A V HOARE [2008] EWHC 1573 (QB)
FACTS:-
On the 22nd February 1988, the Defendant subjected the Claimant to a serious sexual assault. He initially pleaded not guilty but was subsequently convicted of attempted rape and was sentenced to life imprisonment. He was released on licence on the 10th May 2004 and won £7 million on the National Lottery. On the 22nd December 2004, the Claimant commenced civil proceedings against the Defendant for damages for assault and battery resulting in psychiatric injury.
The Claimant’s claim at that time was statute barred by reason of Section 2 of the Limitation Act 1980. The case went to the House in Lords in A v Hoare [2008] UKHL 6 who held that a previous case, Stubbings v Webb [1993] AC 498 was wrongly decided on this issue. The Lords held that section 11 of the Limitation Act 1980 extended to claims for damages in tort arising from trespass to the person, including sexual assault. The case was remitted to a Queen’s Bench judge to decide whether the discretion under section 33 of the Limitation Act 1980 should be exercised in the Claimant’s favour.
HELD
Mr Justice Coulson said that he had been provided with the Claimant’s original statement from 1988, an updated statement dealing with the issues in section 33 and witness statements from the Claimant’s and Defendant’s solicitor
The relevant evidence
It was clear that this had been a violent and shocking attack and the Defendant had chosen to contest the charges against him. The Claimant had described the effect of the rape on her and produced a report from Dr Adrianne Reveley, who concluded that the Defendant suffered from Post Traumatic Stress Disorder. The Claimant’s position had change drastically when the Defendant had been released from prison. She became in her own words, a nervous wreck. She experienced a return to her PTSD symptoms which according to Dr Reveley remained clinically significant.
The Claimant had received the sum of £5,000 from the Criminal Injuries Compensation Board. She had not given any thought to pursuing the Claimant through the civil courts after the rapes, because he was impecunious at the time.
The Applicable Principles
Justice Coulson went over the provision of section 33 of the Limitation Act 1980 and in particular Section 33(3)(a) to (f). The history of section 33 was set out by Lord Diplock in the case of Thompson v Brown [1981] 1 WLR 744 in which he explained the attempts to resolve the difficulties in ascertaining when a Claimant in a personal injury case had the requisite knowledge for limitation purposes particular in cases of long maturing industrial diseases. The link between this statutory provision and that particular type of personal injury claim was also made in Dobbie v Medway Health Authority [1994] 2 WLR 1234. Lord Justice Coulson said that one point that had been repeatedly stressed in the authorities was the importance of the general policy of maintaining clear statutory periods of limitation.
The wide unfettered nature of the discretion
The parties agreed that section 33 provided the court with a wide and unfettered discretion. In Nash v Eli Lilly and Co. [1993] 1 WLR 782 this was confirmed by the Court of Appeal and again by the House of Lords in Horton v Sadler [2006] UKHL 27 which removed the anomaly that a claim who had commenced proceedings within time but had failed to pursue them was in a worse position that a Claimant who had not done anything before the expiry of the limitation period.
At the same time, the court must take into account all of the circumstances specified in section 33(3) and indeed all of the circumstances relevant to its decision, and should conduct balancing exercise in relation to them. A decision should not be on the strength of just one of the relevant circumstances. (Long v Tolchard and Sons Limited [2001] PIQR P18).
The burden on the Claimant
The burden of showing that it would be equitable to disapply the limitation period rested with the Claimant and it was a heavy burden. In Thompson the court said that an order under section 33 was the exception to a general rule. The same point was made in KR and Others v Bryn Alyn Community (Holdings) Limited and Another [2003] QB 1441 where the Court of Appeal described an order under section 33 as an exceptional indulgence.
Length of Delay
The longer the delay, the more likely and the greater, the prejudice to the Defendant. Any delay on the part of the Claimant, both before and after the expiration of the limitation period should be considered. (Donovan v Gwentoys [1990] 1 WLR 472).
Reasons for the Delay
This was a subjective question. (Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189). The court had to satisfy itself as to the genuineness of the Claimant’s reason or reasons for the delay in commencing proceedings. It might also be necessary for the court to consider any question of the Claimant’s culpability for that delay. The court should then under section 33(3)(e) consider whether or not, in all the circumstances, the reason or reasons for delay advanced by the Claimant are sufficient to be given real or decisive weight. In Buckler v JF Finnegan Limited and Another [2004] EWCA Civ 920 Potter LJ said that the approach to be applied by the judge was whether or not circumstances (including the condition of the Claimant) or the Claimant’s knowledge of such circumstances have changed to such an extent which make it equitable for the Claimant to be permitted to proceed, in a situation where he had previously consciously and deliberately decided not to proceed.
In Forbes v Wandsworth Health Authority [1997] QB 402 Stuart-Smith LJ refused an application under section 33 where there had been no alteration in the Claimant’s circumstances or condition, and where there had only been a simple change of mind.
It was agreed that the court was entitled to take into account any subconscious reasons for delay on the part of the Claimant, in accordance with the decision in McCafferty v Metropolitan Police District Receiver [1977] 2 All ER 756.
Cogency of evidence
Justice Coulson said that it might often be difficult for a Defendant to identify with precision as to why they were prejudiced, and that it might be appropriate to assume that the delay has had at least some adverse effect on the cogency of the evidence that would otherwise have been available to the Defendant. (Skerratt v Linfax Ltd [2003] EWCA Civ 695 and Hartley v Birmingham City Council [1992] 1 WLR 968. The question of prejudice might be a neutral factor in many cases, but what mattered was the effect on the Defendant’s ability to defend.
In Hartley it was said that the prejudice to the Claimant and the Defendant by the operation of the relevant limitation provisions and their disapplication was equal and opposite. The stronger the Claimant’s case, the greater the prejudice to him from the operation of the provision and the greater would be the prejudice to the Defendant if the provision was disapplied. What was of paramount importance was the effect of delay on the Defendant’s ability to defend. The court should consider at least in general terms, the strength and weaknesses of the claim and the defence, in order to if there was a particular aspect of the evidence which had been adversely affected by the delay.
In the case of Nash v Eli Lilly, the court said if the case was a poor case, then the Defendants were put to the expense of having to defend upon its merits a poor case, which might cost far more to defend than the case would be held to be worth.
Availability of other remedies
The court should consider whether or not alternative remedies to the civil proceedings in question had been considered or activated by the Claimant (Davis v Jacobs and Others [1999] All ER (D) 227 and the case of Forbes v Wandsworth Health Authority). Justice Coulson said that although the existence of an alternative remedy was a factor to be taken into account, there was no authority for the proposition that the existence of such a remedy is or should be a significant, let along an overwhelming factor in the exercise of the court’s discretion under section 33.
The impecuniosity of the Defendant
Both counsel were agreed that there was no reported authority in which the court had been asked to exercise its section 33 discretion on the ground that the claim was not commenced earlier because the Defendant had no money to pay the claim. The case of Skitt v Khan and Wakefiled Health Authority [1997] 8 Med LR 105 concerned a Claimant who did not issue because he had no money. The Court of Appeal did not consider that to be a sufficient reason for the delay. However there was a big difference between that case and this one.
Attention had been drawn by the Defendant’s counsel to the report of the Law Commission No. 270. This suggested that giving the Claimant more time to claim because the Defendant had no money might be hard to justify. Justice Coulson said that no part of that report had as yet been implemented, and also that statement in the Law Commission’s report had been concerned with the test for “significant injury” under section 14(2) of the Limitation Act 1980.
However the House of Lord had already considered this issue in the present case. Lord Brown, considering the way in which the court should approach section 33, had said that it would be most unfortunate if people felt obliged to bring proceedings for sexual abuse against impoverished Defendants simply with a view to their future enforcement. Lord Hoffman agreed with Lord Brown and Baroness Hale said that it might be more satisfactory to transfer this issue into the exercise of discretion under section 33. Then the injustice to the Claimant who might be deprived of his claim could be balanced against the injustice to a Defendant who might be called to defend himself a long time after the event.
Justice Coulson also referred to the decision of the Court of Appeal in Albonetti v Wirral MBC [2008] EWCA Civ 783. That case was concerned with a rape that occurred many years ago and also with the issue of knowledge under section 14 of the 1980 Act. However it was expressly noted in Albonetti that the section 33 point had not been argued out and it was remitted to a single judge on that issue.
The nature and effect of the underlying tort
Firstly the Defendant’s violent sexual assault on the Claimant was an appalling event, and it was regarded as so serious by the trial judge as to justify the imposition of a sentence of life imprisonment. That was a factor to be weighed in the balance in the Claimant’s favour.
Secondly the Defendant had been convicted and could have no grounds for disputing the factual basis of the tort.
Thirdly the tort itself created the very circumstances which prevented the Claimant from bringing the claim any earlier. As a prisoner, the Defendant was in no position at all to satisfy any judgment that the Claimant obtained against him and so that impecuniosity was a direct result of the tort itself. Therefore the seriousness of the tort, in creating the Defendant’s impecuniosity, would actually be to her disadvantage. Such a result would be inequitable.
Fourth this was an exceptional case. A very small proportion of tortious claims revolved around intentional assaults like this one. An even tinier proportion of such cases arose out of offences that were so serious that a term of life imprisonment was imposed.
The length and reasons for delay
Length of delay
The Claim Form was issued 16 years and 10 months after the assault, and 13 years and 10 months after the expiry of the three year limitation period on the 21st February 1991. That was plainly a very long delay, which brought with it the additional burden on the Claimant of demonstrating that such a long period should be set aside.
In Mold v Hayton and Newson [2000] LTL 17th April 2000 the Court of Appeal referred to a delay of 18 years as a “huge delay” and held that if an extension was granted, the judge had a duty to explain his reasons “with meticulous care.” Justice Coulson said that such periods were not unknown. What mattered most was not the length of the delay itself, but the reasons for that delay and its potentially prejudicial effect.
The reasons for delay
The principal reason for the Claimant’s delay was the Defendant’s impecuniosity. Justice Coulson found this reason genuine and entirely understandable.
Moreover the Claimant had wanted to put this incident behind her and she had according to Dr Reveley tried to block it out. This was another subconscious reason why the Claimant did not really contemplate the prospect of civil proceedings, and having to go through the relevant events, in a court, for a second time.
Cogency of evidence
The Defendant’s counsel had submitted that the delay would have an adverse effect on the cogency of the evidence as to causation. Because of the delay, the Defendant would have been deprived of the opportunity of engaging his own medical expert contemporaneously with the symptoms, so as to examine the Claimant and to consider whether she was indeed suffering from PTSD.
Justice Coulson accepted that in addition to the general prejudice to the Defendant that could be said to arise ordinarily from the very long delay, it was also likely that the delay in commencing proceedings would have a detrimental effect on the expert evidence which the Defendant might wish to adduce on causation. That was a point to be weighed in the Defendant’s favour. However such prejudice would not be substantial for the following reasons:-
* Firstly whether the Claimant had seen Dr Reveley shortly after the incident or a long time after the incident, the psychiatrist would still have been largely dependent on what she was told by the Claimant. So any prejudice would be limited to the reliability of the Claimant’s recollection of how she felt in the early 1990’s.
* Secondly there was critical evidence from the events in 2004, when the Claimant again suffered PTSD. This was not stale at all.
It was also of note that the Defendant had not sought to challenge any aspect of Dr Reveley’s evidence, or asked any questions of Dr Reveley. The Defendant had also complained that because the Claimant’s partner was now dead, he was prejudiced by the lack of corroborative evidence about the way in which their relationship had suffered. Justice Coulson said that this was a bad point for the Defendant to raise, since the absence of such evidence would undoubtedly cause a greater prejudice to the Claimant than to the Defendant.
Quantum was entirely dependent on the evidence of causation and no separate issues of prejudice and cogency could arise.
Therefore any such detriment to the Defendant would be modest.
Conduct and disability
Neither point arose on the facts of this case. There was no relevant conduct on the part of the Defendant and there was no disability on the part of the Claimant. These matters were neutral.
Acting promptly and reasonably
Before commencement of proceedings
Justice Coulson had to ask the question whether the delay was reasonable in all the circumstances. He felt that it was for the following reasons:-
* It was reasonable for the Claimant not to pursue the Defendant when he was a prisoner serving a sentence of life imprisonment. It would have been a futile claim and a waste of the court’s resources. The delay in commencing proceedings ended once the Defendant became a multi- millionaire.
* The Defendants’ impecuniosity was a direct consequence of his tortious wrong-doing. It would be wrong to allow the Defendant to take advantage of his own tort, so that he could use the limitation rules to avoid compensating the Claimant.
* The only advantage in the Claimant pursuing the Defendant within the limitation period would have been to wait until he won the lottery and then seek to enforce the order. Any other view would encourage useless proceedings on the grounds that, one day, something might turn up.
* The Claimant had also attempted to put the incident behind her. Although this was not the principal reason for the delay, if she had commenced proceedings within the limitation period, she would not have able to undertake a recovery. The second bout of PTSD meant that the Claimant’s position had changed. That seemed to be a justifiable (albeit secondary and sub-conscious reason for the delay in commencing proceedings.
After commencement of proceedings
The Claimant heard of the Defendant’s release and the significant change in his fortune in August 2004, whereupon in the same month she instructed solicitors. Proceedings were issued on the 22nd December 2004, a psychiatrist instructed on the 12th April 2005 and a report produced on the 12th May 2005. All of the time thereafter was taken up with the delay necessitated by the various appeals. She had therefore acted promptly and reasonably since the proceedings were issued.
The steps to obtain advice
This really came under the heading “After commencement of proceedings.” Justice Coulson considered that the Claimant had acted reasonably in obtaining
the relevant advice, and that no unreasonable delay had occurred once she became aware of the Defendant’s release from prison and his win on the lottery.
Other matters
A variety of other matters were raised by the Defendant as being relevant to the exercise of the court’s discretion under section 33.
The Defendant had raised the issue of human rights. Justice Coulson said that he was quite satisfied that there was no potential infringement of his human rights under section 33 of the 1980 Act.
Reference was also made to the award of £5,000 from the CICB. The Claimant had said that she would pay this back. Justice Coulson said that this was of some relevance but not of any great significance. The money had been paid by the British taxpayer, not the Defendant. Neither could this award be regarded as the entirety of the Claimant’s claim on the basis of cases such as W v Meah [1986] 2 All ER 934 and Griffiths v Williams (Court of Appeal, 21st November 1995, unreported). The award of £5,000 was a factor in the Defendant’s favour, but not one to which any great weight could be given.
There was also additional prejudice to the Defendant insofar as the Claimant now had a conditional fee agreement, which she would not have had in 1990. There a decision of Smith v MOD [2005] EWHC 682 (QB) in which Justice Silber said that this was a potential point of prejudice, although he made no definitive finding on the point. Justice Coulson said that this was potentially a point of prejudice but it was of little weight overall.
The Defendant had made an offer to the Claimant, which was reported in an article on the Daily Mail Online. Justice Coulson rejected the suggestion that the reference by the Daily Mail had or could have any effect on the ability of the Defendant to receive a fair trial.
The Defendant argued that he had become rehabilitated. Justice Coulson emphatically rejected that submission. The Defendant did not have nor could ever have a clean slate. He was still under licence and that licence could be withdrawn at any time.
Conclusions as to the exercise of discretion
Justice Coulson concluded that the factors in the Claimant’s favour were more numerous and of significantly greater weight. Therefore section 33 of the Limitation Act 1980 would be exercised in her favour.
Justice Coulson would make one final point. It was implicit in the Defendant’s counsel’s submissions that if he exercised his discretion under section 33 in the
Claimant’s favour, there was a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the Defendant’s impecuniosity.
Justice Coulson said that section 33 only applied to personal injury and fatal accident claims, not other forms of civil proceedings. Secondly no decision under section 33 could be regarded as setting down definitive guidelines that were automatically applicable in another factual situation. Any decision under section 33 had to be regarded as a decision on the particular facts of that case, and nothing more.
Finally this was a wholly exceptional case.
Therefore Justice Coulson would exercise his discretion under section 33 and disapply the relevant limitation period.
FACTS:-
On the 22nd February 1988, the Defendant subjected the Claimant to a serious sexual assault. He initially pleaded not guilty but was subsequently convicted of attempted rape and was sentenced to life imprisonment. He was released on licence on the 10th May 2004 and won £7 million on the National Lottery. On the 22nd December 2004, the Claimant commenced civil proceedings against the Defendant for damages for assault and battery resulting in psychiatric injury.
The Claimant’s claim at that time was statute barred by reason of Section 2 of the Limitation Act 1980. The case went to the House in Lords in A v Hoare [2008] UKHL 6 who held that a previous case, Stubbings v Webb [1993] AC 498 was wrongly decided on this issue. The Lords held that section 11 of the Limitation Act 1980 extended to claims for damages in tort arising from trespass to the person, including sexual assault. The case was remitted to a Queen’s Bench judge to decide whether the discretion under section 33 of the Limitation Act 1980 should be exercised in the Claimant’s favour.
HELD
Mr Justice Coulson said that he had been provided with the Claimant’s original statement from 1988, an updated statement dealing with the issues in section 33 and witness statements from the Claimant’s and Defendant’s solicitor
The relevant evidence
It was clear that this had been a violent and shocking attack and the Defendant had chosen to contest the charges against him. The Claimant had described the effect of the rape on her and produced a report from Dr Adrianne Reveley, who concluded that the Defendant suffered from Post Traumatic Stress Disorder. The Claimant’s position had change drastically when the Defendant had been released from prison. She became in her own words, a nervous wreck. She experienced a return to her PTSD symptoms which according to Dr Reveley remained clinically significant.
The Claimant had received the sum of £5,000 from the Criminal Injuries Compensation Board. She had not given any thought to pursuing the Claimant through the civil courts after the rapes, because he was impecunious at the time.
The Applicable Principles
Justice Coulson went over the provision of section 33 of the Limitation Act 1980 and in particular Section 33(3)(a) to (f). The history of section 33 was set out by Lord Diplock in the case of Thompson v Brown [1981] 1 WLR 744 in which he explained the attempts to resolve the difficulties in ascertaining when a Claimant in a personal injury case had the requisite knowledge for limitation purposes particular in cases of long maturing industrial diseases. The link between this statutory provision and that particular type of personal injury claim was also made in Dobbie v Medway Health Authority [1994] 2 WLR 1234. Lord Justice Coulson said that one point that had been repeatedly stressed in the authorities was the importance of the general policy of maintaining clear statutory periods of limitation.
The wide unfettered nature of the discretion
The parties agreed that section 33 provided the court with a wide and unfettered discretion. In Nash v Eli Lilly and Co. [1993] 1 WLR 782 this was confirmed by the Court of Appeal and again by the House of Lords in Horton v Sadler [2006] UKHL 27 which removed the anomaly that a claim who had commenced proceedings within time but had failed to pursue them was in a worse position that a Claimant who had not done anything before the expiry of the limitation period.
At the same time, the court must take into account all of the circumstances specified in section 33(3) and indeed all of the circumstances relevant to its decision, and should conduct balancing exercise in relation to them. A decision should not be on the strength of just one of the relevant circumstances. (Long v Tolchard and Sons Limited [2001] PIQR P18).
The burden on the Claimant
The burden of showing that it would be equitable to disapply the limitation period rested with the Claimant and it was a heavy burden. In Thompson the court said that an order under section 33 was the exception to a general rule. The same point was made in KR and Others v Bryn Alyn Community (Holdings) Limited and Another [2003] QB 1441 where the Court of Appeal described an order under section 33 as an exceptional indulgence.
Length of Delay
The longer the delay, the more likely and the greater, the prejudice to the Defendant. Any delay on the part of the Claimant, both before and after the expiration of the limitation period should be considered. (Donovan v Gwentoys [1990] 1 WLR 472).
Reasons for the Delay
This was a subjective question. (Coad v Cornwall and Isles of Scilly Health Authority [1997] 1 WLR 189). The court had to satisfy itself as to the genuineness of the Claimant’s reason or reasons for the delay in commencing proceedings. It might also be necessary for the court to consider any question of the Claimant’s culpability for that delay. The court should then under section 33(3)(e) consider whether or not, in all the circumstances, the reason or reasons for delay advanced by the Claimant are sufficient to be given real or decisive weight. In Buckler v JF Finnegan Limited and Another [2004] EWCA Civ 920 Potter LJ said that the approach to be applied by the judge was whether or not circumstances (including the condition of the Claimant) or the Claimant’s knowledge of such circumstances have changed to such an extent which make it equitable for the Claimant to be permitted to proceed, in a situation where he had previously consciously and deliberately decided not to proceed.
In Forbes v Wandsworth Health Authority [1997] QB 402 Stuart-Smith LJ refused an application under section 33 where there had been no alteration in the Claimant’s circumstances or condition, and where there had only been a simple change of mind.
It was agreed that the court was entitled to take into account any subconscious reasons for delay on the part of the Claimant, in accordance with the decision in McCafferty v Metropolitan Police District Receiver [1977] 2 All ER 756.
Cogency of evidence
Justice Coulson said that it might often be difficult for a Defendant to identify with precision as to why they were prejudiced, and that it might be appropriate to assume that the delay has had at least some adverse effect on the cogency of the evidence that would otherwise have been available to the Defendant. (Skerratt v Linfax Ltd [2003] EWCA Civ 695 and Hartley v Birmingham City Council [1992] 1 WLR 968. The question of prejudice might be a neutral factor in many cases, but what mattered was the effect on the Defendant’s ability to defend.
In Hartley it was said that the prejudice to the Claimant and the Defendant by the operation of the relevant limitation provisions and their disapplication was equal and opposite. The stronger the Claimant’s case, the greater the prejudice to him from the operation of the provision and the greater would be the prejudice to the Defendant if the provision was disapplied. What was of paramount importance was the effect of delay on the Defendant’s ability to defend. The court should consider at least in general terms, the strength and weaknesses of the claim and the defence, in order to if there was a particular aspect of the evidence which had been adversely affected by the delay.
In the case of Nash v Eli Lilly, the court said if the case was a poor case, then the Defendants were put to the expense of having to defend upon its merits a poor case, which might cost far more to defend than the case would be held to be worth.
Availability of other remedies
The court should consider whether or not alternative remedies to the civil proceedings in question had been considered or activated by the Claimant (Davis v Jacobs and Others [1999] All ER (D) 227 and the case of Forbes v Wandsworth Health Authority). Justice Coulson said that although the existence of an alternative remedy was a factor to be taken into account, there was no authority for the proposition that the existence of such a remedy is or should be a significant, let along an overwhelming factor in the exercise of the court’s discretion under section 33.
The impecuniosity of the Defendant
Both counsel were agreed that there was no reported authority in which the court had been asked to exercise its section 33 discretion on the ground that the claim was not commenced earlier because the Defendant had no money to pay the claim. The case of Skitt v Khan and Wakefiled Health Authority [1997] 8 Med LR 105 concerned a Claimant who did not issue because he had no money. The Court of Appeal did not consider that to be a sufficient reason for the delay. However there was a big difference between that case and this one.
Attention had been drawn by the Defendant’s counsel to the report of the Law Commission No. 270. This suggested that giving the Claimant more time to claim because the Defendant had no money might be hard to justify. Justice Coulson said that no part of that report had as yet been implemented, and also that statement in the Law Commission’s report had been concerned with the test for “significant injury” under section 14(2) of the Limitation Act 1980.
However the House of Lord had already considered this issue in the present case. Lord Brown, considering the way in which the court should approach section 33, had said that it would be most unfortunate if people felt obliged to bring proceedings for sexual abuse against impoverished Defendants simply with a view to their future enforcement. Lord Hoffman agreed with Lord Brown and Baroness Hale said that it might be more satisfactory to transfer this issue into the exercise of discretion under section 33. Then the injustice to the Claimant who might be deprived of his claim could be balanced against the injustice to a Defendant who might be called to defend himself a long time after the event.
Justice Coulson also referred to the decision of the Court of Appeal in Albonetti v Wirral MBC [2008] EWCA Civ 783. That case was concerned with a rape that occurred many years ago and also with the issue of knowledge under section 14 of the 1980 Act. However it was expressly noted in Albonetti that the section 33 point had not been argued out and it was remitted to a single judge on that issue.
The nature and effect of the underlying tort
Firstly the Defendant’s violent sexual assault on the Claimant was an appalling event, and it was regarded as so serious by the trial judge as to justify the imposition of a sentence of life imprisonment. That was a factor to be weighed in the balance in the Claimant’s favour.
Secondly the Defendant had been convicted and could have no grounds for disputing the factual basis of the tort.
Thirdly the tort itself created the very circumstances which prevented the Claimant from bringing the claim any earlier. As a prisoner, the Defendant was in no position at all to satisfy any judgment that the Claimant obtained against him and so that impecuniosity was a direct result of the tort itself. Therefore the seriousness of the tort, in creating the Defendant’s impecuniosity, would actually be to her disadvantage. Such a result would be inequitable.
Fourth this was an exceptional case. A very small proportion of tortious claims revolved around intentional assaults like this one. An even tinier proportion of such cases arose out of offences that were so serious that a term of life imprisonment was imposed.
The length and reasons for delay
Length of delay
The Claim Form was issued 16 years and 10 months after the assault, and 13 years and 10 months after the expiry of the three year limitation period on the 21st February 1991. That was plainly a very long delay, which brought with it the additional burden on the Claimant of demonstrating that such a long period should be set aside.
In Mold v Hayton and Newson [2000] LTL 17th April 2000 the Court of Appeal referred to a delay of 18 years as a “huge delay” and held that if an extension was granted, the judge had a duty to explain his reasons “with meticulous care.” Justice Coulson said that such periods were not unknown. What mattered most was not the length of the delay itself, but the reasons for that delay and its potentially prejudicial effect.
The reasons for delay
The principal reason for the Claimant’s delay was the Defendant’s impecuniosity. Justice Coulson found this reason genuine and entirely understandable.
Moreover the Claimant had wanted to put this incident behind her and she had according to Dr Reveley tried to block it out. This was another subconscious reason why the Claimant did not really contemplate the prospect of civil proceedings, and having to go through the relevant events, in a court, for a second time.
Cogency of evidence
The Defendant’s counsel had submitted that the delay would have an adverse effect on the cogency of the evidence as to causation. Because of the delay, the Defendant would have been deprived of the opportunity of engaging his own medical expert contemporaneously with the symptoms, so as to examine the Claimant and to consider whether she was indeed suffering from PTSD.
Justice Coulson accepted that in addition to the general prejudice to the Defendant that could be said to arise ordinarily from the very long delay, it was also likely that the delay in commencing proceedings would have a detrimental effect on the expert evidence which the Defendant might wish to adduce on causation. That was a point to be weighed in the Defendant’s favour. However such prejudice would not be substantial for the following reasons:-
* Firstly whether the Claimant had seen Dr Reveley shortly after the incident or a long time after the incident, the psychiatrist would still have been largely dependent on what she was told by the Claimant. So any prejudice would be limited to the reliability of the Claimant’s recollection of how she felt in the early 1990’s.
* Secondly there was critical evidence from the events in 2004, when the Claimant again suffered PTSD. This was not stale at all.
It was also of note that the Defendant had not sought to challenge any aspect of Dr Reveley’s evidence, or asked any questions of Dr Reveley. The Defendant had also complained that because the Claimant’s partner was now dead, he was prejudiced by the lack of corroborative evidence about the way in which their relationship had suffered. Justice Coulson said that this was a bad point for the Defendant to raise, since the absence of such evidence would undoubtedly cause a greater prejudice to the Claimant than to the Defendant.
Quantum was entirely dependent on the evidence of causation and no separate issues of prejudice and cogency could arise.
Therefore any such detriment to the Defendant would be modest.
Conduct and disability
Neither point arose on the facts of this case. There was no relevant conduct on the part of the Defendant and there was no disability on the part of the Claimant. These matters were neutral.
Acting promptly and reasonably
Before commencement of proceedings
Justice Coulson had to ask the question whether the delay was reasonable in all the circumstances. He felt that it was for the following reasons:-
* It was reasonable for the Claimant not to pursue the Defendant when he was a prisoner serving a sentence of life imprisonment. It would have been a futile claim and a waste of the court’s resources. The delay in commencing proceedings ended once the Defendant became a multi- millionaire.
* The Defendants’ impecuniosity was a direct consequence of his tortious wrong-doing. It would be wrong to allow the Defendant to take advantage of his own tort, so that he could use the limitation rules to avoid compensating the Claimant.
* The only advantage in the Claimant pursuing the Defendant within the limitation period would have been to wait until he won the lottery and then seek to enforce the order. Any other view would encourage useless proceedings on the grounds that, one day, something might turn up.
* The Claimant had also attempted to put the incident behind her. Although this was not the principal reason for the delay, if she had commenced proceedings within the limitation period, she would not have able to undertake a recovery. The second bout of PTSD meant that the Claimant’s position had changed. That seemed to be a justifiable (albeit secondary and sub-conscious reason for the delay in commencing proceedings.
After commencement of proceedings
The Claimant heard of the Defendant’s release and the significant change in his fortune in August 2004, whereupon in the same month she instructed solicitors. Proceedings were issued on the 22nd December 2004, a psychiatrist instructed on the 12th April 2005 and a report produced on the 12th May 2005. All of the time thereafter was taken up with the delay necessitated by the various appeals. She had therefore acted promptly and reasonably since the proceedings were issued.
The steps to obtain advice
This really came under the heading “After commencement of proceedings.” Justice Coulson considered that the Claimant had acted reasonably in obtaining
the relevant advice, and that no unreasonable delay had occurred once she became aware of the Defendant’s release from prison and his win on the lottery.
Other matters
A variety of other matters were raised by the Defendant as being relevant to the exercise of the court’s discretion under section 33.
The Defendant had raised the issue of human rights. Justice Coulson said that he was quite satisfied that there was no potential infringement of his human rights under section 33 of the 1980 Act.
Reference was also made to the award of £5,000 from the CICB. The Claimant had said that she would pay this back. Justice Coulson said that this was of some relevance but not of any great significance. The money had been paid by the British taxpayer, not the Defendant. Neither could this award be regarded as the entirety of the Claimant’s claim on the basis of cases such as W v Meah [1986] 2 All ER 934 and Griffiths v Williams (Court of Appeal, 21st November 1995, unreported). The award of £5,000 was a factor in the Defendant’s favour, but not one to which any great weight could be given.
There was also additional prejudice to the Defendant insofar as the Claimant now had a conditional fee agreement, which she would not have had in 1990. There a decision of Smith v MOD [2005] EWHC 682 (QB) in which Justice Silber said that this was a potential point of prejudice, although he made no definitive finding on the point. Justice Coulson said that this was potentially a point of prejudice but it was of little weight overall.
The Defendant had made an offer to the Claimant, which was reported in an article on the Daily Mail Online. Justice Coulson rejected the suggestion that the reference by the Daily Mail had or could have any effect on the ability of the Defendant to receive a fair trial.
The Defendant argued that he had become rehabilitated. Justice Coulson emphatically rejected that submission. The Defendant did not have nor could ever have a clean slate. He was still under licence and that licence could be withdrawn at any time.
Conclusions as to the exercise of discretion
Justice Coulson concluded that the factors in the Claimant’s favour were more numerous and of significantly greater weight. Therefore section 33 of the Limitation Act 1980 would be exercised in her favour.
Justice Coulson would make one final point. It was implicit in the Defendant’s counsel’s submissions that if he exercised his discretion under section 33 in the
Claimant’s favour, there was a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the Defendant’s impecuniosity.
Justice Coulson said that section 33 only applied to personal injury and fatal accident claims, not other forms of civil proceedings. Secondly no decision under section 33 could be regarded as setting down definitive guidelines that were automatically applicable in another factual situation. Any decision under section 33 had to be regarded as a decision on the particular facts of that case, and nothing more.
Finally this was a wholly exceptional case.
Therefore Justice Coulson would exercise his discretion under section 33 and disapply the relevant limitation period.