MCDONNELL V CONGREGATION OF CHRISTIAN BROTHERS TRUSTEES AND OTHERS [2003] UKHL 63
FACTS:-
The Claimant was born in 1936 and was taken into the care of a local authority when he was a few weeks old. Between the ages of 5 and 11 he was placed by the local authority in a school run by the Second Defendants, the Trustees for the Charity of the Sisters of Charity of St Vincent de Paul, and from the age of 11 in a school run by the First Defendants, the Congregation of Christian Brothers Trustees. He alleged physical, emotional and sexual abuse at the hands of members of staff at both schools. He left school aged 15 on the 12th May 1951.
As at the 12th May 1951, section 2(1) of the Limitation Act 1939 provided for a six year limitation period for any action founded on tort, and by section 22 of that Act the six year period ran in the case of children from the date of their attaining the age of 21. The Claimant reached the age of 21 on the 6th January 1963.
Section 21 provided a time limit of one year for actions against public authorities, but neither of the Defendants in this case were public authorities.
Section 2(1) and 22 of the Limitation Act 1939 were amended by section 2 of the Law Reform (Limitations of Acts, etc.) Act 1954 so that the limitation for personal injury actions was reduced to three years. Section 7(1) of the 1954 Act made provision for persons being at that time still a minor to retain the benefit of the six year limitation period in the unamended section 2(1) of the 1939 Act. In addition the limitation protection for public authorities was removed.
On the 31st July 1963 Section 1 of the Limitation Act 1963 came into force providing an alternative limitation period for personal injury Claimants of 12 months from the date of knowledge of material facts. That 12 month period was amended by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1971 to allow a three year period from the date of knowledge of the material facts. Section 1 of the 1963 Act was replaced by Section 1 of the Limitation Act 1975, which made continued provision for a three year period from the date of disclosure of material facts by the insertion of section 2A of the 1939 Act, which was re-enacted as sections 11 and 14 of the Limitation Act 1980.
In August 2000, the Claimant commenced proceedings claiming damages against the Defendants. He claimed that he could rely on sections 11 and 14 of the 1980 Act since it was only in October or November 1997 that he had been made aware that claims might be made in respect of such conduct, as a result of reading a newspaper article.
His claim was struck out on limitation grounds at first instance and his appeal was dismissed by the Court of Appeal.
The Claimant appealed to the House of Lords.
HELD:-
Lord Bingham summarised the main aspects of the Claimant’s case. At the time of the abuse, the governing statute was the Limitation Act 1939. The cumulative effect of the provisions of the 1939 Act was plain. The Claimant was an infant until the 6th January 1957 (the age of 21), so the applicable limitation period was six years. So under the 1939 Act limitation would have expired on the 6th January 1963.
Lord Bingham then considered the way in which the law had developed. The 1954 Act had come into force on the 4th June 1954, during the time when the Claimant’s cause of action had not yet expired, and it made no difference to the limitation period in his case.
Section 26 of the 1939 Act had made provision for postponement of the running of time in the case of fraud, fraudulent concealment or mistake, but there was no comparable provision for a case where the Claimant was unaware that he had suffered any injury. In the case of Cartledge v E Jopling & Sons Limited [1963] AC 758 the Claimants had inhaled noxious dust during the course of their employment. They had been unable to show any breach of duty after the 1st October 1950 and they had issued proceedings on the 1st October 1956. The House of Lords had reluctantly held that the Limitation Act 1939 precluded them from making a claim.
Lord Bingham turned to the Limitation Act 1963, which had given broad effect to the recommendations in the Report of the Committee on Limitation Acts in Cases of Personal Injury (CMND 1829) published in September 1962. Section 1(3) provided for a “date of knowledge” test. The Claimant had to prove that the material facts relating to his cause of action were or included facts of a “decisive character which were at all times outside his knowledge (actual and constructive). That knowledge then had to fall either after the end of the three year period relating to the cause or action, or not earlier than 12 months before the end of that period, and in either case the date of knowledge could not be earlier than 12 months before the date on which the action was brought.
Section 6(1) stated that the Act would be retrospective, in other words it would apply to causes of action that accrued before the passing of the Act. However it did not apply to cases where there had been a judgment at first instance.
The Law Reform (Miscellaneous Provisions) Act 1971 then lengthened from 12 months to three years the period within which, after the date of knowledge, the Claimant might seek leave to bring proceedings.
The Law Reform Committee then recommended further refinements to the “date of knowledge” test and also proposed certain procedural changes. These included the abolition of the requirement to seek leave to sue after the expiry of the limitation period and the conferment of a discretion to override a defence of limitation.
The legislative response was the Limitation Act 1975 which enacted these proposals. The new discretion was inserted into the 1939 Act under Section 2D. Section 1 of the 1975 Act inserted a new section 2A into the 1939 Act, which disapplied Section 2 of the 1939 Act in relation to personal injury actions arising out of negligence, nuisance and breach of duty.
Section 2 of the 1975 Act made corresponding changes applicable to those under a disability and Section 3(1) stated that the provisions of the 1975 Act would be retrospective.
The Limitation Acts were then consolidated under the Limitation Act 1980. The date of knowledge was laid down in section 14 and the discretionary element in section 33.
Lord Bingham referred to the case of Arnold v Central Electricity Generating Board [1988] AC in which the Claimant suffered from asbestosis after working for the Electricity Board from 1938 to 1943. He died in May 1982 and proceedings were issued in April 1984. His action was barred by section 21 of the 1939 Act (the one year bar for claims against local authorities) one year after his employment had ceased.
The House of Lords said that the critical question was whether statutes subsequent to the Limitation Act 1939 (in this case the 1963 and 1975 Act) had the effect of removing retrospectively the bar to the widow’s action under section 21.
In that case Lord Bridge thought that the 1963 Act operated retrospectively to deprive a Defendant of an accrued time bar in respect of a personal injury claim where the cause of action had accrued since the 4th June 1954 (the date when the Law Reform (Limitations of Acts, etc.) Act 1954 had come into force)
The key question was to determine the extent to which section 3 of the 1975 Act was intended to give retrospective effect to the earlier sections embodied by way of amendment to the 1939 Act. Section 3 was clearly intended to have some retrospective effect but the question was - how much?
Lord Bridge had said that the court should construe the 1975 Act in the light of the recommendations of the Law Reform Committee. They had intended to cure defects in the law between 1954 and 1975. However there was no hint in their report that the retrospective operation of the 1963 Act was an aspect of the law calling for any remedial action. A statute affecting substantive rights was not to be construed as having retrospective operation unless it clearly appeared to have been so intended. Lord Bridge had found nothing in the language or purpose of 1975 Act which led to the conclusion that Defendant previously entitled to rely on the accrued six year and one year time bars under the original 1939 Act (and which had been left intact by the 1963 Act) were intended to be deprived of those rights.
Lord Bingham said that counsel for the Claimant had submitted that Parliament’s intention when legislating in 1963 was to rectify the defect in the law exposed by the case of Cartledge v E Jopling & Sons Limited [1963] AC 758. She referred to material from Hansard. Lord Bingham said that he was not persuaded that the House should depart from an authoritative ruling on statutory construction (Arnold v Central Electricity Generating Board [1988] AC) made at a time, when material from Hansard was not regarded as a permissible aid to construction. Secondly he could find nothing in Hansard that referred to the issue of whether the remedial legislation was intended to override an accrued statutory time bar to pre 1954 six year claims.
The second point made by counsel was that this case could be distinguished from Arnold since that case concerned section 21 of the 1939 Act (the one year bar for claims against local authorities). However the House of Lord in Arnold had considered the retrospectivity issue in the context of other pre-1954 six year claims. The Claimant’s limitation period straddled the passing of the 1954 Act but it was, although deferred, still a six year claim under the 1939 Act.
Counsel for the Claimant also submitted that section 7(2)(a) of the 1963 Act “an action could have been brought after the end of the period of three years from the date on which that cause of action accrued.” That could be understood as covering any period after the end of three years, including a period of six years. Lord Bingham agreed with that point if section 7(2)(a) was read in isolation. However he said that there was ground for concluding that Parliament was focusing on the three year and not the six year claim when it passed the 1963 Act.
Finally counsel for the Claimant relied on the broad and unqualified language of the new section 2A of the 1963 Act inserted by section 1 of the 1975 Act. This referred to “any action for damage for negligence etc.” However there was nothing in the Law Reform Committee’s 1974 report to which the 1975 Act gave effect, to suggest any intention to go further than the 1963 Act had gone, by overriding accrued statutory bars to pre-1954 six year claims.
Lord Bingham commented that sympathy for the possible injustice suffered by the Claimant must be tempered by recognition of the almost impossible task the respondents would face in seeking to resist a claim of this kind after 50 years.
The Claimant’s counsel had indicated that if she succeeded in her main arguments, then she would have wished to contend that the decision of the House of Lords in Stubbings v Webb [1993] AC 498 presented no insuperable obstacle to the Claimant’s claim. Lord Bingham said that the point was arguable but did not express any opinion on the issue.
Lord Nicholls, Lord Hobhouse and Lord Rodger agreed with Lord Bingham and would dismiss the appeal. Lord Steyn said that it was permissible to use Hansard to identify the mischief at which a statute was aimed (Pepper v Hart [1993] AC 593) however the ratio in that case was restricted to its particular facts and a broader interpretation gave rise to serious conceptual and constitutional difficulties.
The appeal would be dismissed.
FACTS:-
The Claimant was born in 1936 and was taken into the care of a local authority when he was a few weeks old. Between the ages of 5 and 11 he was placed by the local authority in a school run by the Second Defendants, the Trustees for the Charity of the Sisters of Charity of St Vincent de Paul, and from the age of 11 in a school run by the First Defendants, the Congregation of Christian Brothers Trustees. He alleged physical, emotional and sexual abuse at the hands of members of staff at both schools. He left school aged 15 on the 12th May 1951.
As at the 12th May 1951, section 2(1) of the Limitation Act 1939 provided for a six year limitation period for any action founded on tort, and by section 22 of that Act the six year period ran in the case of children from the date of their attaining the age of 21. The Claimant reached the age of 21 on the 6th January 1963.
Section 21 provided a time limit of one year for actions against public authorities, but neither of the Defendants in this case were public authorities.
Section 2(1) and 22 of the Limitation Act 1939 were amended by section 2 of the Law Reform (Limitations of Acts, etc.) Act 1954 so that the limitation for personal injury actions was reduced to three years. Section 7(1) of the 1954 Act made provision for persons being at that time still a minor to retain the benefit of the six year limitation period in the unamended section 2(1) of the 1939 Act. In addition the limitation protection for public authorities was removed.
On the 31st July 1963 Section 1 of the Limitation Act 1963 came into force providing an alternative limitation period for personal injury Claimants of 12 months from the date of knowledge of material facts. That 12 month period was amended by Section 1 of the Law Reform (Miscellaneous Provisions) Act 1971 to allow a three year period from the date of knowledge of the material facts. Section 1 of the 1963 Act was replaced by Section 1 of the Limitation Act 1975, which made continued provision for a three year period from the date of disclosure of material facts by the insertion of section 2A of the 1939 Act, which was re-enacted as sections 11 and 14 of the Limitation Act 1980.
In August 2000, the Claimant commenced proceedings claiming damages against the Defendants. He claimed that he could rely on sections 11 and 14 of the 1980 Act since it was only in October or November 1997 that he had been made aware that claims might be made in respect of such conduct, as a result of reading a newspaper article.
His claim was struck out on limitation grounds at first instance and his appeal was dismissed by the Court of Appeal.
The Claimant appealed to the House of Lords.
HELD:-
Lord Bingham summarised the main aspects of the Claimant’s case. At the time of the abuse, the governing statute was the Limitation Act 1939. The cumulative effect of the provisions of the 1939 Act was plain. The Claimant was an infant until the 6th January 1957 (the age of 21), so the applicable limitation period was six years. So under the 1939 Act limitation would have expired on the 6th January 1963.
Lord Bingham then considered the way in which the law had developed. The 1954 Act had come into force on the 4th June 1954, during the time when the Claimant’s cause of action had not yet expired, and it made no difference to the limitation period in his case.
Section 26 of the 1939 Act had made provision for postponement of the running of time in the case of fraud, fraudulent concealment or mistake, but there was no comparable provision for a case where the Claimant was unaware that he had suffered any injury. In the case of Cartledge v E Jopling & Sons Limited [1963] AC 758 the Claimants had inhaled noxious dust during the course of their employment. They had been unable to show any breach of duty after the 1st October 1950 and they had issued proceedings on the 1st October 1956. The House of Lords had reluctantly held that the Limitation Act 1939 precluded them from making a claim.
Lord Bingham turned to the Limitation Act 1963, which had given broad effect to the recommendations in the Report of the Committee on Limitation Acts in Cases of Personal Injury (CMND 1829) published in September 1962. Section 1(3) provided for a “date of knowledge” test. The Claimant had to prove that the material facts relating to his cause of action were or included facts of a “decisive character which were at all times outside his knowledge (actual and constructive). That knowledge then had to fall either after the end of the three year period relating to the cause or action, or not earlier than 12 months before the end of that period, and in either case the date of knowledge could not be earlier than 12 months before the date on which the action was brought.
Section 6(1) stated that the Act would be retrospective, in other words it would apply to causes of action that accrued before the passing of the Act. However it did not apply to cases where there had been a judgment at first instance.
The Law Reform (Miscellaneous Provisions) Act 1971 then lengthened from 12 months to three years the period within which, after the date of knowledge, the Claimant might seek leave to bring proceedings.
The Law Reform Committee then recommended further refinements to the “date of knowledge” test and also proposed certain procedural changes. These included the abolition of the requirement to seek leave to sue after the expiry of the limitation period and the conferment of a discretion to override a defence of limitation.
The legislative response was the Limitation Act 1975 which enacted these proposals. The new discretion was inserted into the 1939 Act under Section 2D. Section 1 of the 1975 Act inserted a new section 2A into the 1939 Act, which disapplied Section 2 of the 1939 Act in relation to personal injury actions arising out of negligence, nuisance and breach of duty.
Section 2 of the 1975 Act made corresponding changes applicable to those under a disability and Section 3(1) stated that the provisions of the 1975 Act would be retrospective.
The Limitation Acts were then consolidated under the Limitation Act 1980. The date of knowledge was laid down in section 14 and the discretionary element in section 33.
Lord Bingham referred to the case of Arnold v Central Electricity Generating Board [1988] AC in which the Claimant suffered from asbestosis after working for the Electricity Board from 1938 to 1943. He died in May 1982 and proceedings were issued in April 1984. His action was barred by section 21 of the 1939 Act (the one year bar for claims against local authorities) one year after his employment had ceased.
The House of Lords said that the critical question was whether statutes subsequent to the Limitation Act 1939 (in this case the 1963 and 1975 Act) had the effect of removing retrospectively the bar to the widow’s action under section 21.
In that case Lord Bridge thought that the 1963 Act operated retrospectively to deprive a Defendant of an accrued time bar in respect of a personal injury claim where the cause of action had accrued since the 4th June 1954 (the date when the Law Reform (Limitations of Acts, etc.) Act 1954 had come into force)
The key question was to determine the extent to which section 3 of the 1975 Act was intended to give retrospective effect to the earlier sections embodied by way of amendment to the 1939 Act. Section 3 was clearly intended to have some retrospective effect but the question was - how much?
Lord Bridge had said that the court should construe the 1975 Act in the light of the recommendations of the Law Reform Committee. They had intended to cure defects in the law between 1954 and 1975. However there was no hint in their report that the retrospective operation of the 1963 Act was an aspect of the law calling for any remedial action. A statute affecting substantive rights was not to be construed as having retrospective operation unless it clearly appeared to have been so intended. Lord Bridge had found nothing in the language or purpose of 1975 Act which led to the conclusion that Defendant previously entitled to rely on the accrued six year and one year time bars under the original 1939 Act (and which had been left intact by the 1963 Act) were intended to be deprived of those rights.
Lord Bingham said that counsel for the Claimant had submitted that Parliament’s intention when legislating in 1963 was to rectify the defect in the law exposed by the case of Cartledge v E Jopling & Sons Limited [1963] AC 758. She referred to material from Hansard. Lord Bingham said that he was not persuaded that the House should depart from an authoritative ruling on statutory construction (Arnold v Central Electricity Generating Board [1988] AC) made at a time, when material from Hansard was not regarded as a permissible aid to construction. Secondly he could find nothing in Hansard that referred to the issue of whether the remedial legislation was intended to override an accrued statutory time bar to pre 1954 six year claims.
The second point made by counsel was that this case could be distinguished from Arnold since that case concerned section 21 of the 1939 Act (the one year bar for claims against local authorities). However the House of Lord in Arnold had considered the retrospectivity issue in the context of other pre-1954 six year claims. The Claimant’s limitation period straddled the passing of the 1954 Act but it was, although deferred, still a six year claim under the 1939 Act.
Counsel for the Claimant also submitted that section 7(2)(a) of the 1963 Act “an action could have been brought after the end of the period of three years from the date on which that cause of action accrued.” That could be understood as covering any period after the end of three years, including a period of six years. Lord Bingham agreed with that point if section 7(2)(a) was read in isolation. However he said that there was ground for concluding that Parliament was focusing on the three year and not the six year claim when it passed the 1963 Act.
Finally counsel for the Claimant relied on the broad and unqualified language of the new section 2A of the 1963 Act inserted by section 1 of the 1975 Act. This referred to “any action for damage for negligence etc.” However there was nothing in the Law Reform Committee’s 1974 report to which the 1975 Act gave effect, to suggest any intention to go further than the 1963 Act had gone, by overriding accrued statutory bars to pre-1954 six year claims.
Lord Bingham commented that sympathy for the possible injustice suffered by the Claimant must be tempered by recognition of the almost impossible task the respondents would face in seeking to resist a claim of this kind after 50 years.
The Claimant’s counsel had indicated that if she succeeded in her main arguments, then she would have wished to contend that the decision of the House of Lords in Stubbings v Webb [1993] AC 498 presented no insuperable obstacle to the Claimant’s claim. Lord Bingham said that the point was arguable but did not express any opinion on the issue.
Lord Nicholls, Lord Hobhouse and Lord Rodger agreed with Lord Bingham and would dismiss the appeal. Lord Steyn said that it was permissible to use Hansard to identify the mischief at which a statute was aimed (Pepper v Hart [1993] AC 593) however the ratio in that case was restricted to its particular facts and a broader interpretation gave rise to serious conceptual and constitutional difficulties.
The appeal would be dismissed.