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Neutral Citation Number: [2009] EWCA Civ 419 |
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Case No: B2/2008/1221, 1221 (A) |
IN THE SUPREME COURT
OF
JUDICATURE
COURT
OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE TRIGGER)
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
29th January 2009 |
B e f o r e :
LORD NEUBERGER
LORD
JUSTICE RIX
and
MR
JUSTICE
BENNETT
____________________
Between:
____________________
(DAR Transcript
of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Mr S Simblet (instructed by Jackson & Canter) appeared on behalf
of
the Appellant.
Mr J Roussak (instructed by the Treasury Solicitor) appeared on behalf
of
the Respondent.
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord
Justice Rix
:
- This is an appeal with the leave
of
the judge, HHJ Trigger, from a ruling
of
his, given on 2 April 2008, whereby he determined a preliminary issue relating to whether this action, which has been brought under section 7(1)
of
the Human Rights Act 1998, is in time.
- The background
of
the claim is as follows. The claimant is still a very young child, some six years old, the son
of
a man who committed suicide in prison in Liverpool when in custody there on 22 October 2003. The claimant was then some 20 months old. The claimant brings his claim by means
of
his mother, who is his litigation friend for the purposes
of
these proceedings. The claim is brought against the
Ministry of Justice
, presumably because that is the department
of
state with responsibility for prisons. The claim is brought under Article 2 and/or Article 8
of
the European Convention on Human Rights. The suicide having taken place on 22 October 2003, proceedings were not ultimately issued until 3 September 2007, not very far short
of
four years later. The time limit for bringing such section 7 proceedings under the Human Rights Act 1998 is one year or such longer period as the court might consider equitable having regard to all the circumstances.
- I will refer in due course to the precise provisions
of
section 7 later in this judgment. The essence
of
Mr Simblet's primary point on behalf
of
the claimant (here the appellant) is that the time limit in section 7(5)
of
HRA 1998 is part
of
a jurisdictional package which goes to the jurisdiction
of
the court, so that if a time bar point is to be made a matter
of
challenge by the defendant, as it is in this case, then the defendant must bring that challenge by operating the procedure under CPR Part 11, whereby a defendant seeks to challenge the jurisdiction
of
the court and cannot do it by the means by which the defendant here sought to do it, namely by pleading a defence. So that is the essential legal issue - although there are also points about the exercise
of
discretion under section 7(5)(b) - which gives the focus to the further background facts which I must now mention.
- Following the death
of
the father there was an internal prison investigation. That was completed by 17 December 2003: that is to say, within two months
of
the death. The report which emerged from that enquiry, published on that date, was in the hands
of
the mother's former solicitors by 23 August 2004, that is, some eight months later, but still just about two months within the primary period for bringing proceedings under section 7(5). That primary period
of
a year expired then on 21 October 2004. In due course an inquest was held between 11 and 21 July 2005. The outcome
of
the inquest was to express some strong criticisms
of
the procedures which had obtained in the prison and which were considered by the inquest jury to be causatively relevant to the father's suicide. That inquest verdict was much more explicit in its criticisms
of
the prison procedures than the internal prison report had been, but even the prison report in its conclusions had emphasised, in its paragraph J.6, that:
"A number
of
prisoners have stated that staff were present when [the father] threatened to kill himself, staff say that this was not the case. There is no independent evidence to support either position."
- The mother, represented by solicitors, was a party to the inquest and present at it. Therefore she knew its outcome at that time in July 2005 when the verdict was given. It was a little less than three months later, on 10 October 2005, that the mother's solicitors wrote a "letter before action", if it can be so described, to the Treasury Solicitor, stating that damages were claimed for breach
of
the father's human rights and stressing the jury's findings that the father had expressed an intent to kill himself. The letter referred to the inquest and to the jury's long narrative verdict detailing numerous problems with the care which the father had received in prison. It went on to give further details
of
the inquest's findings. It also stressed the short-form verdict that the father:
"took his life whilst emotionally unbalanced and in part because the risk
of
his doing so was not recognised. Therefore appropriate precautions were not taken to prevent him doing so."
The letter concluded by saying that the writer trusted that liability for the father's death would not be an issue and that the solicitors looked forward to receiving a decision as soon as possible, and not later than three months from the date
of
that letter.
- There was a reply after two months, on 16 December 2005, confirming that the Treasury Solicitor had been formally instructed and that a named individual would be dealing with the matter, and asking for an extension
of
time for a reply. On 21 December 2005 an extension was agreed until 27 February 2006 for a decision on liability. Before that decision was given, on 15 February 2006 the mother's solicitors wrote again to the Treasury Solicitor pointing out that they were now in receipt
of
public funding to bring a claim against the Home Office and would therefore be grateful for a decision within the next 21 days. That deadline, if it can be referred to as such, was just, if barely, met in the Treasury Solicitor's reply
of
7 March 2006. That said that a very thorough investigation had been conducted and expressed gratitude for patience. However, the reply was an uncompromising repudiation
of
any liability; it was said that the inquest jury's findings were unlikely to be replicated by a trial judge; and it was the Treasury Solicitor's strongly held view that the jury had arrived at incongruous and unsupportable opinions.
- The Treasury Solicitor's letter then, in five numbered paragraphs, gave a detailed riposte to the various specific allegations raised in the letter before action
of
the previous October. The riposte included the contention that the evidence did not support any finding that threats to kill himself had been made by the father and added that it was a still further step to prove that any such threats, if any had been made, were heard by members
of
staff or reported to them by others.
- So that was the position in March 2006. The matter then appears to have been referred to counsel, who requested a transcript
of
the inquest. That transcript was sought on 14 July 2006 but not received until 8 March 2007. The papers were then sent to counsel for the purposes
of
pleading the case and after some toing and froing the claim particulars were finally settled and received back by the solicitors by 8 August 2007. The claim documents were sent to the court for issue on 23 August 2007 and, as I have already remarked, the claim was finally issued on 3 September 2007, nearly three years out
of
time.
- Those are the basic facts
of
the case. The judge considered those facts and dealt with the discretion with which he was clothed by section 7(5)(b) in the following way (no jurisdictional point was raised before him at that time): he referred to the decision
of
Sir Michael Turner in Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133; [2007] 1 WLR 163 as authority for the principle that it would not be inappropriate to have regard to factors set out in section 33(3)
of
the Limitation Act 1980, which governs the court's discretion to set aside a prima facie right
of
limitation, for instance under section 11
of
that Act. He then turned to the various factors in the case as follows. He bore in mind that the claimant was himself a child and that if his claim had been under the Fatal Accidents Act or in negligence no time would have been running against the child until his majority, still 12 years away at the time
of
the judge's decision. He specifically said that that was a factor that he ought to have regard to. He then went on to consider the
of
course important factor
of
delay, referring to it as "quite substantial" delay. He took into account that, unlike the Limitation Act 1980, section 7
of
the Human Rights Act made no exception for a
minor
. He took into account the fact that, within the primary period
of
a year, the claimant's litigation friend, his mother, would have known about the internal prison report and therefore ought to have known that some concern was being voiced about the manner in which the deceased had been monitored in the days and weeks leading up to his death. He observed that that could have been, but was not, a prelude to some attempt to negotiate with the defendants as to extending the primary period for bringing a claim.
- If those steps
of
negotiation, which he described as not being onerous, had not been successful, it would still have been open, the judge observed, to issue proceedings in time even though the full nature
of
the claim would not be known. In those circumstances it would not have been difficult to have obtained an amendment if necessary.
- The judge then turned to the important factor
of
the inquest and its conclusion, which, as he observed, was apparent to the mother and her advisers from at the latest 21 July 2005. He observed that a period
of
over two years elapsed thereafter before the proceedings were issued. He considered that that delay, on top
of
the previous period, was likely to be to the prejudice
of
the defendant. Although statements could be adduced in evidence, he considered that the cogency
of
the defendant's evidence and the probable inability
of
contacting some
of
the witnesses would have an adverse effect on the fairness
of
the trial. He concluded as follows, at paragraph 16:
"It is fairness to both parties which, at the end
of
the day, is the bedrock
of
the decision as to which it is equitable to permit the action to proceed.
17. Taking into account all the factors I have endeavoured to consider, in my judgment it would not be equitable to permit this action to proceed and, accordingly, the claim is dismissed."
- On this appeal Mr Simblet takes essentially four separate points, although the first two are intertwined. His first point, which has been given the label
of
"jurisdiction", is by reference to the terms
of
section 7, which I think I should now set out. It reads, in its relevant part, as follows:
7. Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may --
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim
of
the unlawful act.
…
3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim
of
that act.
4) If the proceedings are made by way
of
a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim
of
that act.
…
(5) Proceedings under subsection (1)(a) must be brought before the end
of
--
(a) the period
of
one year beginning with the date on which the act complained
of
took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
- Mr Simblet's point in relation to jurisdiction seeks to build on a decision
of
this court in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; [2008] 1 WLR 806. That case was not concerned with section 7 at all but with two rules
of
the Civil Procedure Rules: first, Rule 7 and, in particular, Rule 7.5, which says that a claim form must be served within four months after the date
of
its issue; and secondly, rule 11, which sets out the means by which any challenge to the court's jurisdiction must be made, inter alia by making a Rule 11 application within 14 days
of
the acknowledgment
of
service and before otherwise engaging in the litigation so as to submit to the jurisdiction. What Hoddinott decided, at any rate for the first time in this court was that CPR Rule 11, with its reference to challenges to jurisdiction, went beyond territorial jurisdiction, even though that was the primary albeit not exclusive definition
of
jurisdiction in CPR Rule 2.3, and extended to a question
of
whether, as in that case, time could be extended for use
of
a claim form which had not been served within the necessary four months.
- Dyson LJ, giving the judgment
of
the court, said this, at paragraph 23:
23. But in CPR 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a number
of
reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)...a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment, CPR 11(1)(b) is engaged in such a case. It is no answer to say that service
of
a claim form out
of
time does not
of
itself deprive the court
of
its jurisdiction, and that it is no more than a breach
of
a rule
of
procedure, namely CPR 7.5(2). It is the breach
of
this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim."
Dyson LJ referred to previous decisions at first instance which had come to a similar conclusion, in paragraph 24
of
his judgment.
- It is on the admittedly apparently broad reasoning
of
paragraph 23, which I have just cited, that Mr Simblet relies in the context
of
section 7
of
the Human Rights Act ("HRA") to make the following submission: that it is only by reference to section 7(1)
of
the HRA that the court for the first time had any jurisdiction in relation to claims under the HRA. In those circumstances the words in subsection (5) that proceedings "must be brought" before the end
of
either one year or such longer period as the court in its discretion might think would be equitable were similarly part and parcel
of
the circumstances in which that new Human Rights Act jurisdiction was brought into existence. In other words the time limit in subsection (5) was not a limitation provision but a jurisdictional provision.
- It was on this ground that he sought to distinguish the otherwise binding decision
of
this court in Dunn v The Parole Board [2008] EWCA Civ 374 (unreported, 16 April 2008). That was a case concerned with section 7
of
the Human Rights Act. Before that court a submission based on Hoddinott was made to the effect that section 7(5) itself raised a jurisdictional issue within the meaning
of
CPR Rule 11. However, as Mr Simblet has pointed out, it appears to have been common ground that section 7(5) also raise a limitation defence, see for instance paragraph 17
of
the judgment
of
Thomas LJ, which begins:
"17. It was submitted that the Parole Board's reliance upon the limitation defence in s.7
of
the HRA went to the jurisdiction
of
the court within the meaning
of
that term as used in CPR Part 11. Although it could not be argued that this was a case where the Parole Board could dispute the court's jurisdiction to try the claim under CPR 11(1)...a), this was a case where the Parole Board was arguing the court should not exercise its jurisdiction within CPR 11(1)(b)."
- Thomas LJ resolved that issue put before this court there in those terms as follows:
"19. I do not consider that the decision in Hoddinott as to the scope
of
CPR 11(5) applies to the present application. Hoddinott was a case where the service
of
the claim form was necessary to give the court jurisdiction to try the case in the sense
of
having the authority and power to do it; the two first instance cases referred to at paragraph 24
of
Hoddinott were similarly concerned with service as was the appeal in Uphill v BRB (Residuary) Ltd. The court in the present case had the power and authority to try the claim as the proceedings had been commenced and served; the Parole Board were not seeking to contest that power nor to contend that the court should not exercise its jurisdiction.
20. What the Parole Board was seeking to do was to rely on s.7(5) as providing a defence to the claim and to contend that the claimant had no reasonable grounds for bringing the claim and no real prospect
of
success. It is clear, in my view that limitation provisions provide a defence to the claim; they do not go to jurisdiction. Such provisions have generally been treated under the law
of
England and Wales as procedural. There is no basis for categorising the limitation provisions
of
the HRA in a different way: see also paragraph 112
of
the opinion
of
Lord Rodger
of
Earlsferry in Somerville v Scottish Ministers [2007] UKHL 44. Similarly the contention that there were no reasonable grounds for bringing the claim and that the claim had no real prospect
of
success did not go to the jurisdiction
of
the court; it went to an assessment
of
the claim that was before the court.
21. In my view therefore the argument put forward is misconceived."
- As I have said, Mr Simblet accepts that that decision is binding on this court if section 7(5) is to be viewed as an ordinary limitation defence. He submits that it is not, for two reasons. One is the reason that I have already expressed, which is that section 7(5) is part
of
a clause which in general initiates a new jurisdiction in the court, and the other, in support
of
that basic submission, is by reference to comparing the precise language
of
section 7(5) with language in the Limitation Act where the provisions are,
of
course, accepted to be limitation provisions within the sense
of
the judgment
of
this court in Dunn. Thus Mr Simblet stresses that the words in section 7(5) are that proceedings "must be brought" and he compares that with the language
of
, for instance section 2
of
the Limitation Act 1980: "An action founded on tort shall not be brought after…"
- In my judgment these submissions are not correct. The jurisdiction
of
the court is granted by section 7(1), without which, admittedly, the court would not have jurisdiction for such proceedings. But subsection (5) is a limitation defence in the ordinary sense
of
that term. There is no essential difference, or difference at all, other than a slight difference in language between saying that proceedings "must be brought" and saying that an action "must not be brought before the end
of
", and the Limitation Act wording
of
an action which "shall not be brought after". It is just two different ways
of
saying the same thing. This is emphasised strongly by the concluding words
of
section 7(5), which are that
"that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
That is a direct reference to the possibility
of
Limitation Act time limits being stricter than the time limits imposed under section 7(5) itself. It is to be noted that the expression "time limits" is the basic word used to describe limitation in section 1
of
the Limitation Act itself, which begins:
"This Part
of
this Act gives the ordinary time limits for bringing actions
of
the various classes mentioned in the following provisions
of
this Part."
- Thus section 7(5)
of
the HRA itself recognises by that language that it is dealing with a time limit just like any Limitation Act time limit and recognises also that a Limitation Act time limit may be stricter than a time limit imposed by section 7(5) itself. That, it seems to me, is a critical and decisive answer to Mr Simblet's submission. But I would go on to observe, although it is not necessary to my decision, that if Mr Simblet's submission were correct, then the argument for saying that the need for a claimant to be a victim
of
the unlawful act referred to at the end
of
section 7(1) would itself be a matter going to jurisdiction. Mr Simblet himself seemed to accept that such a conclusion would be counterintuitive even though, given the language
of
the Act, there would be a stronger case for saying that the need for the claimant to be a victim went to jurisdiction than to say that a time limit which is so much akin to an ordinary Limitation Act time limit went to jurisdiction. However subsections (3) and (4)
of
section 7 indicate that the need for the claimant to be a victim related, in effect, to what, in the context at any rate
of
judicial review, would be considered to be a sufficient interest in England or a title and interest to sue in Scotland. It seems to me that these considerations support the view that section 7(5) is not dealing with a jurisdictional matter. It would be very surprising if every Human Rights Act claim by an alleged victim which was opposed on the ground that the claimant was not a victim was a matter which had to be dealt with under Rule 11
of
the CPR.
- Therefore I would reject Mr Simblet's first ground
of
appeal to the effect that the defendants had failed to take a jurisdictional point in time. There is, in my judgment, no jurisdictional point. It also follows from what I have said about Mr Simblet's attempt to distinguish the language
of
section 7(5) and that
of
the Limitation Act, that there is nothing in the distinction between section 7(5) limitation and limitation in the Limitation Act to raise a critical interpretative difference
of
approach for the court.
- In that connection Mr Simblet has also submitted that there is an overall difference in language (other than the one to which I have referred so far) which should suggest that the court considering a question
of
discretion under section 7(5)(b) should regard the claimant's onus (to show that his claim out
of
time would be an equitable one to allow to proceed) as being easier to meet than in the context, for instance,
of
the Limitation Act, where the discretionary provisions in section 33 and suchlike have to be applied on the basis that, until discretion is exercised in favour
of
a claimant there has been a Limitation Act defence.
- It seems to me that there is that difference in language but that the burden remains, as Mr Simblet accepts, acknowledging in this respect the decision
of
Sir Michael Turner in Cameron v Network Rail, on the claimant to bring himself within section 7(5)(b), and that being the case, the burden must be the normal burden
of
someone who wishes to persuade the court to adopt an approach to its discretion which he is advocating. The judge,
of
course, has to balance all the factors which are in play in the light
of
all the circumstances
of
the case. The burden is that
of
the ordinary civil burden
of
proof where matters
of
fact are in issue and otherwise it is a burden
of
persuasion. Quite how the burden
of
persuasion is discharged by a claimant must ultimately depend not upon the particular form
of
the statute in question but upon the nature
of
the factors in play before the court.
- So I have come to Mr Simblet's third ground
of
appeal, which is that the judge had directed himself in principle wrongly in relation to the question
of
discretion. That really is the submission that I have just dealt with. That was given the label
of
the "criteria" ground
of
appeal. The submission at the end
of
the day was that the onus on the claimant under section 7(5) was lighter than the onus under (for instance) section 33
of
the Limitation Act 1980, whereas the judge had wrongly directed himself in terms
of
the onus under section 33.
- However, in addition to what I have already observed, the answer is that the judge did not so direct himself. The judge only referred to section 33 in the context
of
looking at Sir Michael Turner's observations in Cameron v Network Rail that it would not be inappropriate to look at the section 33(3)(a)-(f) factors for the purposes
of
reviewing a discretion upon all the circumstances
of
the case. Those observations
of
Sir Michael Turner have been accepted as being legitimate observations in Dunn itself, where they were referred to in a passage
of
Thomas LJ's judgment under the heading "The approach to the grant
of
an extension" at paragraphs 30-34
of
that judgment. Thomas LJ there cited Cameron v Network Rail, amongst other cases, without criticism, as indicating legitimate approaches to the discretion under section 7(5)(b) while emphasising that the discretion was a wide one and that the court should not accede to any suggestion that it should list factors or prioritise factors by indicating which may be more important than another. It follows that, in a wide discretion
of
this kind, it is all the circumstances
of
the case that have to be looked at. That is what the judge did. I can find no error
of
principle in the judge's approach to the question
of
his discretion.
- So I come finally to Mr Simblet's fourth ground and to the exercise
of
that discretion by the judge, which it is submitted he exercised wrongly. I have already indicated in an earlier part
of
my judgment how the judge proceeded. Essentially he took into account the factor that the claimant was a child; the factor
of
delay; the factor
of
knowledge through the child's mother and litigation friend and her solicitors, because she was at all times acting through solicitors, both at the stage
of
initial knowledge in the case
of
the internal prison report and, ultimately, in the case
of
the more thorough knowledge acquired through the inquest decision. The judge considered the opportunities to negotiate an extension
of
the time limit with the defendants or to issue a protective writ. He considered the possibility
of
prejudice and the need for evidence and the cogency
of
evidence and the possibility
of
the inability
of
contacting witnesses. He considered the matter
of
the fairness
of
the trial. He emphasised to himself that it was fairness to both parties that was the bedrock
of
the decision that he had to make.
- Against that background Mr Simblet accepted that he could not simply reargue the question
of
discretion as though we were a court
of
first instance deciding the matter for the first time, and that he therefore had to present his submissions in line with the fundamental doctrine in relation to an appellate court's review
of
a matter
of
discretion such as is to be found in, for instance, Lord Fraser's well-known observations in G v G [1985] 1 WLR 647 at 652D/E. Those observations are so well known that I will forbear to recite them again.
- Against that background Mr Simblet emphasised the following complaints for the purpose
of
saying that the judge had erred in principle or, if not in principle, at any rate in so important a respect as to entitle this court to say that he was plainly wrong and had reached a decision which was outside the reasonable scope for his discretion. The factors that he relied upon in this respect were, first
of
all, that the judge had overemphasised the knowledge which was available to the mother and those advising her through the internal prison report. He submitted that that report did not go very far in its criticisms
of
the Prison Service and was nowhere near as clear as the inquest. I would be prepared to accept that submission, as far as it goes, as a submission relating to the prison report, while observing that the claimant relies upon important passages
of
that prison report in the Particulars
of
Claim itself. But the criticism
of
the judge that he had hung his discretion upon that internal report is not sustainable. The judge was entitled to say that that prison report already should have brought home to the mother that "some concern" was being voiced about the manner in which the deceased was monitored in the period leading up to his death. That, it seems to me, is justifiable and is shown by the way in which that report was sought to be used in the pleadings themselves.
- However, that pales into insignificance when one considers that the knowledge
of
the inquest, which is the real basis upon which these proceedings have been launched, was available to the mother and those advising her as far back as July 2005, that is to say over two years before the ultimate issue
of
proceedings, and it was upon that report that, ultimately, on the question
of
knowledge, the judge was to place greatest emphasis and in my judgment justifiably so. Secondly, it was submitted that the judge failed to take into account the attitude
of
the defendant in relation to delay, emphasising in particular the reference to the conduct
of
the defendant in section 33(3)(c)
of
the Limitation Act itself. Mr Simblet referred to the way in which the Treasury Solicitor had taken time and even asked for an extension from the claimant, and had not indicated the problem
of
a limitation defence which was already available to it. In my judgment there is nothing critical in this matter. The claimant offered three months to the defendant and at the end
of
the day only a slight extension
of
that was requested. In any event it is not, ultimately, for a defendant to lead a claimant to the water
of
his limitation problem. That is essentially a matter for the claimant to look after for himself.
- Thirdly, Mr Simblet submitted that insufficient weight was given to the fact that time would not have been running against the claimant if his claim had been under the Fatal Accidents Act or in negligence. In my judgment this submission is
of
no value whatsoever. Plainly the judge expressly had in mind both the position under the Limitation Act and the fact that the HRA made no exception for a
minor
. So the judge did have this in mind, and to say that insufficient weight was given is simply to seek to argue a matter
of
balance. In fact, if anything, the judge made quite light
of
the fact that it is a striking feature
of
section 7 that it provides a limitation period
of
only one year, to be strongly contrasted with the much longer period allowed under the Limitation Act, and indeed makes no allowance in the case
of
a
minor
. The clear inference is that, in the case
of
such claims against public authorities, perhaps somewhat reflecting the tight three-month time limit for the purposes
of
judicial review proceedings, it was considered right that there should be really quite tight limitation periods. The judge made little
of
that factor but in my judgment could well have made more.
- Fourthly and finally, but in dealing with what Mr Simblet described as his best point on discretion, he criticised the judge's approach to prejudice. He said in effect that the judge had only considered the prejudice to the defendant and not the prejudice to the claimant. In particular he had failed expressly to remind himself that, whereas there might be to a greater or lesser extent some prejudice to the defendant in the deployment
of
evidence at trial, nevertheless the prejudice to the claimant was the complete and ultimate loss
of
his claim. In this connection Mr Simblet emphasised that since the matter had been to a detailed public enquiry in the form
of
an inquest the claim was not simply a possible claim but one which had been shown on detailed public examination to be a meritorious one, even if still subject to litigation.
- In my judgment, however, it is impossible to sustain this criticism. In the first place it is
of
course inherent in all such limitation discretion rulings that the courts know that what the claimant is facing is the loss
of
his claim. That is inherent in the whole exercise. In any event the judge brought himself back to the question
of
fairness to both parties. That
of
course includes fairness to the claimant in his final analysis and balancing decision. So I would reject those criticisms
of
the judge.
- In any event those criticisms do not in my judgment approach close to bringing this case within the test laid down by Lord Fraser in G v G. This was a not untypical decision whereby a claim
of
some potential merit, as would have to be recognised, is lost because proceedings have not been brought in time. The matter has to be considered in all its circumstances. There is often much to be said on both sides. The judge has to balance those matters in his discretion and come to a fair decision. It is only in those cases where this court can say that the judge, in conducting that exercise, has either erred in principle or has stepped plainly outside the legitimate area
of
his discretion that this court can do anything about it.
- For those reasons I would dismiss this appeal.
Lord Neuberger:
- For the reasons given by
Rix
LJ I too would dismiss this appeal.
Mr
Justice Bennett:
- I also agree.
Order: Appeal dismissed
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/419.html