LIMITATION, EXTENSIONS AND THE HUMAN RIGHTS ACT: COURT OF APPEAL SAYS NO

January 26, 2017 · by · in Appeals, Extensions of time, Limitation

For the second time within a week we have a case where the courts consider the discretion to extend time under s.7(5)(a) of the Human Rights Act 1998.  In London Borough of Hackney -v- Williams [2017] EWCA Civ 26 the Court of Appeal stated that it would have (probably) overturned the trial judge’s decision where he granted an extension of time under s.7(5)(a).  (The point did not arise for decision because the council’s substantive appeal was allowed.)

“…the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.”

THE CASE

The claimants brought an action alleging breach of statutory duty and breach of the Human Rights Act 1998. Their claim succeeded on  breach of statutory duty, the judge allowed an extension of time to the Human Rights Act claim and awarded damages. The local authority appealed. The Court of Appeal overturned the finding of breach of statutory duty. It then went on to consider the judge’s decision to extend time. (The time for bringing a claim under the Act is one year.  The proceedings were brought five years after the events).

“Limitation
    1. Although s. 7(5)(a) of the 1998 Act prescribes a period of one year for proceedings to be commenced, beginning with the date on which the act complained of took place, s. 7(5)(b) permits the extension of that year to such longer period as the court or tribunal considers equitable having regard to all the circumstances. Sir Robert considered it equitable to extend time on the basis that the final decision of the Local Government Ombudsman was issued less than three months before proceedings were commenced and it was “reasonable for [the Williams] to await the final outcome of the process before issuing these proceedings”. He explained:

“One of the complaints considered was the alleged failure to return the children when the parents ‘withdrew their consent’ referred to as ‘complaint 3′ within the Ombudsman’s report. The Ombudsman’s conclusion was that [Hackney] had been at fault in failing to record the [parents’] consent and in failing to explain the process to them. While this outcome did not entirely satisfy the [parents], there was a sufficient overlap with the subject matter of this claim for it to have been justifiable to await the Ombudsman’s final decision. Furthermore, the continuation of the complaints process meant that [Hackney] had a continuous reason to maintain their records and indeed recollections of this case.”

    1. Sir Robert accepted that recollection will have been hampered “to some extent” by the passage of time but observed that it had been very largely possible to assess the merits of the claim by reference to Hackney’s documentation. Finally, he considered the evidence of breach sufficiently cogent to justify the claim being brought out of time; “their entitlement to a remedy outweighs such prejudice as may exist”.
    2. On behalf of Hackney, it is argued that there was good reason for not encouraging extensions of statutory time limits because of a complaint to the Local Government Ombudsman because additional delays were inconsistent with the purpose of a limitation period in the first place. They were particularly difficult for local authorities which were involved in the costly and time consuming process created by the Ombudsman and, given that the process is free and easy to initiate, there was no incentive to do otherwise than pursue it. The time taken was outside the local authority’s control and given that the investigating officers were not necessarily legally trained, they could not resolve complex issues of fact or law. Without the powers available in litigation or the power to award remedies available to the court, and without being binding, there was no justification for concluding that the outcome would achieve closure. All these features were evident in this case which was prolonged by repeated complaints and judicial review.
    3. Furthermore, it is submitted that there was, in fact, prejudice in this case. By the time the litigation had been commenced, disclosure from Mr Williams’ then solicitors produced very little in relation to communications with the police and nothing from the police (all of which were highly material to the issues in the case). Mrs Williams’ original solicitors’ file was not located and therefore nothing from them was available. Further, there are some issues as to Sir Robert’s findings on the oral evidence.
    4. On behalf of Mr and Mrs Williams, it is argued that Sir Robert was perfectly entitled to exercise his discretion in the way that he did. Furthermore, Ms Cooper referred to R (Anufrijeva) v London Borough of Southwark [2003] EWCA Civ 1406 as authority for the proposition (in the context of judicial review) that where damages are sought under the 1998 Act, a complaint to the LGO should be preferred to litigation, at least in the first instance.
    5. That decision was the first to be conce
      rned with the power to award damages under the 1998 Act and, in the part of the judgment to which reference has been made, the disproportionate nature of the costs involved in pursuing what would be comparatively modest damages. The full citation (from which Ms Cooper extracts only part) is:

“80. The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.

81. What can be done to avoid a repetition of this situation in future proceedings? Based on the experience available at present we suggest as follows in relation to proceedings which include a claim for damages for maladministration under the HRA:

i) The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.

ii) A claim for damages alone cannot be brought by judicial review (Part 54. 3(2)) but in this case the proceedings should still be brought in the Administrative Court by an ordinary claim.

iii) Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the PCA or LGO at least in the first instance.  The complaint procedures of the PCA and the LGO are designed to deal economically (the claimant pays no costs and does not require a lawyer) and expeditiously with claims for compensation for maladministration.  (From inquiries the court has made it is apparent that the time scale of resolving complaints compares favourably with that of litigation.)

iv) If there is a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration given to deferring permission for the damages claim, adjourning or staying that claim until use has been made of ADR, whether by a reference to a mediator or an ombudsman or otherwise, or remitting that claim to a district judge or master if it cannot be dismissed summarily on grounds that in any event an award of damages is not required to achieve just satisfaction.

v) It is hoped that with the assistance of this judgment, in future claims that have to be determined by the courts can be determined by the appropriate level of judge in a summary manner by the judge reading the relevant evidence.  The citing of more than three authorities should be justified and the hearing should be limited to half a day except in exceptional circumstances.

vi) There are no doubt other ways in which the proportionate resolution of this type of claim for damages can be achieved.  We encourage their use and do not   intend to be prescriptive.  What we want to avoid is any repetition of what has   happened in the court below in relation to each of these appeals and before us, when we have been deluged with extensive written and oral arguments and citation from numerous lever arch files crammed to overflowing with authorities.  The exercise that has taken place may be justifiable on one occasion but it will be difficult to justify again.

    1. This was not the course followed in this case and I have little doubt that the costs incurred in the various proceedings upon which Mr and Mrs Williams have embarked far exceeds whatever sum might have been awarded as damages or compensation. Far from encouraging complaints always first to be pursued through the Ombudsman, the court was encouraging a proportionate approach to cases of this sort. Bearing in mind that all but one of the complaints brought by Mr and Mrs Williams were rejected and that I, for my part, would also reject the claim under the 1998 Act for breach of Article 8 rights flowing from breach of s. 20 of the 1989 Act, the same can be said in this case. Certainly, once Mr and Mrs Williams found it necessary to proceed by way of judicial review in the Ombudsman process, in my view, there was no justification for not pursuing whatever relief they sought by way of civil process.
    2. As for the approach to the exercise of discretion, Sir Robert correctly referred to the decision of the Supreme Court in Rabone v Pennine NHS Trust [2012] UKSC 1 which (per Lord Dyson at [75]), identifies the principles which should guide the court in these terms:
“The relevant principles are not in dispute. The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However, I agree with what the Court of Appeal said in Dunn v Parole Board [2009] 1 WLR 728 , paras 31, 43 and 48 that the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.”
    1. It is right to add that Mr and Mrs Williams were also pursuing claims in misfeasance and negligence, the limitation period for which is 6 years. Thus, whatever prejudice was suffered in relation to the 1998 Act claim was also unavoidable in the other claims. In fact, of course, these claims were dismissed and had the 1998 Act claim stood on its own (as, in fact, it did), for my part, I would not have extended limitation by nearly five years not only because I do not accept that the approach adopted by Mr and Mrs Williams (to pursue the LGO through numerous challenges and judicial review) although entirely within their rights, should have justified an extension of time of this length for civil proceedings. Further, I would have accepted that there was prejudice in the unavailability of evidence from the solicitors and the police in relation to events touching upon the question of the bail conditions. Recognising, however, that the exercise of discretion fell to Sir Robert as the trial judge, given my findings on the s. 20 issue (which means that the action fails in any event), it is not necessary to express a concluded view about whether it was so far outside the ambit of his discretion that it ought to be reversed.
Damages
    1. A further ground of appeal arises as to the quantum of the claim if it was established. The approach to damages is identified in R (Anufrijeva) v London Borough of Southwark to which I have already referred. Sir Robert was also referred to Re H (A Child: Breach of Convention Rights: Damages) [2014] EWHC 3563, TP and KM [2001] 1 FLR 549, PC and S v United Kingdom [2002] 2 FLR 631, Venema v Netherlands [2003] 1 FCR 153, AD v United Kingdom [2010] ECHR 28680/06. Given that the question is now academic in this case, I do not consider it appropriate to embark on an analysis either of the decisions or quantum not least because a decision would first have to be made as to the precise nature and extent of any breach of Article 8. Suffice to say that, bearing in mind that it was not in issue that the children were rightly taken from their parents’ home on 5 July 2007, that by reason of the bail conditions, were prohibited unsupervised contact with them in any event and that it was open to the parents to apply to the court to vary those conditions but they failed to do so (for whatever reason), had the matter fallen for decision, I would not have awarded a sum even approaching £10,000 to each of Mr and Mrs Williams. Damages in cases such as these will have to be considered in greater detail should an appropriate case arise.
Conclusion
  1. Although I commend Sir Robert Francis Q.C. for the careful consideration which he gave to the issues in this case, I respectfully disagree with his conclusions for the reasons which I have expressed. In my judgment, along with all the other claims, the claim brought under Article 6 of the 1998 Act for breach of s. 20 of the 1989 Act should have been dismissed and I would allow the appeal accordingly.

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