Date: Tue, 8 Jul 2008 14:12

From: James Lee

Subject: Bye-bye limitation?

Dear All,

Thanks to Prof Tettenborn for drawing this decision to our attention. I am inclined to agree with his assessment. The judgment may be found here. Particularly remarkable, I think, is the approach to s.33(3)(a) of the Act, which provides that:

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to (a) the length of, and the reasons for, the delay on the part of the plaintiff;

Coulson J’s brief consideration of these issues is as follows:

F1. Length of Delay

46. The claim form was issued 16 years and 10 months after the assault. That means that it was issued 13 years and 10 months after the expiry of the three year limitation period on 21 February 1991. This is plainly a very long delay, which brings with it the additional burden on the claimant of demonstrating that such a long period should be set aside, as well as the increased risk of prejudice to the defendant.

47. Mr McLaughlin pointed out that, in Mold v Hayton and Newson [2000] LTL 17 April 2000, the Court of Appeal referred to a delay of 18 years as "a huge delay" and held that, if such an extension was granted by the court, the judge had a duty to explain his reasons "with meticulous care". I am not sure anything is added by describing this as a "huge" delay as opposed to a "very long" delay. However, it is right to point out that such periods are not unknown, even within the statutory limitation regime. Pursuant to the Latent Damage Act 1986, the over-riding or long-stop period is 15 years from the date of the negligent act, at the end of which, in certain circumstances, a claim can still be made.

48. Accordingly, it seems to me that what matters most is not the length of the delay itself, but the reasons for that delay and its potentially prejudicial effect.

  

E2. The Reasons for Delay

...

50. What was the reason for the claimant's delay? The evidence is clear: the principal reason why the claimant did not issue civil proceedings against the defendant was because he was in prison, serving a life sentence, and had no money with which to satisfy any judgment which might have been made against him. I find as a fact that that was the principal reason for the delay.

51. For the avoidance of doubt, I also consider that this reason was genuine and entirely understandable. The claimant did not understand that the defendant would ever be at liberty again and was therefore never going to be in a position to meet any judgment that she might obtain. Thus, so it seems to me, the claimant's main reason for dismissing any prospect of instituting any civil proceedings against the defendant was entirely understandable.

52. There is a further point. It is clear from her statement of 3 April 2008 that, in the years after the assault, the claimant wanted to rebuild her life and try to put the assault and its effects behind her. Dr Reveley described this as "blocking it out". I am quite sure that 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.

Surely this case represents the manifestation of that very "risk of prejudice to the defendant", even though he is a very bad man? This judgment would seem to encourage claimants to keep track of those who have done them harm to see whether they subsequently come into money, whether through the lottery, inheritance, insurance, a TV show, a lucky bet on the tennis or even earning it (or perhaps, I suppose, from a successful compensation claim of their own). I expect that many exam questions will offer variations on this theme next year.

Best wishes,
James Lee

--
James Lee
Lecturer
Birmingham Law School  
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

-------------------------------------------------------------------------------
From: Andrew Tettenborn
Sent: 08 July 2008 12:22
Subject: bye-bye limitation?

A v Hoare [2008] UKHL 6, [2008] 2 WLR 311 comes back to the English High Court today with a predictable but appalling decision by Coulson J: see [2008] EWHC 1573 (QB). Following the HL decision earlier this year that s.33 of the Limitation Act 1980 applied to deliberate torts such as sexual assault, the question was whether to disapply limitation under the section so as to allow this stale 20-year-old claim to be raked over the coals again -- and incidentally by someone who wasn't originally uncompensated, but in fact received a reasonable sum from the CICA.

Yes, says Coulson J. Why? Well, Hoare was very bad and therefore he doesn't deserve freedom from vexation; and the fact that he won the lottery makes it an exceptional case.

I find myself unattracted by either argument. I can't see why deliberate acts, even vile ones, should effectively negate the right of the defendant to put the past behind him and say to the claimant "That's tough, but now get on with your life" -- which is effectively the object (and a highly praiseworthy one) of limitation law. And while winning the lottery is exceptional, making the change from impecunious to relatively wealthy isn't. For all the protestations that the case is thoroughly unusual and doesn't open the floodgates, as I see it, it isn't and does. Essentially it's going to be very difficult in future for any defendant to resist the claimant saying "He didn't have any money then but he does now and therefore I'd like to sue him."

<<<< Previous Message  ~  Index  ~  Next Message >>>>>