SECTION 33 DISCRETION CONSIDERED IN THE CONTEXT OF A SEXUAL ABUSE CLAIM

April 1, 2021 · by · in Limitation, Personal Injury

In  SKX v Manchester City Council [2021] EWHC 782 (QB) Mr Justice Cavanagh considered the exercise of the discretion under Section 33 in the context of a claim for sexual abuse.  The context was somewhat unusual in that the judge found that the defendant was not vicariously liable for the acts that had been committed. Nevertheless it was important that the limitation issue was considered.

“33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a)the provisions of section 11 [F1or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.”

 

THE CASE

The claimant is now aged 47. He brought proceedings following his being abused in a care home in 1989.  The defendant admitted that the sexual abuse took place, however it denied vicarious liability for the acts carried out. The judge found that the defendant was not vicariously liable.  The judge then considered the question of limitation.  Proceedings were issued outside the limitation period and the claimant had made an application under Section 33 of the Limitation Act 1980.

THE JUDGMENT ON THE SECTION 33 DISCRETION

The judge found that, despite dismissing the case, it was appropriate to consider the Section 33 issue. He found that he would have exercised that discretion if vicarious liability had been established.
The limitation issue
    1. The claimant submits that I should exercise my discretion under section 33 of the Limitation Act 1980 to permit the claim to proceed, notwithstanding that it was issued outside the primary limitation period.
    1. The defendant submitted that, if I were to find in the defendant’s favour on the substantive points of law, no purpose would be served by disapplying the limitation period so as to mean that the claim is in time. This is because, whatever view I take on the limitation issue, the claim must be dismissed.
    1. Mr Ford QC further submitted that, even if I were minded to find in the claimant’s favour on either of the substantive issues, or I thought that it was necessary to investigate the facts in greater detail in order to reach a view, I should still decline to exercise my discretion under section 33 of the Limitation Act 1980 so as to bring the claim in time. This is primarily because the defendant is placed at a disadvantage because the effluxion of time has hampered the defendant’s ability to obtain relevant evidence.
Is there any point in extending time?
    1. The defendant’s main point is that, since the claimant has lost anyway, there is no point in extending time. It will not help the claimant.
    1. It is, of course, right that, even if I extend time, the claim will still be dismissed. However, it is possible that this case may go further, and an appellate court may reach a different conclusion on one or both of the substantive issues from the conclusions that I have reached. If that were to happen, then it would matter to the claimant that I had extended time. Also, I have heard full argument on the limitation point, and so I will deal with it, albeit fairly briefly.
The legislative framework
    1. It is now settled that an action for deliberately inflicted personal injury is subject to the limitation period laid down by section 11 of the Limitation Act 1980. Section 11 provides, in relevant part:

“(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) … the period applicable is three years from—

(i) the date on which the cause of action accrued; or

(ii) the date of knowledge (if later) of the person injured.”

    1. In the present case, it is common ground that there are no knowledge issues.
    1. Where a claimant was under the age of 18 when the cause of action accrued, and there are no knowledge issues, the three-year primary limitation period runs from the date of the claimant’s 18th birthday, rather than from the date on which the cause of action accrued, if earlier (Limitation Act 1980, section 28(1) and 28(6)).
    1. In the present case, since the cause of action accrued before the claimant’s 18th birthday, the three-year primary limitation period expired three years after that date, i.e. on his 21st birthday. The claimant’s 21st birthday was 11 February 1995.
    1. The claim herein was presented on 23 February 2017. This was 22 years after the primary limitation period expired, and nearly 28 years after the events to which this claim relates took place.
    1. The Court’s discretion to extend time is set out in the Limitation Act 1980, section 33. This provides, in relevant part:

“33. Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a)the provisions of section 11 …. of this Act prejudice the plaintiff or any person whom he represents; and

(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

….

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

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

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ….;

(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 plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

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

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

    1. In RE v GE [2015] EWCA Civ 287, Lewison LJ (with whom Pitchford LJ agreed) said:

“76. The overriding question is whether in all the circumstances of the case it is “equitable” to allow the action to proceed. “Equitable” means fair; and that means fair to both claimant and defendant, not just to the claimant.”

    1. Lewison LJ went on to say that whether a fair trial was still possible is a necessary but not sufficient factor in deciding whether to extend time.
    1. In CD v Catholic Child Welfare Society & others [2018] EWCA Civ 2342, Lewison LJ said:

“35. It follows that the disapplication of the limitation period is an exception to the general rule. For that reason the burden of persuasion lies on the claimant. Delay of itself may not preclude disapplication of the limitation period. What is of importance is what prejudice the defendant has suffered by the delay: see Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 at [73]. Indeed, in AS v Poor Sisters of Nazareth [2008] UKHL 32, 2008 SC (HL) 146, a case about the Scottish equivalent of section 33, Lord Hope (with whom the other law lords agreed) said at [25]:

“The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p 255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.”

The key relevant factors for the exercise of the discretion
    1. The effect of the Limitation Act, section 28, is that the primary three-year limitation period did not start to run until the claimant reached the age of 18. However, it is clear that, when considering the length of, and reason for the delay, the extent of evidential prejudice, and the other matters set out in section 33(3), the Court should take account of the impact of the whole of the period since the cause of action arose, not just from the claimant’s 18th birthday: see Donovan v Gwentoys Ltd [1990] 1 WLR 473 (HL), at 478H and 479G-480C. On that basis, the delay that has to be considered is nearly 28 years.
    1. In exercising the discretion, it is necessary, of course, to consider all of the circumstances of the case. However, as Mr Ford QC submitted in oral argument, there are two main factors that the Court should take into account in deciding whether to exercise the discretion to extend time. The first is the length of, and the reason for, the delay, and the second is the impact of the delay on the cogency of the evidence and upon the ability of the defendant to put forward its defence.
    1. I agree that these are the most important factors, and I will deal with these two factors first. It is convenient to deal with them in reverse order.
Has the cogency of the evidence been impaired, or the defendant been disadvantaged, by the delay in issuing proceedings?
    1. In my judgment, in the particular circumstances of this case, the answer is “no”.
    1. In the event, I have found in the defendant’s favour on the two substantive issues. The defendant is not liable to pay damages to the claimant and so has not been disadvantaged by the delay in issuing proceedings.
    1. Even if I had not found in the defendant’s favour, I do not think that the defendant would have been significantly disadvantaged in relation to the liability issues by the delay in issuing proceedings. This is because there are no important relevant witnesses whose recollections have faded, and there are no lines of evidential enquiry which have been closed off to the defendant by the effluxion of time.
    1. As regards the non-delegable duty issue, this is a pure point of law, decided by reference to the Supreme Court authorities, the statutory framework, and the undisputed facts. This means that the defendant has not been disadvantaged by the effluxion of time. There are no significant evidential issues in respect of which the delay has caused difficulties for the defendant.
    1. So far as the vicarious liability issue is concerned, this point did require some examination of the facts, because it depended on the nature of the relationship between the defendant, on the one hand, and the Company and John Allen, on the other. However, I was not disadvantaged by the absence of detailed evidence on this matter. The fundamental nature of the relationship between the defendant and the Company was clear and undisputed: the Company was a corporate entity, separate from the defendant, which operated as an independent contractor which provided services to local authorities by offering placements in its homes for children in the care of the local authorities, in return for fees. I have seen a letter from the Company to the defendant dated February 1989 which confirmed the offer of a placement for the claimant and which set out the Company’s scale of fees. I do not think that I would have been assisted by any further contractual or other documentation between the Company and the defendant, or by any witness evidence on this subject: the nature of the relationship was obvious, and any further information about it would not have altered the analysis that I set out above in the section of this judgment that deals with vicarious liability. Moreover, any relevant documents that were held by the Company were almost certainly destroyed in a fire as long ago as 1996.
    1. In relation to the question whether the sexual abuse actually took place, there is no issue between the parties. The defendant accepts that the claimant was sexually abused by John Allen as he alleges, and, indeed, a jury has found that this took place, applying the criminal standard of proof. The passage of time and paucity of evidence in relation to the treatment of the claimant the BAC in the period from February to May 1989 therefore does not disadvantage the defendant in any way, in relation to liability.
    1. As I have found against the claimant on liability, the issue of assessment of damages does not arise. Even if it had done so, I do not think that, in the unusual circumstances of this case, the defendant would be significantly disadvantaged by the delay in commencing these proceedings. Very fairly, on behalf of the defendant, Mr Ford QC accepted that the defendant had not been significantly disadvantaged by evidential difficulties relating to remedy, and did not seek to rely on any such difficulties as part of his argument based on evidential prejudice.
    1. In my view, the defendant was right to make this concession. If damages had been an issue, it is true that there would have been difficult issues of causation. These are canvassed in the joint causation experts’ report of Dr Cosmo Hallstrom and Professor Anthony Maden, dated 1 August 2019. In particular, the claimant had suffered traumatic experiences before he was placed in the BAC, including difficulties in his home life and sexual abuse by fellow residents at Buglawton School. He also suffered traumatic experiences after he left the BAC, including many years of drug abuse. He was regarded by the experts as an unreliable informant. In those circumstances, it would have been difficult to work out the extent to which the claimant’s difficulties were the result of the abuse that he had suffered at the hands of John Allen. However, I do not think that it would have been significantly easier to resolve these difficulties if the claimant’s claim had been issued before the expiry of the primary limitation period.
    1. In these circumstances, the defendant has not suffered any disadvantage or real possibility of significant prejudice as a result of the delay in issuing proceedings.
The length of, and the reason for, the delay
    1. In my judgment, the sheer length of the delay is not a good reason, in itself, to decline to extend time, in circumstances in which, for the reasons I have already given, the defendant is not prejudiced by the delay.
    1. Moreover, in the particular circumstances of this case, I do not think that the reasons for the delay mean that I should decline to extend time.
    1. This is not a case in which the claimant first sought a civil remedy for his abuse at the hands of John Allen when he commenced these proceedings in 2017. As set out at paragraphs 9-16, above, he had first attempted to seek redress from the Company, over 20 years ago, by taking part in the group litigation. It was only in 2006, following the conclusion of the proceedings against the Company’s insurers, that this litigation came to a successful end. In his second witness statement, the claimant says that he was advised at that stage that no other legal avenues for redress were open to him. Then, in 2014, the claimant unsuccessfully sought compensation from the Criminal Injuries Compensation Authority, following the conviction of John Allen, also in 2014, for abuse against him.
    1. The trigger for the present proceedings was that the claimant’s former solicitors contacted him in December 2016 to inform him that, in light a change in the law, there was now a chance of obtaining compensation from the local authority that had placed him in the BAC. He and his legal advisers acted swiftly thereafter, issuing his claim in February 2017 (it was subsequently stayed pending the outcome of the appeal to the Supreme Court in Armes).
    1. It is not obvious to me what change in the law prompted the claimant’s former solicitors to contact him in late 2016. There was no relevant change to statute law about that time, so far as I am aware. The Woodland case had been decided several years before, in October 2013. The Armes judgment in the Court of Appeal was in November 2015 (and did not offer much hope to those in the claimant’s position) and judgment in the appeal to the Supreme Court was not given until November 2017, some time after the claim was presented. Mr Davy’s skeleton argument refers to the judgment in Cox in the Supreme Court, but that was is March 2016 and was of limited significance, save that it indicated a general relaxation in the legal rules relating to vicarious liability.
    1. Nonetheless, I can see that, by late 2016, the claimant’s former solicitors could reasonably have taken the view that the direction of travel in the case law gave rise for greater hope than in the past that those in the claimant’s position might have a good claim against the local authority which placed them in the home at which they were abused. I think that it would be unduly harsh to criticise his former solicitors on the basis that they might have prompted him to bring a claim against the defendant a bit earlier than they did, especially as they were no longer acting as his solicitors in 2016. I do not think that any criticism of the claimant’s solicitors would be fair (and the defendant did not advance any such criticism).
    1. It is, furthermore, an important consideration, in my view, that the claimant had led a chaotic adult life, with drug addiction and long periods in and out of prison, but, nonetheless, he has taken active steps for over 20 years to obtain a civil remedy for the abuse that he had suffered. I think that it would be harsh, in these circumstances, to decline to exercise the discretion in his favour. Even, if, contrary to my view, it was fair to criticise the claimant’s solicitors for being dilatory, I do not think that it would be right to hold the claimant responsible for any such failing. It is not surprising that a lay individual did not think to bring a claim against the local authority which placed him in the children’s home.
The other factors set out in section 33(3) and all of the circumstances of the case
    1. As for the other factors, set out in section 33(3)(c) to (f), these are essentially dealt with in the preceding paragraphs. The defendant has not delayed unduly, but this is not an important factor in this case. Whether or not the claimant counts as disabled for the purpose of section 33(3)(d), his addictions and his chaotic lifestyle, which may well have been substantially caused by the abuse that he suffered, are likely to explain the extent to which he was dilatory in presenting his claim. He acted promptly and reasonably when he was notified by his former solicitors of the possibility of claiming against the local authority, and he took appropriate advice.
Conclusion
    1. For the above reasons, it is appropriate to extend time under section 33 so as to bring the claim in time, notwithstanding that I have gone on to dismiss the claim. I agree with Mr Davy that it would be regrettable in the extreme if the Claimant were to find himself ‘shut out’ from obtaining redress, in spite of his repeated and diligent attempts over the last two decades to seek redress for the harm caused to him as an innocent victim of childhood sexual abuse.
  1. However, for the reasons that are set out in this judgment, this claim is dismissed.
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