HALFORD V BROOKS AND ANOTHER [1991] 1 WLR 428
FACTS:-
In April 1978, the Claimant’s 16 year old daughter was strangled and stabbed to death. The Second Defendant was a schoolboy who confessed to her murder, but who then withdrew his confession alleging that his stepfather (the First Defendant) was responsible, and that he had been co-erced into giving fase evidence. However he admitted that he had been present at the murder and that he had inflicted superficial wounds on the victim. The First Defendant denied the crime and the Second Defendant was acquitted. In October 1985 she was advised of the availability of a civil remedy pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The starting point upon the issue of limitation was Section 11 of the Limitation Act 1980, which provided that where a person was injured as a result of any breach of duty and that person died within three years of the injury:-
“The period applicable as respects the cause of action surviving for the benefit of his estate by virtue of Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934) shall be three years from (a) the date of death; or (b) the date of the personal representatives’ knowledge, whichever is the later.”
She applied for public funding but was not granted a certificate until March 1987. In April 1987 she issued proceedings against both Defendants.
The defence of limitation was raised. At first instance the judge held that the Claimant had sufficient knowledge within the meaning of Section 14 of the Limitation Act 1980 to launch a civil action, and it would be inequitable to disapply limitation under Section 33.
JUDGMENT:-
Lord Justice Russell went over the history of the case and said that since the material events, substantial evidence had emerged of the First and Second Defendants’ guilt. He then turned to the issue of knowledge. In the case of Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352 the Court of Appeal considered the impact of section 14(1)(b) and held that knowledge was something that was to be attributed to a Claimant, when he came to know that his injury was capable of being attributed to some act or omission of the Defendants. The Claimant’s counsel submitted that he could invoke Section 14(3), which said that “knowledge” could come from “medical or other appropriate expert advice.” Such expert advice would include the advice of solicitors, and the Claimant had only received advice from those solicitors in 1985, less than three years before she issued proceedings.
Russell LJ said that in the case of Fowell v National Coal Board (unreported) 21 May 1986 the Court of Appeal had said that a party’s solicitors was not an expert within the meaning of Section 14(3)(b) of the Limitation Act 1980. The Claimant plainly acquired knowledge at the conclusion of the Second Defendant’s trial in November 1978. Therefore section 14 of the 1980 Act was not available to the Claimant.
Russell LJ now turned to Section 33 of the 1980 Act. He made a number of observations on this section.
In this case the delay between expiration of the primary limitation and the issue of the writ was over six years, and by the time the case could get to trial, the court would be concerned with events that took place a very long time ago. This would affect the cogency of the evidence. However in this case, Russell LJ said that a fair trial could take place. In relation to the Second Defendant, he had admitted liability to a limited extent, since on any view, he had assaulted the Claimant’s daughter.
Section 33(3)(a) required the court to have regard to the reasons for the delay. The Claimant was not aware that a civil remedy was available to her until she consulted new solicitors and there was no suggestion that there was any delay thereafter. She acted promptly once she knew of the existence of the right to sue for damages, and that was a circumstance to be taken into account under Section 33(3)(e). The reality of the case was that she did not know of the existence of her remedy and this Russell LJ found to be entirely understandable in one, with her background, who was not versed in the law.
Russell LJ said that he had dealt with paragraphs (a), (b), (e) and (f) of Section 33(3). That left paragraph (d) (duration of disability) which had no relevance and then paragraph (c), the conduct of the Defendants.
The Claimant’s counsel had argued that the conduct of the Second Defendant in trying to coerce the First Defendant into giving false evidence was a material consideration for the purposes of Section 33(3)(c). Russell LJ did not agree. Paragraph (c) was concerned with purely procedural matters, where the forensic tactics of a Defendant might lead to delay.
The Defendants’ counsel advanced the argument that since their clients were probably impecunious, there was no material benefit to the Claimant and consequently that was a material consideration for Section 33(3). Russell LJ found that argument unattractive.
Russell LJ said that the assessment of the conflicting factors under Section 33(3) had to be made upon a proper appraisal of the facts. Firstly the evidence was unlikely to be significantly diminished because the action had not been brought within three years. The body of the victim was no longer available for examination and the police had lost the weapon and clothing found at the Defendants’ house. These had occurred within the period of limitation or very shortly thereafter. The evidence of the two Defendants would lose little of its cogency by reason of the passage of time.
In relation to delay there was no evidence that the Claimant was responsible for the delay. Therefore Section 33 would be exercised in the Claimant’s favour.
Lord Justice Nourse agreed that the trial judge had misdirected himself, insofar as he thought that he was not entitled to take account of the Claimant’s ignorance legal rights at the Section 33(3)(a) stage any more than at the Section 14 (date of knowledge) stage. However that was not a correct view of paragraph (a). There was no restriction on the reasons for the delay to which the court had to have regard.
Nourse LJ considered the history and effect of Section 33 and the words of Lord Diplock in Thompson v Brown [1981] 1 WLR 744. In this case the Claimant sole reason for delay was her ignorance of her legal rights. She had been advised to make a claim to the Criminal Injuries Compensation Board, but not to make a civil claim. This was hardly surprising since civil actions in relation to criminal offences were little known to the legal profession in 1980.
In relation to the cogency of the evidence, Nourse LJ agreed with Russell LJ that there was a far smaller risk to the Defendants of not having a fair trial.
Nourse LJ said that if it could be shown that the Claimant’s sole motive in bringing a compensation claim was to get around the fact that the criminal prosecution was failed, that might be a powerful ground for refusing to apply discretion.
If this had been a run of the mill negligence or breach of duty case, it would have been very difficult to see how the limitation bar could be disapplied. However the circumstances here were exceptional. Therefore it would be equitable to allow the action to proceed.
Lord Donaldson considered Section 14(1) of the Limitation Act 1980 “knowledge.” May LJ had said in the case of Davis v Ministry of Defence (unreported) 26 July 1985 that knowledge was an ordinary English word with a clear meaning to which one must give full effect. Reasonable belief or suspicion was not enough. However in Davis the facts were exceptional. The Claimant received expert advice that his dermatitis was not due to any act or omission of his employers. However later the advice changed, and it was held that he did not have “knowledge” for the purposes of the Limitation Act 1980, until that advice changed.
“Knowledge” did not mean “know for certain and beyond possibility of contradiction”. It did however mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ.” The only thing that the Claimant did not know was that the infliction of the injuries gave rise to a civil cause of action for breach of duty, namely trespass to the person. It was specifically declared by the subsection to Section 14 that this kind of knowledge was irrelevant.
In relation to Section 33, the Claimant had been clearly advised by her solicitors and counsel not to bring a civil claim, only a CICB claim. She had accepted that advice. It was only in July 1985 that they advised her that there was another civil remedy.
The real question was whether a fair trial could be held, but this was a very unusual case, and a fair trial would not be precluded by the passage of time.
The argument advanced by the Defendants that section 33 should not be exercised in the Claimant’s favour because they had no money, was deeply unattractive. The court was bidden to do what was equitable and fair. It was not certain whether the Defendants did in fact have no money. In addition the litigation was back by the Legal Aid Board.
The statutory time limit should be disapplied.
FACTS:-
In April 1978, the Claimant’s 16 year old daughter was strangled and stabbed to death. The Second Defendant was a schoolboy who confessed to her murder, but who then withdrew his confession alleging that his stepfather (the First Defendant) was responsible, and that he had been co-erced into giving fase evidence. However he admitted that he had been present at the murder and that he had inflicted superficial wounds on the victim. The First Defendant denied the crime and the Second Defendant was acquitted. In October 1985 she was advised of the availability of a civil remedy pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The starting point upon the issue of limitation was Section 11 of the Limitation Act 1980, which provided that where a person was injured as a result of any breach of duty and that person died within three years of the injury:-
“The period applicable as respects the cause of action surviving for the benefit of his estate by virtue of Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934) shall be three years from (a) the date of death; or (b) the date of the personal representatives’ knowledge, whichever is the later.”
She applied for public funding but was not granted a certificate until March 1987. In April 1987 she issued proceedings against both Defendants.
The defence of limitation was raised. At first instance the judge held that the Claimant had sufficient knowledge within the meaning of Section 14 of the Limitation Act 1980 to launch a civil action, and it would be inequitable to disapply limitation under Section 33.
JUDGMENT:-
Lord Justice Russell went over the history of the case and said that since the material events, substantial evidence had emerged of the First and Second Defendants’ guilt. He then turned to the issue of knowledge. In the case of Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352 the Court of Appeal considered the impact of section 14(1)(b) and held that knowledge was something that was to be attributed to a Claimant, when he came to know that his injury was capable of being attributed to some act or omission of the Defendants. The Claimant’s counsel submitted that he could invoke Section 14(3), which said that “knowledge” could come from “medical or other appropriate expert advice.” Such expert advice would include the advice of solicitors, and the Claimant had only received advice from those solicitors in 1985, less than three years before she issued proceedings.
Russell LJ said that in the case of Fowell v National Coal Board (unreported) 21 May 1986 the Court of Appeal had said that a party’s solicitors was not an expert within the meaning of Section 14(3)(b) of the Limitation Act 1980. The Claimant plainly acquired knowledge at the conclusion of the Second Defendant’s trial in November 1978. Therefore section 14 of the 1980 Act was not available to the Claimant.
Russell LJ now turned to Section 33 of the 1980 Act. He made a number of observations on this section.
- The section gave a very wide discretion to the court, the exercise of which must always depend upon the individual circumstances of the case.
- This court should be slow to interfere with the exercise of the judge’s discretion unless it could be shown that the judge erred in principle or that his decision was manifestly wrong.
- It should always be borne in mind that a direction under Section 33 would always be highly prejudicial to the Defendant, although a Claimant with an unassailable case would also suffer prejudice if he could not pursue his remedy.
In this case the delay between expiration of the primary limitation and the issue of the writ was over six years, and by the time the case could get to trial, the court would be concerned with events that took place a very long time ago. This would affect the cogency of the evidence. However in this case, Russell LJ said that a fair trial could take place. In relation to the Second Defendant, he had admitted liability to a limited extent, since on any view, he had assaulted the Claimant’s daughter.
Section 33(3)(a) required the court to have regard to the reasons for the delay. The Claimant was not aware that a civil remedy was available to her until she consulted new solicitors and there was no suggestion that there was any delay thereafter. She acted promptly once she knew of the existence of the right to sue for damages, and that was a circumstance to be taken into account under Section 33(3)(e). The reality of the case was that she did not know of the existence of her remedy and this Russell LJ found to be entirely understandable in one, with her background, who was not versed in the law.
Russell LJ said that he had dealt with paragraphs (a), (b), (e) and (f) of Section 33(3). That left paragraph (d) (duration of disability) which had no relevance and then paragraph (c), the conduct of the Defendants.
The Claimant’s counsel had argued that the conduct of the Second Defendant in trying to coerce the First Defendant into giving false evidence was a material consideration for the purposes of Section 33(3)(c). Russell LJ did not agree. Paragraph (c) was concerned with purely procedural matters, where the forensic tactics of a Defendant might lead to delay.
The Defendants’ counsel advanced the argument that since their clients were probably impecunious, there was no material benefit to the Claimant and consequently that was a material consideration for Section 33(3). Russell LJ found that argument unattractive.
Russell LJ said that the assessment of the conflicting factors under Section 33(3) had to be made upon a proper appraisal of the facts. Firstly the evidence was unlikely to be significantly diminished because the action had not been brought within three years. The body of the victim was no longer available for examination and the police had lost the weapon and clothing found at the Defendants’ house. These had occurred within the period of limitation or very shortly thereafter. The evidence of the two Defendants would lose little of its cogency by reason of the passage of time.
In relation to delay there was no evidence that the Claimant was responsible for the delay. Therefore Section 33 would be exercised in the Claimant’s favour.
Lord Justice Nourse agreed that the trial judge had misdirected himself, insofar as he thought that he was not entitled to take account of the Claimant’s ignorance legal rights at the Section 33(3)(a) stage any more than at the Section 14 (date of knowledge) stage. However that was not a correct view of paragraph (a). There was no restriction on the reasons for the delay to which the court had to have regard.
Nourse LJ considered the history and effect of Section 33 and the words of Lord Diplock in Thompson v Brown [1981] 1 WLR 744. In this case the Claimant sole reason for delay was her ignorance of her legal rights. She had been advised to make a claim to the Criminal Injuries Compensation Board, but not to make a civil claim. This was hardly surprising since civil actions in relation to criminal offences were little known to the legal profession in 1980.
In relation to the cogency of the evidence, Nourse LJ agreed with Russell LJ that there was a far smaller risk to the Defendants of not having a fair trial.
Nourse LJ said that if it could be shown that the Claimant’s sole motive in bringing a compensation claim was to get around the fact that the criminal prosecution was failed, that might be a powerful ground for refusing to apply discretion.
If this had been a run of the mill negligence or breach of duty case, it would have been very difficult to see how the limitation bar could be disapplied. However the circumstances here were exceptional. Therefore it would be equitable to allow the action to proceed.
Lord Donaldson considered Section 14(1) of the Limitation Act 1980 “knowledge.” May LJ had said in the case of Davis v Ministry of Defence (unreported) 26 July 1985 that knowledge was an ordinary English word with a clear meaning to which one must give full effect. Reasonable belief or suspicion was not enough. However in Davis the facts were exceptional. The Claimant received expert advice that his dermatitis was not due to any act or omission of his employers. However later the advice changed, and it was held that he did not have “knowledge” for the purposes of the Limitation Act 1980, until that advice changed.
“Knowledge” did not mean “know for certain and beyond possibility of contradiction”. It did however mean “know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ.” The only thing that the Claimant did not know was that the infliction of the injuries gave rise to a civil cause of action for breach of duty, namely trespass to the person. It was specifically declared by the subsection to Section 14 that this kind of knowledge was irrelevant.
In relation to Section 33, the Claimant had been clearly advised by her solicitors and counsel not to bring a civil claim, only a CICB claim. She had accepted that advice. It was only in July 1985 that they advised her that there was another civil remedy.
The real question was whether a fair trial could be held, but this was a very unusual case, and a fair trial would not be precluded by the passage of time.
The argument advanced by the Defendants that section 33 should not be exercised in the Claimant’s favour because they had no money, was deeply unattractive. The court was bidden to do what was equitable and fair. It was not certain whether the Defendants did in fact have no money. In addition the litigation was back by the Legal Aid Board.
The statutory time limit should be disapplied.