COURT EXTENDS TIME TO BRING HUMAN RIGHTS ACT CLAIM: MINOR CLAIMANTS AN IMPORTANT FACTOR
In CJ & Ors Wiltshire Police  EWHC 1661 (QB) Mr Justice Martin Spencer extended the limitation period in a claim under the Human Rights Act. Although the claimants were ultimately unsuccessful there are important observations in relation to the extension of time in cases concerning minors in particular.
“… in contrast to the other cases cited, the Claimants in this case are all minors. In English domestic law, the limitation period for minors does not start until they attain their majority and although there is no such principle for the purposes of s.7(5), the fact that the Claimants are minors is, and should be, in my judgment, a significant factor in deciding whether to exercise the s.7(5)(b) discretion.”
The claimants were all minors, they brought an action against the police in relation to the failure to act promptly upon knowledge that the force failed to act properly and promptly following the discovery of indecent photographs of children on a laptop. The delay in investigation had led to the children being abused by the person who had downloaded the photos.
The action did not succeed, either in negligence, or under breach of Article 3 of the ECHR. However the judge did allow the action to proceed to a trial on the merits where the claim had been brought outside the one year period.
THE JUDGMENT ON THE LIMITATION ISSUE
In relation to the legal framework concerning the exercise of the equitable discretion to extend the limitation period in relation to claims under s.6 HRA, and the principles to be applied, I am grateful to Collins Rice J for her exposition inRafiq v Thurrock Borough Council  EWHC 584 (QB) which I adopt:
“14. There is guidance in the caselaw for courts exercising discretion under s.7(5)(b). The Supreme Court in Rabone v Pennine Care NHS Trust  2 AC 72 said this (paragraph 75):
‘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 … 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.’
So it is not wrong for a court to have regard to the s.33 factors if it considers it proper to do so in the circumstances of a particular case, but they must not be treated as a fetter on discretion. Instead, the court is to examine all the relevant factors in a case and consider whether it is equitable to allow a period of longer than one year. 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 court. (P v Tameside MBC 1 WLR 2127at paragraph 67).
P v Tameside(paragraphs 77-79) is also authority that a court must have regard to the policy reasons for Parliament adopting a much tighter limitation period in HRA claims than usual, and that these may be similar to those for the tight 3-month limit in judicial review proceedings.
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.
The court must look critically at the explanations given for the delay, set against these policy considerations. Delay is always a relevant consideration whether or not there is actual trial prejudice to a defendant. However the ‘burden of persuasion’ on a claimant is not necessarily a heavy one and there is no burden to establish lack of prejudice to the defendant.
The High Court inAlseran & Ors (Iraqi Civilian Litigation) v MoD EWHC 3289 (QB) took emphasis from the judgments of Lord Dyson and Lady Hale in Rabone that the merits of a claim may be the ‘most important of all’ the points which may militate in favour of granting an extension, and that it is ‘important that fundamental human rights are vindicated’. It also noted that ‘evidential prejudice’ to a defendant, where delay means that witnesses cannot be traced or memories have faded, may militate against the fairness of granting an extension.
Most recently, the High Court in Newell v MoJ EWHC 810 (QB) directed itself not to put any qualification to, or gloss on, ‘equitable having regard to all the circumstances’. It must mean being fair to each side.”
In the present case, there are two factors in particular which, in my judgment, point clearly to the exercise of the discretion in favour of the Claimants to allow these claims to proceed. First, the acts complained of are the acts or omissions of the Defendant, and of DS Ellerby in particular, which allowed MP to commit the serious sexual abuse of the Claimants. Whether the “act complained of” is interpreted as the conduct of the Defendant or the conduct of MP, what is clear is that an action could never have been brought within 1 year because the knowledge of both what MP did and its relationship to DS Ellerby’s investigation came significantly later, and realistically, in my view, only when the disciplinary proceedings against DS Ellerby had concluded and the IPCC report had been released. Thus, it was always going to be equitable to extend time to some extent, the issue being the length of the period of extension, not whether the period should be extended at all. Secondly, in contrast to the other cases cited, the Claimants in this case are all minors. In English domestic law, the limitation period for minors does not start until they attain their majority and although there is no such principle for the purposes of s.7(5), the fact that the Claimants are minors is, and should be, in my judgment, a significant factor in deciding whether to exercise the s.7(5)(b) discretion.
Apart from those two factors however, I would consider it appropriate to exercise my discretion to extend the limitation period for the following reasons, as submitted by the Claimants:
(i) the date of knowledge that there was a viable claim: this was not, realistically, until the disciplinary proceedings against DS Ellerby had concluded and the IPCC report was released;
(ii) the delay thereafter: I do not consider this to have been unreasonable. In particular, legal aid needed to be extended to cover the issue of proceedings and it was reasonable to co-ordinate the claims so that advice from Leading Counsel could be obtained. I should make it clear that I do not endorse any notion which may have existed in the mind of Mr Bridge that, in a HRA claim, the one-year period starts from the date of knowledge: there is simply no authority for this proposition, and it involves an unfortunate, and ill-considered, amalgamation of s.14 of the Limitation Act 1980 and s.7(5) HRA. I would therefore warn against any solicitor who thinks that, in a HRA case, he or she has 1 year from the date of knowledge. Whether 1 year is or is not reasonable will depend on all the circumstances. In this particular case, though, and fortunately for Mr Bridge, I do think that it was reasonable;
(iii) the lack of prejudice to the Defendant: in my judgment, it is significant that much of the intervening period was taken up by the investigation into both MP’s wrongdoing (culminating in his conviction in 2016) and thereafter DS Ellerby and the failures in relation to his investigation. Thus, there is no prejudice that I can see to the Defendant and all the evidence required in this case was garnered a long time ago;
(iv) in the case of CJ/PJ, the psychological state of their mother, DJ: she had, herself, suffered sexual abuse at the hands of her father and to discover that her children had suffered serious sexual abuse at the hands of their uncle, her brother, and that she had failed to protect them from him, must have been devastating for her: if she needed time to come to terms with what had happened and get into a fit emotional state to provide coherent instructions to Ms McGhie, this is wholly understandable and an important human factor which it is appropriate to take into account;
(v) the dilatory conduct from the Defendant in pre-action correspondence: although this is a weak factor, the Defendant should clearly have responded substantively to the requests for a limitation moratorium, and the eventual refusal to agree a moratorium in the case of HD/PD in February 2018 seems to me to be difficult to justify, in the circumstances of this case;
(vi) the nature of the claim: this is a claim involving serious sexual assaults, including the rape of a 5-7 year old girl, with significant psychological consequences for the Claimants: the court will be slow to drive such claims from the judgment-seat on the grounds of limitation and there is a wider public interest in seeing claims such as this properly considered, with both its factual and legal implications.
In the circumstances, I exercise my discretion to extend time to bring the HRA claims to the date of issue of proceedings in all three cases.