it could perhaps be said that the delay has, if anything, prejudiced the Claimants. However, there remain a number of gaps in the documentary evidence. Ms. Gerry was right to say that one should not exaggerate the size of those gaps, especially in a police case, where there are established procedures for keeping records, and especially in a case where one has what appears to be a full set of the records from the RMS
    3. Equally, however, one cannot speculate as to what was in the documents which are known to be missing. Two important dates in this case are 10 August 2005, when AB was interviewed and cautioned, and 16 November 2005, when AB was interviewed and his case referred to the CPS. On neither of those occasions was he charged with uttering threats to kill or assaulting the First Claimant. It is unsatisfactory that this action was commenced at a time when relevant documents generated on those dates are no longer available. One cannot say for certain that these documents would have helped or hindered either party’s case, because that would involve speculating as to what they contained. What is certain is that this is the sort of situation which limitation periods are intended to avoid.
    4. Another unusual feature of this case is that the Force felt able to investigate the Claimants’ complaints, to uphold them and to apologise to the Claimants, even though the complaints were made in November 2013, 8 years after the matters complained of. However, the investigation was not one which led to the production of any witness statements or other evidence. Ms. Gerry accepted that the letters of 7 March and 2 July 2014 have no legal effect so far as this action is concerned.
(9)(i) The Force’s Conduct
    1. It was not suggested that the Force was responsible for the delay in bringing this action. The Claimants continued to have some issues with the Force after AB’s release in respect of their ongoing protection. The First Claimant’s complaint in 2013 was partly concerned with the conduct of an individual officer.
    2. On the other hand, a number of the Force’s officers tried to help the Claimants after 12 November 2005. The First Claimant praised DS Symes and DC Borsley. The Force responded to her request under the Data Protection Act. The First Claimant appreciated her discussions with Chief Inspector Heydari. The Force investigated her complaint, upheld it and apologised to her.
(9)(j) The Merits of the Claimants’ Case
    1. The fact that the Force upheld the First Claimant’s complaints and apologised to her demonstrates that there was substance to her complaints. That is not to say, however, to say that the Force’s conduct was such as to be incompatible with Articles 3, 8 or 14. I will set out my views on that issue shortly. In summary, I do not consider that the Claimants have established that there was a strong case under the Human Rights Act. I am not satisfied that there was a breach of any of these Articles in the present case.
(9)(k) The Effect of the Limitation Defence
    1. The effect of upholding a successful limitation defence is that the Claimants’ claim is defeated. Often this happens before a trial, and so there is no adjudication on the merits of that claim. In the present case there has been trial. It was clear that one of the benefits for the Claimants in the present case of having a trial, quite apart from the hope that that their claims would succeed, was that it meant that they felt that their voices had been heard. The First Claimant told me that she felt that this was the first time that her voice had been heard in the legal environment.
(9)(l) Limitation: Summary
  1. Looking at the matter broadly, and attaching such weight as is appropriate to each of these factors in the present case, it would not in my judgment be equitable having regard to all the circumstances to extend the limitation period to the extent sought by the Claimants. I will therefore dismiss this action.

RELATED POSTS

RELATED POSTS ON LIMITATION