[View without highlighting]
[Printable RTF version]
[Buy ICLR report:  1 WLR 2127]
[View ICLR summary:  WLR(D) 74]
||Neutral Citation Number:  EWHC 65 (QB)
||Case No: C90MA063
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
||Liverpool Civil and Family Court
35 Vernon St, Liverpool L2 2BX
B e f o r e :
MR JUSTICE KING
|| AP (By his litigation friend, BA)
||- and -
||Tameside Metropolitan Borough Council
Sam Karim (instructed by Stephensons Solicitors) for the Claimant
Jonathan Auburn (instructed by Tameside MBC Legal Department) for the Defendant
Hearing dates: 9th November 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice King:
- This matter has come before me pursuant to the Order of Deputy District Judge Rome dated the 29th of July 2016 to determine a preliminary issue as to limitation.
- This Claimant was born on the 14th of June 1987. He is now some 29 years of age. He is a protected party, that is to say he lacks capacity to conduct these proceedings which he brings by his brother and litigation friend BA. However, he has a further material lack of capacity. He has a diagnosis of a learning disability as a result of Down's syndrome and as result he lacks capacity to make decisions for himself in respect of his residence and care package for the purposes of the Mental Capacity Act 2005 (The 2005 Act). As is put in paragraph 2 of the Particulars of Claim, 'he satisfies both the functional and diagnostic tests of section 2 of the Mental Capacity Act 2005' that is to say he is unable to make a decision for himself in relation to these matters because of an impairment of, or a disturbance in the functioning of, his mind or brain.
- Mr Karim at the outset of his submissions asked me to take on board the full extent of the Claimant's disability giving rise to this incapacity by reference to the description of his condition given in the Independent Social Workers' Complaint Investigation Report' of January 2014, in these terms:
'AP is a young man of 26 years. He has a number of learning disabilities as a result of Down's syndrome, possibly autistic spectrum disorder (undiagnosed) and physical health problems, including arthritis and diabetes. In 2001 he lost his sight following detachment of his retinas and is assessed as having some hearing loss/noise sensitivity. He has little speech but has some understanding and is able to indicate some of his feeling and likes and dislikes, but he is not to be regarded as having the capacity to make major decisions, for example where he lives. He is a large man and can unknowingly pose some risks to himself and others, including other vulnerable people and those who are involved in providing him with care. The behavioural support/nurse specialist, Mike Hansen, said AP was not aggressive (in a review report...he is described as calm, gentle, and with a good sense of humour) but his sight loss was a significant reason for him being difficult to care for safely as he reaches out and tries to grab at things/people to try to make sense of his surroundings'.
- None of the above is in dispute. Nor is it in dispute that the Defendant has statutory obligations to meet the Claimant's assessed needs and to comply with the provisions of the 2005 Act. Up until February 2011 the Claimant was being cared for at his family home by his mother M who was the full-time carer both to the Claimant and her sister, the Claimant's aunt, K.
- These proceedings were issued on the 24th of February 2016.
- It is a claim brought for declaratory relief and damages for breach of the Claimant's rights under Articles 5 and 8 of the European Convention on Human Rights ('the ECHR'). It is brought pursuant to sections 7(1)(a) of the Human Rights Act 1998 ('the Act') ('HRA') under which a person who claims that a public authority has acted in a way made unlawful by section 6(1) of the Act ('It is unlawful for a public authority to act in a way which is incompatible with a Convention right') may 'bring proceedings against the Authority under this Act in the appropriate court or tribunal'.
- Section 7(5) of the Act provides:
'(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 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'
- The essence of the claim under Article 5 is that the Claimant was unlawfully deprived of his liberty between the 1st of February 2011 and the 12th of August 2013, a period of some two and a half years. February 2011 was when he was removed by the Defendant from the care of his mother who was accused of an act of wilful neglect to his Aunt, and removed from his family home, and placed in what is described as respite accommodation at Stanhope Close. The 12th of August 2013 was when he was returned home. In between those dates his Mother was charged and prosecuted but ultimately acquitted on the 5th of July 2012.
- The Claimant also claims that the Defendant's actions during this same period amounted to a violation of his rights to a private and family life under Article 8 by reason of an unjustified interference with the family life existing between himself and his mother and brother.
- Reference is made in the Particular of Claim to the January 2014 investigation report (IP) prepared by the independent social worker (Mrs S Williams) to which I have already referred. This is pleaded (at paragraph 4) as having been produced following a 'series of complaints mounted by Claimant's mother'. Mr Karim emphasises to me that the mother is not the Claimant's litigation friend in these proceedings (this is his brother). As indicated, a copy of the report has been before this court. It is a lengthy report (some 70 pages). It contains numerous criticisms of the Defendant's handling of the Claimant's removal of the family home and of the process of the Defendant's decision making as regards the Claimant's residential placement.
- Key allegations relied on in the Particulars of Claim in support of the deprivation of liberty claim are that during the material period:
i.) as a matter of fact, the Claimant was deprived of his liberty, reliance being placed on the decision of the Supreme Court in Cheshire West  UKSC 19 albeit that is a decision which post dated the material period;
ii.) there was no authority for that deprivation of liberty either by an order from the Court of Protection or by an authorisation made under statutory powers;
iii.) the Defendant made no or no adequate (a) assessment as to the Defendant's capacity to make decisions about his deprivation of liberty; and/or (b) best interests assessment in relation to his deprivation of liberty.
- As regards the Article 8 claim a key allegation at paragraph 11.2 is that the failure to return the Claimant to his mother following her acquittal in July 2012 until August 2013 meant they were unable or restricted in maintaining or continuing their relationship.
- For the purposes of submissions being made as the importance of the claim as a vindication of the Claimant's rights and as to its underlying merits, I was taken to a number of passages in the Judgment of Peter Jackson J. in Neary  EWHC 1377 (COP). In paragraphs 21 to 24 of Neary reference is made to the need of any local authority which seeks to regulate or restrain or confine an incapacitated person to point to some specific justifying statutory authority or else obtain the sanction of the court; the right to freedom originating in the Magna Cater as being a fundamental constitutional right; the need for decisions about incapacitated people to be determined by their best interests with the starting point being their right to respect for their family life; that the burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living with and being looked after by his family with or without outside support.
- For the same purpose I was taken to section 4A of the Mental Capacity Act 2005 and Schedule A1 governing authorisations under the Act and to those passages in Neary (see in particular paragraph 33) referring to the DOL (Deprivation of Liberty) regime provided for in the Act and its Code of Practice, and emphasising its purpose if properly followed (and that of access to the Court of Protection) as an important safeguard against arbitrary detention.
- I was referred to the governing principles in section 1 of the 2005 Act. Any act done or decision made under the Act for or on behalf of someone who lacks capacity must be in his best interests (s1(5)). There is a need to adopt the least restrictive placement option consistent with the best interests of the individual concerned (see s1(6) 'regard must be had whether the purpose can be effectively achieved in a way which is less restrictive of the person's rights and freedom of action'). Peter Jackson J. properly observed at paragraph 157 that Article 5(1) is only engaged if there is a deprivation of liberty 'whereupon the safeguards provided by the DOL regime under section 4A and Schedule A1 of the Act come into play' and at paragraph 158 that the deprivation of Liberty Safeguards Code of Practice supplementing the main Mental Capacity Act 2005 Code of Practice, refers at paragraph 2.6 to a number of features that may accompany deprivation of liberty including 'staff exercise complete and effective control over the care and movement of a person for a significant period' and 'a decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless in the staff in the institution consider it appropriate'.
- I should observe at once however that an authorisation under section 4A and Schedule A1 could not have been obtained in this case as Stanhope Place appears to be neither a hospital or nor a care home. Hence what was missing here was an application for an order from the Court of Protection.
- The Particulars of Claim further allege that the Defendant failed to consider an alternative family placement which would have resulted in a 'least restrictive' placement for the Claimant. Reliance is placed upon a best interests meeting of 20th of June 2011 when 'everybody other than the decision maker suggested it was in the Claimant's best interests to return home'. The identity of the 'everybody' comes from the IP report (internal 32). They included a person described as the Claimant's 'advocate' Rachel Facer-Smith as the Stanhope staff. The chronology produced by Mr Karim refers to the family providing an alternative option of the Claimant returning home to be cared for by his brother and his mother moving out.
- The Claimant's Chronology also refers to a letter of the 25th of August 2011 from the Claimant's advocate which refers to the need to make an application to the Court of Protection. That letter is before the court (bundle page 197). It is directed to the Defendant's Gladys Gordon Social Worker at the Defendant's Adult Services. It is of interest not only because of the reference to a court application to the Court of Protection, but also because it refers in terms to the decision in Neary and possible breaches of the Claimant's ECHR rights. Thus the letter says in part:
'I am writing to you concerning (AP) a client of yours who was referred to us on the 7th of April 2011. The matter was presented as a Safeguarding case. I would like to clarify that the safeguarding process is being followed…the decision to place (AP) in a respite placement for a prolonged period raises a number of concerns…The family have offered an alternative solution to his mum caring for him at home. (AP) has been taken out of his home environment for his own protection. Is it not possible for the alleged perpetrator to leave the family home, which she stated she is happy to facilitate, to allow (AP) to return to his home environment?...(AP) is currently staying under the local authorities request and not for respite purposes. This could be seen as a Deprivation of his liberty. Has consideration been made around an application for a Deprivation of Liberty Safeguard? It may be useful to consider a recent judgment of the court of protection: London Borough of Hillingdon v Neary…In this case the local authority had breached Steven's right to a family life under Article 8 ECHR, had deprived him of his liberty and therefore breached Article 5(1) and by failing to refer the matter to the Court of Protection sooner it had deprived him of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention contrary to Article 5(4)…If (AP) is to continue in a respite placement and denied his right to a family life the best interest assessment should reflect this decision. If all other attempts to resolve this dispute have failed, the Court of protection might need to decide what is in (AP)'s best interest.
- As to what is meant in the present context by an 'advocate' acting on behalf of the Claimant, this is explained in the witness statement (paragraph 7) of the Defendant's Paul Dulson, head of the Defendant's Adult Assessment and Care Management and in his exhibited documents. A referral for the Claimant to have an independent person acting in his interests and advocating for him was made to an organisation Advocacy Experience Limited in April 2011. This person is called an IMCA 'Independent Mental Capacity Advocate'. The referral was made by the Defendant's social worker Miss Gordon and resulted in Rachel Facer-Smith taking up advocacy on the Claimant's behalf. Mr Dulson makes the point by reference to that letter of 23rd August 2011 that (she) was fully aware of the Human Rights Act issues and raised them on (the Claimant's behalf'. She also attended relevant meetings.
The Defence to the Claim
- The Defendant by its defence admits (paragraph 10) that 'viewed in hindsight on the basis of the law as it was for the first time set out by the Supreme Court in Cheshire West the Claimant was on that basis deprived of his liberty from February 2011 to August 2013 but that the Defendant complied with the law as it stood at the relevant time' and:
'The Claimant was not deprived of his liberty on the understanding of the law as it then was and there was no breach of Article 5 on that basis'.
- Reference is made to the first instance decision of Baker J. in Cheshire West at 2011 EWHC 1330 (Fam) which was handed down on the 14th of June 2011 being 'quickly overturned by the Court of Appeal on the 9th of November 2011'. Reliance is placed on the dictum of Munby LJ in the Court of Appeal  EWCA Civ 1257 at paragraph 102(v) that 'Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty'.
Plea of 'no loss'
- The meat of the defence to the Article 5 claim (and indeed the Article 8 claim) is however the denial that the allegations give rise to any relief of substance on the part of the Defendant to the Claimant. It is denied that any of the pleaded errors have been causative of any loss as the Claimant would have been lawfully detained and deprived of his liberty even had the alleged breaches not occurred (including had an application to the Court of Protection been made). Hence the plea is made that the Claimant would be entitled only to nominal damages.
- In support of this plea of 'no loss' the Defendant:
- pleads (at paragraph 4) particulars of the circumstances in which the Claimant came be removed to Stanhope Close as a place of safety as a matter of urgent safeguarding action and on the basis of which it was reasonably believed to be in the Claimant's best interests to remove him to Stanhope Close. In summary the Aunt had clearly reported that the Claimant's mother had assaulted her, had a severe injury and the account given by the mother who was evasive did not accord with the presenting injuries. As regards the outcome of the initial best interests decision making (a reference to June 2011) the plea is that it was judged by the Defendant's officers following advice from the police, to be not in the Claimant's best interests to return home because of their concerns as to how the Aunt had received her injuries and that the Claimant was at risk;
In argument I was referred in this context to Bostridge v Oxleas NHS Foundation Trust  EWCA Civ 12 upholding the principle (following the Supreme Court decisions in R (Lumba) v Secretary of State for the Home Department (JUSTICE and another intervening)  UKSC 12,  1 AC 245 and R (Kambadzi) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening)  UKSC 23,  1 WLR 1299) that in assessing damages for the tort for false imprisonment, as with damages for any tort, the court is seeking to put the Claimant in the same position he would have been had the tort not been committed; that the court has to ask itself what would have happened if the tort had not been committed; if in fact the Claimant would have been in exactly the same position, that is he still would have been detained (although on this occasion lawfully) then he has suffered no compensatable loss and is entitled to nominal damages only. 'Vindicatory' damages are not available. See Bostridge at paragraphs 17- 27.
- as regards the alleged failure to return the Claimant home following the mother's acquittal in July 2012, the Defendant pleads that the Defendant from this date wished to return the Claimant to the family home; transitional plans began to be agreed for this purpose but the Claimant's family were unwilling to take him back until substantial works of adaptation had been made to the house. 'They went as far as threatening legal action if the Claimant was returned home'.
'In the alternative or in any event' the defence is raised that 'the Defendant has already afforded the Claimant just satisfaction for any unjustified infringement of his Convention rights'. The Defendant is relying on section 7(7) of the HRA defining what is meant by a 'victim of the unlawful act' for the purposes of section 7(1). The argument raised is that the Claimant has already been provided or offered relief which the Strasbourg Court would regard as 'just satisfaction'; and hence would not be regarded as a 'victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court' (see section 7(7)). If this be right, then the Claimant is not a victim within section 7(1) and cannot now bring a claim under the 1998 Act. I was referred to the decision of the Supreme Court in Rabone v Pennine Care NHS Foundation Trust (Inquest and others intervening)  UKSC 2,  2 AC 72, and to the judgment in particular of Lord Dyson at paragraph 49 that "it is common ground that a person ceases to be a victim within the meaning of Article 34… if two conditions are satisfied. These are that the domestic public authority has provided (i) "adequate redress" and (ii) "acknowledged, either expressly or in substance, the breach of the Convention"."
As particulars of the just satisfaction relied upon, Mr Auburn in submission on behalf of the Defendant relied upon:
- the release in January 2014 for publication of the investigator's report which contained detailed criticisms of the Defendant;
- the contents of a letter of the 18th of February 2014 sent following the publication of the report to the Claimant's mother and brother written by the Defendant's Assistant Executive Director (Martin Garnett) described by Mr Auburn as a very senior official of the Defendant. The letter is before this court. Mr Auburn accurately submits that the letter expressly acknowledges deficiencies in the handling of the matter by the Defendant and gave a number of apologies for the errors identified in the report's findings and repeatedly expresses acceptance of the individual recommendations and willingness to ensure that lesson are learnt;
- the offer of compensation made in the letter which was to pay the Claimant £2,000 and his mother £1,000.
The letter of 18th of February 2014
Mr Auburn submitted that the letter in itself constitutes recognition and open acknowledgment by the Defendant of the circumstances in issue in this claim and constituted a very important part of the Defendant's provision of just satisfaction to the Claimant, 'the fulsome apology' is said to have been more than sufficient for the purposes of providing redress/just satisfaction.
For present purposes I set out as an example one of the passages conveying an apology to the Claimant (at internal page 3):
'Notwithstanding the very complex nature of this safeguarding investigation and the subsequent decisions taken by the Police and the Crown Prosecution Service, independently of the Council, I acknowledge the rationale of the independent complaints investigator which led her to believe that 'some errors of judgement were made that were influenced by allowing concerns over K to cloud the person centred practice that was need for AP' I note…it was considered appropriate that an apology be made in relation to the Council's support and decision making concerning AP, including an apology to him directly.
In the light of these considerations, I would like to take the opportunity to apologise on behalf of the Council to AP and I will make arrangements for the service manager to meet with AP to provide an apology in person.'
I record at once Mr Karim's counter argument that the contents of the letter cannot be fairly read as acknowledging either expressly or in substance any breach of the Claimant's right to liberty under Article 5. Absent any authority of a court (Mr Karim now concedes that a standard authorisation under section 4A and Schedule A1 was not an available option to Stanhope Close), the Claimant's case is that he had been arbitrarily detained until August 2013 but nowhere is this deprivation of liberty acknowledged in the letter. On this issue I was referred to these particular passages at page 2:
'The independent complaints investigation found that the initial decision making of the department was understandable and appropriate under the circumstances however subsequent decision making was questionable in relation to the length of the time AP ultimately remained at Stanhope respite care unit.
Mrs Williams refers to the technical complexities in the application of the Deprivation of Liberty Safeguards (Dols) and the specific care environments which are covered by the regulations, i.e. Hospitals and Care Homes. I can appreciate the arguments made by Mrs Williams in relation to the spirit of the regulations, however an application made in respect of AP and his placement at Stanhope would have failed on the basis that it was not covered by the regulatory frame work because the respite unit is not a registered care home facility and the care is provided under the domiciliary care standards. As Mrs Williams points out it is not possible therefore to draw an unequivocal conclusion as to whether a deprivation of liberty ensued (emphasis of this court).
…I do accept that the department could have been more proactive and responsive in terms of Capacity Assessments and Best Interest Assessments concerning his return home…
I accept that the complaints which were partially upheld related to the initial placement of AP at Stanhope, the length of time he was there and the delay in his return home. Whilst Mrs Williams articulates the complexities; of the decision making where safeguarding ding decisions are concerned for adults lacking capacity, I and would concur with this view, I do acknowledge the department could have taken decisions about AP's return home at an earlier stage having taken due cognisance of best interests assessments and considerations'.
The adequacy of the money offer
The offer made in the letter of 18th of February was in these terms (at page 3):
'…In terms of compensation, I believe that the Council acted in good faith on the basis of the information it had available to it at the time and that K and AP were both fully supported in alternative accommodation whilst matters were fully investigated and acted upon by the relevant agencies.
The Council contend that it made every effort to ensure AP was returned back home on conclusion of the trial and outcome; however, matters beyond the Council's immediate control, i.e. your requirement for adaptations to be installed as pre-condition, resulted in further delay. I believe the Council acted reasonably in expediting these arrangements. It tried to minimise the period of further delay and it made a decision to offer to fund the housing adaptation directly from social care funds in preference to a much longer delay in awaiting the housing based Disabled Facilities Grant fund to be prioritised and authorised. I propose an offer of £3,000 in total (£1,000 to you, £2,000 to AP) as a means of reparation for the circumstances.
In the event the Claimant did not respond to this offer until the 11th of September 2014 when through his solicitors he rejected the offer.
If this offer is acceptable, please confirm in writing so appropriate arrangements can be put in place'.
Mr Auburn submitted moreover that the offer was an offer of adequate redress since he would argue that damages in this field (meaning damages under the Human Rights Act) are in any event modest relying on the observations of Lord Woolf in Anufrijeva v Southwark LBC  EWCA 1496, at paragraphs 74 and 75.
Mr Karim in reply countered that this submission is a misreading of those passages. He submits that the primary claim being made in this case is not maladministration (or even the Article 8 claim) but one of deprivation of liberty in violation of Article 5 for which there is a proper comparator giving 'some rough guidance' (per Lord Woolf at paragraph 74), to be found in the levels of damages in tort awarded for false imprisonment, which for a period of 30 months can be substantial. He argued that the consequences of the infringement of human rights claimed in the present case under Article 5 (namely the deprivation of liberty) are 'similar to that being considered in the comparator selected' (see again Lord Woolf at paragraph 74). He points to an agreed settlement in relation to an incapacitated Claimant's prospective claim for damages for breach of Article 5 and Article 8 rights approved by the Court of Protection in the sum of £60,000 under the heading 'damages for unlawful detention' in Essex County Council v RF and Others  EWCOP 1 (District Judge Mort).
Mr Karim further contended that this was not a Bostridge claim attracting nominal damages only since he says the Claimant can demonstrate that had the Defendant taken the steps mandated of it by the 2005 Act at an earlier stage, a less restrictive option would have been identified (see again the best interests meeting of June 201l) and the Claimant would, for instance, have been returned home much earlier than he was.
What I have just set out is all part of a fundamental dispute between the parties to the likely value of this claim if it were allowed to proceed.
The limitation issues before me
It is not in dispute that this claim has been brought outside the primary limitation period of one year provided for in section 7(5)(a) of the HRA. Nor is it in dispute that the alleged deprivation of liberty is to be treated as a continuing act and that time began to run when that act ceased not when it began. In other words time began to run in this case on the 12th of August 2013 and the primary limitation period expired on 13th of August 2014. It follows that these proceedings were commenced some one and a half years out of time and on the face of things the Claimant requires the court to exercise its discretion under s 7(5)(b) to extend time by such a period to the date of issue (24th of February 2016) if the claim is not to be dismissed as time barred. To do so the court would have to consider that such extended period was 'equitable having regard to all the circumstances'.
The Defendant by paragraph 1 of its Defence raised the plea that the claim was time barred under section 7(5)(a) and that it would not be equitable to extend time pursuant to section 7(5)(b). It sought determination of the limitation issue before any other steps were taken in the litigation. It was said that 'the Defendant should not be put to the expense and inconvenience of having to take further steps in relation to a claim which has been brought grossly out of time'.
The Order of the 29th of July 2016 listed two separate issues to be determined as part of the trial of the preliminary issue on limitation, namely:
i.) whether s 28 Limitation Act (1980) displaces s 7(5)(a) Human Rights Act 1998 and;
ii.) whether the Court should exercise its discretion in favour of the Claimant under s.7 (5)(b) Human Rights Act 1998.
The section 28 issue
The section 28 issue was identified because of the way the limitation issue was first addressed in the Particulars of Claim at paragraph 5:
'In so far as the claim was not brought within the time limit of 1 year provided for by section 7(5)(a) of the 1998 Act, it is submitted that the requirement is displaced because the Claimant is a person who suffers from a mental disability. In reliance of the same, the Claimant refers section 28 of the Limitation Act 1980 which states that, "…if on any date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the dated when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired...".
The section 7(5)(b) issue
The section 7(5)(b) issue was identified because of the alternative way in which the limitation issue was addressed in that same paragraph of the Particulars of Claim:
'In the alternative, the Claimant submits that the Court should grant an extension of time under section 7(5)(b) on the basis it would be equitable to do so in these circumstances. The Claimant is a protected party as he lacks the mental capacity to make certain decisions for himself, owing to an impairment of, or a disturbance of, his mind or brain. His condition is permanent. He relies on others to act for him'.
The abandonment of the section 28 issue but the incorporation into the section 7(5)(b) issue of whether the fact of mental incapacity gives rise to a rebuttable presumption in favour of an extension absent exceptional circumstances.
Before me, Mr Karim resiled from any submission that by reason of the overriding application of, or by analogy with, section 28 of the Limitation Act 1980 the fact of the Claimant's mental incapacity displaced the limitation period under section 7(5)(a) altogether. He did however maintain a primary submission, using the provisions of section 28 as 'a relevant comparator' that the significant weight which must be given to the Claimant's mental incapacity created a rebuttable presumption in favour of an extension for the purposes of the exercise of the court's discretion to extend time under section 7(5)(b). At paragraph 24 of his skeleton argument, Mr Karim put this primary submission in this way (emphasis is that of this court):
In further support of this submission Mr Karim both in writing and orally, referred to the 'injustice' to someone in the position of the Claimant who by reason of his incapacity has to rely upon others to bring an action to vindicate his rights, will suffer if the limitation were not to be extended. So at paragraph 35 of his skeleton argument:
'There is no provision in the 1998 Act which specifically states that by reason of a disability or mental incapacity, section 7(5)(a) of the 1998 Act is displaced. That said the fact that AP lacks capacity in all relevant decision making domains is a highly relevant factor to which significant weight should be displaced. This could be said to result in a rebuttable presumption that it would be just and equitable to displace the provision of limitation unless there are exceptional circumstances, because the Claimant lacks capacity, and therefore is a vulnerable individual reliant on others to uphold and vindicate (his) rights'
This emphasis upon the need for someone in the Claimant's position as one lacking capacity, to rely on others to uphold and vindicate his rights, as being the source of the potential injustice to the Claimant if the limitation period is not extended, was maintained throughout Mr Karim's submissions to me. For example at paragraph 38 of his skeleton, it is suggested that little weight should be given in this case to the factor of delay in the issuing proceedings since the letter of claim was sent by the Claimant's legal representatives, whatever the worth of the explanations put forward:
'The above cases demonstrate within the context of the 1980 Act that significant weight should be placed on a Claimant's mental incapacity or disability. It is accepted that the 1998 Act does not contain a provision akin to section 28 of the 1980 Act. However it does substantiate the fact that substantial weight must be given to AP's mental incapacity when considering whether to displace or extend the limitation period pursuant to section 7(5)(b). Having regard to the injustice that may prevail if limitation was not extended, the weight could be regarded as sufficiently broad to create a rebuttable presumption that limitation should be extended save in exceptional circumstances'
In support of the submitted importance of placing significant weight to AP's incapacity when determining where the equity of the situation lies in the context of an application to extend the present limitation period, Mr Karim, also took me to Article 2 of the United Nation International Covenant on Civil and Political Rights whereby amongst other things each State Party undertook to ensure that any person whose recognised rights or freedoms have been violated shall have an accessible and effective remedy, and to the discussion of the ambit of Article 2 in the General Comment No 31 of the United Nations Human Rights Committee adopted on the 29th of March 2004 at paragraph 15 where amongst other things it is stated that such remedies 'should be appropriately adapted so as to take account of the special vulnerability of certain categories of persons, including in particular children'.
'bearing in mind the incapacity of AP. It is AP who (via his litigation friend) seeks an extension of time. He is an individual who lacks capacity and relies on the actions of others acting on his best interests to mount a claim on his behalf'
Mr Karim did not however go as far as to submit that the enactment of the limitation period provided for section 7(5) and imposing therein a limitation period which made no express exception for a person under a disability, gave rise to any breach by the United Kingdom of its undertakings under Article 2.
In summary therefore what has been before me has been solely the issue of whether the court should extend time under section 7(5)(b).
The competing arguments on the section 7(5)(b) issue
The Claimant's case
The submission on behalf of the Claimant has been that the significant factor of the Claimant's incapacity which should strongly operate in favour of the required extension in the way described, taken with other relevant factors, justify the required extension.
Those other relevant factors fell under the headings of 'Circumstances how the Claim was mounted'; 'Defendants Knowledge' 'Prejudice' and 'Merits of the Substantive Application'.
Circumstances how the claim was mounted
As to the circumstances in which the claim was mounted, Mr Karim referred me to his chronology of events after the Claimant returned home on the 12th of August 2013. It records the following:
There was no evidence before the court in support of the facts stated in this Chronology, the Claimant having been refused (by Order of DJ Stonier dated 01 November 2016) a very late application (17th October 2016) to introduce evidence which had been opposed by the Defendant in part on the ground that it was an attempt to introduce without prejudice correspondence. However I indicated that I was prepared to accept the facts as stated in this part of the Chronology absent any objection from the Defendant.
||AP returns home.
||The report of the independent social worker.
||BA (Claimant's brother) attends Stephensons solicitors to seek advice for mounting this claim
||Public funding sought from the Legal aid Agency (LAA).
||Public funding refused. Legal help utilised.
||Letter of Claim sent by Stephensons instructed by BA.
||Defendant acknowledges letter, and states that it will seek instructions. The letter also made reference to offers which had previously been made to the Claimant and his family.
||Offer rejected by the Claimant.
||Defendant makes a Part 36 offer.
||Letter of Claim in relation to unrelated claim made by the Defendant to recover care costs against the Claimant.
||Counter Offer made by the Claimant
||Steps taken to apply to extend public funding in order that proceedings could be issued.
||Legal funding placed under review at various stages.
||Extension of public funding made for issue fee.
||Extension granted by the LAA.
In reliance upon this chronology Mr Karim emphasised that:
I should record given the reference in the chronology to offers and counter offers, there was no submission made to me that the Defendant had in some way misled the Claimant or those representing to him or lulled them into a false sense of security as regards limitation. I also record that the letter before claim of 20th of August 2014 was in fact sent just outside the expiry of the primary limitation period.
- that although no proceedings were then issued for some 18 months an explanation for that delay is given in the chronology by reference to correspondence between the respective legal representatives on offers and counter offers, and to what was said were necessary steps to obtain legal funding and issue proceedings.
The Defendant's knowledge
As to the Defendant's knowledge, it is said the claim when issued cannot have come as any surprise to the Defendant since the Defendant had known for some considerable time that a human rights claim might be mounted. In this regard reference is again made to (i) the letter of claim of 20th of August 2014 and (ii) the publication in January 2014 of the Investigation Report prepared by the independent social worker and obtained by the Defendant following the series of complaints mounted by the Claimant's mother.
It is said this report placed the Defendant on clear notice of a potential human rights claim. In support Mr Karim took me to various passages in what is a lengthy and detailed report in which the author gave her conclusions on matters which were ultimately to find their way into to the allegations pleaded in the Particulars of Claim at paragraph 10 (on Article 5) and in paragraph 11 (on Article 8). Thus by way of example the report's author opined:
- that there was a case to be made that the Claimant had been deprived of his liberty without legal process (internal page 35) with reference being made (on the ensuing page) to the contents of the letter of the Claimant's advocate of the 23rd of April 2011 to which I have already referred and to the notes of a professionals meeting of 27th September 2011 in which the advocate raised concerns about the Claimant's living arrangements and said the matter needed to go to the Court of Protection; The notes of that meeting had recorded as Action Points amongst others: 'Make application to Court of Protection'. Reference is made to the 2005 Act Code of Practice at section 8.28 which gives as an example of cases where a decision might be appropriate to refer to that Court 'where there is a major disagreement regarding a serious decision (for example about where a person who lacks capacity to decide for themselves should live')';
- that the decision making in June 2011 that the Claimant remain at Stanhope Close, did not indicate that the principle of the least restrictive solution for his care was adopted (report page 32) and the family proposal that the Claimant's brother became his main carer was not full explored (page 33);
- that there was tangible evidence of negative impact on the Claimant as a result of being removed from the care of his mother and the family home (page 28-29).
As to prejudice, the submission made on behalf of the Claimant is in effect a rebuttal of the evidence of the Defendant's Mr Dulson who at paragraph 9 states that the Defendant has not yet been able to track down many of the individuals involved on the Council's side and 'there is a very real concern that important witnesses from this time have now left the Council and cannot be located' and at paragraph 24 states that the Defendant would be now greatly disadvantaged in having to defend a human rights claim so may years after the event in that:
a) 'while there are some documents still available, it will inevitably be much harder so many years later to locate all relevant documents with which to explain its actions and put forward its Defence;
b) Locating and collating relevant email will be particularly problematic;
c) Inevitably some witnesses will have moved on and are no longer at Tameside;
Mr Karim's submission is that the court should not accept this evidence at face value. He says the Defendant has failed to make out any appreciable prejudice if the limitation period were extended. He points out that:
d) For those still here, memories of the specific events in issue will have faded considerably over the years'.
- there is no information as to what documents the Defendant has failed to locate and reminds the court the Defendant has been under an obligation under the Data Protection Act 1998 to retain such documents for 6 years;
- that no reasons are given as to why there will be the stated problem as to collating and locating relevant emails;
He asks the court to note that the Independent Social Worker for the purposes of her 2014 report had (see her report at page 7) had access to 'a substantial proportion of electronic files concerning (the Claimant) and (his Aunt)' and 'a large paper file about the Claimant'. Further (again report page 7) she had interviewed or consulted 13 named individuals, 11 of whom were then employed by the Defendant.
- that the witnesses who may have moved on, are not identified.
Merits of the substantive claim
I have already set out the essential elements of the Claimant's claim and Mr Karims' responses to the Defendant's argument that this is a case of no loss, or that just satisfaction and adequate redress has already been provided or offered in particular in relation to the Article 5 claim for deprivation of liberty. As indicated he contends that Bostridge can be distinguished because of the Defendant's failure to take less restrictive measures at an earlier stage by for example returning the Claimant home to the care of his brother. As indicated, he contends this is not a case for modest damages but is one for substantial damages commensurate with those likely to be awarded in tort for false imprisonment. In summary Mr Karim's submission is that the Claimant 'enjoys a robust claim against the Defendant for breaches of Articles 5 and 8' and realistically seeks a declaration that the Defendant has acted in breach of these Articles of the ECHR and damages exceeding £100,000 but not exceeding £150,000 for the period of 30 months unlawful detention.
He makes a specific response that the Defendant's reliance on its understanding of how the law stood at the relevant time and its asserted compliance with the law as it then stood, cannot assist it. Two points are taken. First as a matter of principle the law to be applied in determining this claim is that set out by the Supreme Court in Cheshire West; secondly and in any event during the material period Charles J had given guidance in A local authority v PB and P  EWHC 2675 (COP) at paragraph 64 and the Defendant failed to adhere to the same by failing to authorise the deprivation of liberty to under section 4A/Schedule A1. (or alternatively to apply to the Court of Protection itself).
The Defendant's case on limitation
The Defendant advances seven reasons why it would not now be equitable to extend time to now bring this claim, namely;
i). The period of delay is great given the HRA's short primary time limit and its underlying policy;
ii). The Claimant's family and legal advisers have known of the facts giving rise to this claim for a number of years. They could have brought this claim years ago;
iii). The Claimant's apparent excuse for the delay are wholly unconvincing;
iv). The Claimant has already been provided or offered relief which the Strasbourg court would regard as 'just satisfaction';
v). The underlying merits of the claim are weak and the Claimant would not in any event recover damages of substance even if successful in establishing a breach;
vi). There is very great prejudice to the Defendant in extending time so many years after the events in issue;
In support, the Defendant relies upon the history of material event deposed to in the statement of Mr Dulson. Principal stages in the Defendant's chronology supported by Mr Dulson's evidence (in addition to that set out in the Claimant's chronology) are these:
vii). The costs of these proceedings are likely to be very high and it would be disproportionate to extend time for such disproportionate litigation now.
- April 2011: the referral for the Claimant to have an IMCEA acting in his interests and advocating for him; the appointment of Rachel Facer Smith;
- IMCA letter to the Defendant of 23rd of August 2011 raising human rights issues on the Claimant's behalf;
- 27th of July 2012 (following the Mother's acquittal on the 7th of July 2012) the Defendant writes to the Claimant's brother confirming that as from that date he and his mother had access to take the Claimant out unsupported from Stanhope Close with a view to his returning home around the 30th of July 2012; thereafter the only barrier to the Claimant returning home is said by the Defendant to be the reluctance of those representing the Claimant (his brother; his mother) to engage in this process, they taking the position (as demonstrated in exhibits letters and notes of meetings) that they would not have the Claimant back until substantial adaptations were made to the family home as recommended by the Occupational Therapist; These are ultimately carried out but not completed until August 2013.
- The Claimant's family has been represented by Stephensons, specialist solicitors (specialist in the field of human rights and issues of capacity) since at least 11th of September 2012 and has been representing the Claimant and his family (Mr Dulson would say) continuously from at least that date to the current day; the following is relied on:
i) By letter dated 11th September 2012 Stephensons write to the Defendant saying they act on behalf of the Claimant instructed by his mother M as his nearest relative, and raising issues going to the assessment of needs in the context of what is described as the planned transfer home 'from his current temporary accommodation';
ii) In September/October 2012 Stephensons engage in judicial review pre-action protocol correspondence with the Defendant (letters 19th of September; 3rd of October) again on behalf of the Claimant instructed by his Mother alleging breaches of ECHR Articles 3 and 8 arising out of the local authority's action (which they say was safeguarding action) in body mapping the Claimant, that is recording marks on the Claimant's body.
iii) The Claimant's Brother and Mother by letter of the 17th December 2012 write to the Defendant informing it that they would be taking the Claimant to India and wanting a guarantee that 'if all the work on my home is not complete', the Claimant would be able to return to Stanhope; and on the 20th of December Stephensons write to the Defendant concerning progress in returning the Claimant home and taking the position on his behalf that the 'transfer home' could not be safely carried out until the property had been adapted; objecting to the Claimant's accommodation at Stanhope being referred to by the social worker as an 'emergency respite facility'; and taking the view that for the Defendant to insist on the Claimant returning home after his holiday 'would be contrary to his best interests and a potential breach of his Human Rights'; and then in January 2013 engage in judicial review pre-action correspondence further challenging the Defendant's alleged refusal to allow the Claimant to return to his placement at Stanhope, day centre provision and failure to commence adaptations to the family home.
iv) By letter dated 30th of January 2013 there is further judicial review pre-action protocol correspondence sent to the Defendant by Stephensons raising other human rights and public law equality issues arising from the Defendant's care of the Claimant;
v) In February and March 2013 there is what is fairly described by Mr Dulson as very extensive legal correspondence (exhibited by him) between Stephensons on behalf of the Claimant, and the Defendant, raising numerous threats of legal action concerning the Defendant's care of the Claimant;
The Defendant says that this chronology shows that those acting on behalf of the Claimant be it his mother, his brother, his Independent Advocate, and in particular his specialist solicitors, have known of the facts giving rise to the present claim for a number of years; they had what they needed to make the claim now sought to be made 18 months after the expiry of the primary limitation period, by 2011 and certainly by 2012, and even more certainly by the date of the publication of the ISW Williams Report in January 2014. Moreover, notwithstanding the explanations given in the Claimant's chronology for the delay, there was nothing to prevent a protective writ being issued within or just outside that period.
vi) After the letter before claim was sent by Stephensons in relation to the issues in the present proceedings (that is the letter of 20th of August 2014), these solicitors on 23rd of January 2015 sent yet another judicial review pre-action protocol letter relating to the Defendant's past care of the Claimant, this time relating to charging for care.
Moreover says the Defendant the above chronology demonstrates that not only has the Claimant had the benefit of specialist solicitors throughout but these specialist lawyers have been threatening legal action on behalf of the Claimant for years without taking any such action. There have been, says Mr Auburn some 5 or 6 threats of legal action on all sorts of issues including alleged human rights breaches arising out of the Defendant's care of the Claimant but none of those threats came to anything. The Claimant's submission that these present proceedings issued some 18 months after the letter before claim and over a year after the last contact between the parties (see Claimant's chronology at 02.02.2015 referable to the Claimant's counter offer), can have come as no surprise to the Defendant has to be seen in this context. The issue of proceedings said Mr Auburn on behalf of the Defendant, came as a bolt out of the blue.
The Court's Conclusions
I turn to my conclusions.
The principles governing the grant of an extension under section 7
I was referred to a number of authorities on the approach to be adopted by the court when exercising its discretion under s 7(5), including Dunn v Parole Board  EWCA Civ 374 (in particular Thomas LJ (as he then was) at paragraphs 30 – 33) and in Rabone v Pennine Care NHS Foundation Trust (Inquest and others intervening)  UKSC 2,  2 AC 72 (in particular Lord Dyson JSC at paragraph 75). It is for the court to determine what is 'equitable in all the circumstances'. The discretion conferred on the court by the section is expressed in broad terms, and is a wide one.
Unlike section 33 of the Limitation Act 1980 governing the discretion conferred on the court to disapply the primary limitation under that Act referable to personal injury claims brought in a common law action for negligence or breach of duty (see section 33(1) and section 33(3)), section 7(5) does not identify the factors which the court should take into account. The section 33 factors include the competing degree of prejudice as between the parties if an extension is or is not granted; the length and reasons for the Claimant's delay; the effect of delay on the cogency of the evidence likely to be adduced by the parties; the conduct of the Defendant after the cause of claim arose; the extent to which the Claimant acted promptly and reasonably once he knew the Defendant's acts or omissions might be capable of giving rise to an action for damages; the steps if any taken by the Claimant to obtain legal or other expert advice and the nature of the advice received.
It is now well established that although it would not be inappropriate for a court when considering its discretion under section 7(5) to have regard to the section 33 type factors if it considers proper to do so in the circumstances of the particular case, section 7(5), given its broad wording, is not to be interpreted as if it contained the language of section 33. See Lord Dyson in Rabone at paragraph 75. It is for the court to examine all the relevant factors in the circumstances of the case and then decide whether it is equitable to provide for a longer period. There is no predetermined list of relevant factors although proportionality will generally be taken into account. The weight to be given to any particular factor is a matter for the particular court having regard to the facts and circumstances of the particular case. There is no pre-ordained principle as to the weight to be given to any particular factor. See Thomas LJ in Dunn at paragraph 32. The first instance decisions to which I was referred (such as Cameron v Network Rail Infrastructure Ltd  EWHC 1133(QB); Bedford v Bedfordshire County Council  EWHC 1717 (QB)) were properly put before only as examples of how the court reached its decision on facts of the particular case, highlighting the factors the court thought of greatest weight on the particular facts. I treat them in that way.
The factor of lack of capacity
I reject the Claimant's submission that section 7(5) should be read as creating a rebuttable presumption in favour of the equity of the grant of an extension absent exceptional circumstances, in the case of a Claimant who lacks capacity and who by reason thereof has to depend on others in order to make a claim under section 7 seeking vindication of his human rights. The wording of section 7(5) does not allow for such a presumption. As I have indicated, the words confer a wide discretion upon the court which is not to be fettered by any such prescriptive principle.
Mr Karim may no longer be pursuing the submission that section 7(5) is displaced altogether by section 28 of the Limitation Act 1980 but his rebuttable presumption argument using section 28 as 'relevant comparator' falls foul of the same point – namely that Parliament in providing for a limitation period in respect of claims under the Human Rights Act has chosen not to provide for any exception by analogy with section 28 in favour of a Claimant under a disability.
The authorities do not provide any support for carving out a 'disability' exception or a rebuttable presumption restricting the operation of section 7 in this way by acting upon the comparison with the limitation position in common law claims. In M (T) v Ministry of Justice  EWCA Civ 419 the fact the Claimant was a child litigating through a litigation friend was not regarded as anything other than as a factor to be taken into account on deciding whether an extension was equitable. Notwithstanding that time would not have been running against the Claimant had the claim been brought under the Fatal Accidents Act or in common law negligence, the Court of Appeal upheld the judge's refusal to grant the small child an extension.
In MT, Rix LJ at paragraph 30 highlighted that section 7 made no exception with regards to a child Claimant as well as noting the policy reasons for Parliament adopting a much tighter limitation period in HRA claims against public authorities compared with common claims in tort and contract governed by the Limitation Act 1980:
'Thirdly Mr Simblet submitted that insufficient weight was given to the fact 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….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 contrasted strongly with the much longer period allowed under the Limitation Act, and indeed makes no allowance in respect of a minor. The clear inference is that, in the case of such claims against public authorities, perhaps 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.'
The weight to be given to the 'lack of capacity' factor in this case
In my judgment the factor that the Claimant is under a disability lacking capacity and hence dependent on others to bring a claim under the HRA to vindicate his ECHR human rights, is a factor which obviously must go into the balance when determining where the equity of the situation lies in considering whether to grant an extension of time under section 7(5) but the weight to be given to this factor must depend on the particulars facts of the given case. It cannot automatically qualify as one to which decisive or even substantial weight must be given, as contended for by Mr Karim.
In my judgment the weight to be given to this 'dependency' factor will vary according in particular to when the Claimant first had someone acting on his behalf and looking after his human rights interests, and when that person came into, or was in a position to come into, possession of knowledge of the essential facts, and the expertise held by that person in identifying human rights claims.
What stands out on any analysis of the present facts is that this Claimant has been continuously represented by his family (his Mother, his Brother), and by a firm of specialist solicitors (Messrs Stephensons), specialist in human rights claims, to whom the Claimant's family (his Mother and His Brother) had access, since at least September 2012. I accept Mr Dulson's analysis of the history of the solicitors' involvement on behalf of the Claimant which I have set out in some detail above. Even before September 2012 the Claimant had had the benefit of an appointed Independent Mental Capacity Advocate (the IMCA) who had written suggesting an application to the Court of Protection as long back as August 2011. I have been told and I have no reason to doubt that IMCAs can and do act as Litigation Friends in legal claims which need to be brought on behalf of incapacitated individuals. They can and do instruct solicitors and bring claims as Litigation friend.
On any view in my judgment those looking after the Claimant's interests with access to specialist legal expertise had knowledge of what they needed to know to bring a claim, that is the essential facts giving rise to the present claim, at the very latest by the January 2014 or February 2014 (the publication of the ISW report heavily relied on by Mr Karim in support of the merits of the pleaded particulars of claim), but arguably before then, namely as far back as September 2012 (the first involvement of the solicitors Stephensons) or even September 2011 (the IMCA 'human rights' letter).
In these circumstances I cannot give the Claimant's lack of capacity the decisive weight which Mr Karim urges upon me. The knowledge of the Claimant's representatives, his family and his solicitors, within the limitation period, and their promptness or lack of promptness with such knowledge, in pursuing his human rights claims, and their conduct or lack of conduct in taking steps to protect the Claimant's interests within the limitation period, such as by the issue of a protective writ, are not to be discounted or given little or no weight, as Mr Karim suggested, by reason of the Claimant's lack of capacity. This was not the approach of the Court of Appeal in MT or of Jay J. in Bedford.
The length of the delay since the expiry of the limitation period and the factor of the policy behind section 7(5) primary limitation period
I have already set out the observations of Rix LJ in M(LT). There are other authorities which make the same point as to the underlying reason for the shortness of the primary limitation period in claims against public authorities under the HRA. See for example Lord Brown in Chief Constable of Hertfordshire Police v Van Colle  UKHL 50;  1 AC 225 at paragraph 138. I concur with the views stated by Jay J. in Bedford at paragraph 76 that the court must take into account that the primary limitation period under the HRA is one year, not three years, and it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event.
In the present case the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. The claim sought to be brought relates to events which ended in August 2013, some two and a half years before the claim was issued, and to earlier events going back another 3 (those in 2012) and 4 years (those in 2011). In these circumstances I have no doubt the court must look critically at the explanations given for the delay set against these policy considerations to which I have referred. And delay is always a relevant consideration whether or not there is actual trial prejudice to the Defendant (see again Dunn at paragraph 33).
However I accept also what Jay J said further into his judgment at paragraph 79 that the burden of persuasion which is on the Claimant it is not necessarily a heavy one and there is no burden upon him to establish lack of prejudice in the Defendant. I prefer to approach the question of what is equitable without being reliant on questions of burden but by conducting the exercise, described by Thomas LJ in Dunn, of examining all the relevant factors in the circumstances of this case.
I accept that a relevant consideration on the limitation issue can be the court's assessment of the broad merits and value of the underlying claim. (see AB v MoD  AC 78). I have already set out the rival contentions in this regard including the question whether the Claimant has or has not already been provided with or offered 'just satisfaction' and can or cannot claim to be a victim for the purposes of his claim under s 7, and including the question of the likely quantum of damages even if the claim were successful, which includes the question of whether the Claimant's claim to substantial damages will fall foul of the Bostridge principle. These are all issues going in part to the question of the proportionality of allowing the claim to proceed. Mr Auburn referred me to A. v Essex CC  UKSC 33;  1 AC 280 where it was held that it was highly unlikely that any significant sum would have been awarded had the action been brought within time and been successful, leading the court to conclude it would be disproportionate to grant an extension under s (7)(5). (Lord Kerr at paragraphs 168-169 with whom the other majority Justices agreed). Lord Philips (at paragraph 90) referred to the undesirability of permitting the Claimant an extension of time to pursue a case which even if successful, would resolve no issue of principle and would be unlikely to sound in significant damages.
The court's conclusions on whether to grant an extension under section 7(5).
Having considered all relevant factors, I have no doubt that it would not be equitable to grant an extension of time in the circumstances of this particular case.
I have reached this conclusion for the following reasons.
The delay in pursuing this claim following the expiry of the limitation period has been considerable. As I have said, the extension period sought (18 months) represents an extension equal to the whole of the primary limitation period (12 months) and half as much again. The claim sought to be brought, relates to events which ended in August 2013, some two and a half years before the claim was issued, and to earlier events going back another 3 (those in 2012) and 4 years (those in 2011).
Equally the delay in pursuing this claim before the expiry of the limitation period has been considerable. I agree with the Defendant's submission that that the Claimant's family and legal advisors have known of the essential facts giving rise to this human rights claim for a number of years.
I repeat my above findings that this Claimant has been more or less continuously represented by his family (his Mother, his Brother), and by a firm of specialist solicitors (Messrs Stephensons), specialist in human rights claims, to whom the Claimant's family (his Mother and his Brother) have had access, since at least September 2012. Even before September 2012 the Claimant had had the benefit of an appointed Independent Mental Capacity Advocate (the IMCA) who had written suggesting an application to the Court of Protection as long back as August 2011.
I repeat my findings that those looking after the Claimant's interests with access to specialist legal expertise, had knowledge of what they needed to know to bring a claim, that is the essential facts giving rise to the present claim, at the very latest by January or February 2014 (the publication of the ISW report heavily relied on by Mr Karim in support of the merits of the pleaded particulars of claim) but arguably were in a like position before then, namely as far back as September 2012 (the first involvement of the solicitors Stephensons) or even September 2011 (the IMCA 'human rights' letter).
I agree with Mr Auburn that it is inexplicable that the Claimant's specialist solicitors with knowledge of the short primary limitation period under section 7, took no steps to protect the position of the Claimant by for example issuing a protective writ before or just after the expiry of the limitation period or by advising the Claimant's next friend or nearest relative to do so. It is to be noted moreover that no reply to the Defendant's letter of the 18th of February 2014 was sent until the 20th of August 2014 (the letter of claim) and the 11th of September 2014 (rejection of offer) even though it is said the Claimant's brother sought the advice of the solicitors on making a claim, in April 2014. The limitation period of course had expired by the 13th of August 2014.
The delay thereafter in not issuing the claim until February 2016 is not explained by any explanations that would in my judgment make it equitable to extend time.
The only explanations are those set out in the Claimant's chronology. Even if the without prejudice correspondence concerning offer and counter offers were relevant, this accounted for at most a period of 6 months. But in any event as I have already stated there has been no submission made to me that the Defendant in some way misled the Claimant or those representing him into a false sense of security as regards limitation. There is nothing identified in the conduct of the Defendant which in my judgment would make it equitable to extend time. As Rix LJ said in M(LT) at paragraph 29 it is not ultimately for a Defendant to lead a Claimant to the water of his limitation problem. This is essentially a matter for the Claimant to look after for himself. The matters relating to the obtaining of legal aid or the time taken to draft pleadings cannot in themselves make it equitable to extend time to the length required in this case. Legal aid matters are ones which in principle should be accommodated within the primary limitation period. It is to be noted, by analogy, that delay in the grant of legal aid is not normally a factor which will persuade a court to extend the 3 month issue period for the purposes of a judicial review claim. See the Queen (on the application of Kigen and Another) v SSHD  EWCA Civ 1286.
I agree with Mr Auburn that the unfairness and prejudice to the Defendant if this were allowed to proceed after such a delay is very real. I have no doubt that the issue of this claim did come as bolt out of the blue to the Defendant given the last communication from the Claimant's solicitors had been a year before, and given their history of repeated threats of legal action which never materialised. It will inevitably be a huge administrative burden on the Defendant if it is now compelled to meet this claim and the costs are likely to be substantial. Moreover I accept for the reasons given by Mr Dulson, that the Defendant will be at a distinct trial disadvantage if it now has to try and garner the necessary evidence to meet this claim in a trial which is likely to occur in 2017 or 2018, some, at least some 4 – 6 years after the relevant events. I see no reason to doubt the genuineness of the difficulties to which Mr Dulson deposed, as regards tracing witnesses, reviving memories, and locating documents especially electronic ones.
Prejudice and injustice to the Claimant
Set against the inequity from the standpoint of the Defendant in the grant of an extension of time in this case, I cannot find any countervailing equity of any strength in favour of the Claimant being made a grant.
As I have already indicated, Mr Karim spoke of the prejudice to the Claimant if he is not able to pursue this claim and the injustice to him inherent in such loss of claim given his dependency on others to bring his claim. In my judgement there is a distinction to be drawn on the facts and circumstances of this case, between prejudice and injustice. The Claimant will undoubtedly suffer prejudice in not being able to purse his claim whatever view is taken of its underlying merits. But that is inherent in the nature of the limitation beast. What is more crucial is to consider the question of justice or fairness as between the parties. As Rix LJ again said in M(LT) at paragraph 32:
In this case for the reasons I have already identified I do not consider that the Claimant, notwithstanding his lack of capacity, will suffer any injustice (as distinct from prejudice) in being denied the right to bring this claim so long after the facts giving rise to the claim became crystallised (August 2013) and so long after the primary limitation period expired (18 months) expired. Through those representing him he had the opportunity to bring his claim within time or shortly thereafter, and through them to have his position protected if necessary by the issuing of a protective writ. That he did not do so has to be laid squarely at the door of those looking after his interests and no adequate reason in my judgment has been put forward for their failures, sufficient to make it equitable as between the Claimant and the Defendant public authority to grant him an extension of time to bring his human rights claim against them (the Defendant).
'…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…'.
The underlying merits of the claim
For the purposes of the conclusions I have reached as to where the equity of the situation lies on the limitation issue, I have been prepared to assume that the Claimant's underlying claim is both a good one and a valuable one. In these circumstances I have not found it necessary to determine the question which has so deeply divided the parties as to the underlying merits of the underlying claim and as to the likelihood that the Claimant would have been granted any significant remedy had he brought his claim in time and succeeded.
For all these reasons I decline to grant the Claimant an extension of time under section 7 to bring his human rights claim against the Defendant. I do not consider it would be equitable to do so in the circumstances of this case.
Copyright Policy |
Donate to BAILII