LIMITATION: THE EXPIRY OF THE LIMITATION PERIOD AND THE USE OF SECTION 33 IN AN EXTREMELY SENSITIVE CASE

I have to admit I have hesitated before writing about the judgment of Mrs Justice Yip in Young v Downey [2019] EWHC 3508 (QB), it is an extremely sensitive case that has already been widely reported. However that part of the judgment that deals with limitation and section 33 of the Limitation Act 1980 is of significance to litigators and their clients.  An understanding of the judgment on these issues will be important to anyone advising those in similar situations.

“It seems to me that, as a matter of public policy, it would be highly undesirable to actively encourage civil claims for damages to be brought while the prospect of prosecution remains.”

THE CASE

The claimant’s father was a member of the Household Cavalry who was killed in a bomb explosion in July 1982.  The claimant brought an action against the defendant alleging that he was one of those responsible for the bombing. The court ordered that there be a split trial with liability and limitation to be considered first.

THE JUDGMENT ON LIMITATION

The judge found that the limitation period had expired, however she went on to exercise her discretion under Section 33 of the Limitation Act 1980.

1. 1. The claimant’s claim for damages for her own personal injury is governed by section 11 of the Limitation Act 1980. The claim in respect of the death of her father under the Fatal Accidents Act 1976 is covered by section 12 of the Limitation Act. Under both sections, the normal limitation period is three years from the date of injury / death. However, the claimant was a child and limitation did not start to run for her until she reached her majority. Therefore, the earliest limitation could have expired for her was January 1999. The Act provides that if the claimant’s “date of knowledge” is later than the date of injury / death, the three year period will run from that later date. Section 14 defines “date of knowledge”. For the purpose of this claim, the essential component is the date on which the claimant knew the identity of the defendant. It is the claimant’s case that her date of knowledge was 21 February 2014 when Sweeney J handed down his ruling staying the indictment. If that is right, her claim was brought in time. In the alternative, the claimant invites the Court to exercise its discretion to allow the claim to proceed pursuant to section 33 of the 1980 Act.

   2. Pursuant to section 13 of the 1980 Act, where a fatal accident claim is brought for the benefit of more than one dependant, the time limit under section 12 is applied separately for each of them. It is conceded on behalf of the claimant that the claim on behalf of her mother was brought outside the primary limitation period applicable to her. I am invited to allow her claim to proceed under section 33.

   3. Limitation having been raised in the Defence, the onus is on the claimant to establish her date of knowledge and/or that the discretion should be exercised in her favour.

   4. In his Defence, the defendant maintained that his name had been in the public domain as a suspect for over 30 years. He referred to a press report broadcast in 1983 and an article in the Sunday Times in 1984.

   5. The claimant’s evidence was that she did not know the defendant’s identity as a suspect for the bombing until after Sweeney J delivered his ruling in February 2014. I confess that I did not find the brief written evidence from the claimant wholly convincing. However, having heard her in person, I am satisfied that her evidence was truthful. I have seen evidence about the claimant’s psychiatric condition. In the course of the brief evidence she gave to me, I formed the impression that she was a vulnerable person. She said that no one had talked to her about the defendant while she was growing up. All she knew was that the IRA had killed her father. She did know that the defendant had been arrested in 2013 and that her mother had gone to court. However, her head was “away with the fairies” then and the first time she had understood about the defendant’s involvement in the death of her father was when her mother sat her down after the ruling and explained what had happened. I accept that account.

   6. I must have regard to section 14(3) of the Act. That section provides that “knowledge” for the purpose of section 14 includes knowledge which the claimant might reasonably have been expected to acquire from facts observable or ascertainable by her.

   7. There are a significant number of authorities dealing with the application of section 14. I do not intend to add to the list by embarking on lengthy consideration of the point, particularly in circumstances where I have not heard argument from the defendant and have had only limited submissions for the claimant. I note that it is unusual for consideration of date of knowledge to focus on knowledge of the identity of the defendant.

   8. Although I accept what the claimant told me, it does seem to me that she could have established the identity of the defendant had she actively enquired into whether there were known suspects. It is certainly difficult to maintain that her date of knowledge pursuant to section 14 was later than 2013. Bearing in mind it is for the claimant to establish her date of knowledge, I consider that it is appropriate to approach the issue of limitation on the basis that the primary limitation period had expired before the issue of proceedings. That leads me to consider whether I should exercise my discretion under section 33 to allow the claim to proceed.

   9. For reasons which I shall explain, I do not consider that the way in which I should exercise my discretion would be materially affected by precisely when the primary limitation period expired. I must, in any event, consider the exercise of discretion in relation to the claimant’s mother’s claim on the basis that the primary limitation period had long since expired for her. In the circumstances, I consider it unnecessary to make a finding as to the precise date on which the claimant is to be deemed to have had the requisite knowledge pursuant to section 14.

   10. Section 33 of the Limitation Act 1980 allows the court to disapply the provisions of sections 11 and 12 if it appears that it would be equitable to allow the action to proceed. In deciding whether to exercise that discretion, I am required by section 33(3) to have regard to all the circumstances of the case and in particular to the six factors set out in that sub-section. Paraphrasing, these are:

a) the length of, and the reasons for, the delay on the part of the claimant;

b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent than if the action had been brought within time;

c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the claimant for relevant information;

d) the duration of any disability of the claimant arising after the date of the accrual of the cause of action;

e) the extent to which the claimant acted promptly and reasonably once she had the relevant knowledge to bring an action;

f) the steps, if any taken by the claimant to obtain advice, including legal and expert advice and the nature of any such advice.

1. 1. Although all six matters set out in s.33(3) are important, since Parliament has singled them out for special mention, inevitably some will be of greater significance than others in any particular case. The court must take account of all the circumstances of the case to address the test set out in s.33(1), namely whether it would be equitable to allow the action to proceed having regard to the degree to which:

a) the claimant is prejudiced by the application of sections 11 and 12 of the Act; and

b) the defendant would be prejudiced by exercising the discretion to allow the claim to proceed.

1. 1. In Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992, the Master of the Rolls helpfully drew together the principles emerging from the numerous reported cases on section 33 [see para. 42]. Having had regard to the whole of that paragraph, I summarise the key principles in the context of this case:

i) The discretion is unfettered and requires the judge to look at the matter broadly.

ii) The matters set out in section 33(3) do not place a fetter on the discretion but are intended to focus attention on matters likely to call for evaluation and must be taken into consideration.

iii) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice, and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant.

iv) The burden on the claimant is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case.

v) While the ultimate burden is on a claimant to show that it would be inequitable to apply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant.

vi) The prospects of a fair trial are important. It is particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents.

vii) Subject to considerations of proportionality, the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim.

viii) The reason for delay is relevant and may affect the balancing exercise. If it has risen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay.

1. I shall assume in the defendant’s favour that the claimant could have been expected to acquire knowledge of the defendant’s identity around the time of reaching her majority so that the delay is lengthy. In her mother’s case, I will assume a date of knowledge in the 1980s and therefore an even lengthier delay.

2. The reasons for the delay are, in my judgment, wholly excusable and very relevant to the exercise of my discretion. The claimant did not contemplate bringing these civil proceedings until the collapse of the criminal proceedings. Until then, the claimant and other victims were entitled to hold the reasonable expectation that the state would seek to bring those responsible to justice through criminal prosecution. It would be unusual and surprising for relatives to mount a civil claim for damages in relation to an allegation of murder before any criminal proceedings had concluded. Such a claim would risk prejudicing a subsequent prosecution and might well be subject to an application for a stay. It seems to me that, as a matter of public policy, it would be highly undesirable to actively encourage civil claims for damages to be brought while the prospect of prosecution remains. The sensible course in a case of this nature is to give priority to action in the criminal jurisdiction. The claimant has made it clear that monetary compensation is not her primary motive for bringing this claim. Rather, she seeks justice for her father’s death. The need for her to do so through the civil jurisdiction only arose in 2014 when it was determined that the defendant’s criminal prosecution could not proceed.

3. I also bear in mind that the claimant’s vulnerability, while not amounting to a lack of capacity to bring proceedings, appears to have played its part in her not being aware of the identity of the defendant at an earlier stage.

4. The claimant has acted promptly since 2014. Her claim was brought within three years of the decision of Sweeney J. It has been prosecuted expeditiously and has come to trial in a reasonable period.

5. Having heard the evidence adduced at trial, I am satisfied that the evidence relied upon by the claimant is no less cogent than it would have been if the claim had been brought earlier. The essential evidence relied upon is the scientific evidence, including fingerprint evidence. The original evidence remains available and open to independent verification. The claimant has instructed experts to review the source material. I am entirely satisfied, having heard the expert evidence, that the cogency of that evidence is unaffected by the passage of time.

6. The defendant has called no evidence. He has offered no explanation for or challenge to the fingerprint evidence. He has not discharged the evidential burden on him of showing that his evidence has become less cogent because of the lapse of time. He has simply chosen not to participate in the trial. He has not demonstrated, or even claimed, any prejudice resulting from delay.

7. I consider that a fair trial has been possible. I have been able to consider and analyse the evidence relied upon by the claimant without feeling that the passage of time has made that task more difficult. I note that Sweeney J had no doubt that a fair trial in the criminal jurisdiction would have remained possible in 2014. But for the assurance provided to the defendant in error, he could have been tried for murder and faced a sentence of life imprisonment. To suggest that he should not have to face a claim for damages because of the passage of time would seem wholly inconsistent. The opportunity for the defendant to defend this claim has not been so diminished that he deserves to have the prospect of paying damages removed

8. As was said in Carroll, the burden on the claimant is not necessarily a heavy one. She has sufficiently explained the reasons for the delay and pointed to the prejudice she will suffer if she is not permitted to have her claim adjudicated upon in the civil jurisdiction. The defendant has not demonstrated any prejudice to him in allowing the claim to proceed outside the primary limitation period. If the claim is not allowed to proceed, the defendant will avoid a determination on the evidence within this jurisdiction, having avoided adjudication in the criminal court due to an error on the part of the state. Having regard to all the circumstances of the case, I do not believe that would be an equitable outcome. I therefore exercise the discretion under section 33 of the Limitation Act 1980 to disapply the provisions of sections 11 and 12 and allow this claim to proceed (including insofar as it is brought for the benefit of the claimant’s mother).