The limitation game

March 1, 2008
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THE LIMITATION GAME

A v Hoare and related appeals [2008] UKHL 6, 30th January 2008

The judgment is of particular interest in that it completely changes the limitation landscape for abuse (and other) cases. The main points are summarised below:

• Stubbings v Webb [1993] AC 498 has been overturned. Since 1993, to sue for intentional injury (assault & battery/ false imprisonment) the limitation period was 6 years from the date of the assault under section 2 of the Limitation Act 1980, with no extensions permitted under section 11. Now, cases for intentionally caused injury will be treated as all other PI claims – i.e. with a 3 year limitation period, extendable by way of date of knowledge arguments (section 14) and discretion to disapply the limitation period (section 33).

• This means that abuse cases are more likely to be run on vicarious liability grounds (where Lister v Hesley Hall [2002] 1 AC 215 applies – close connection to employment) as opposed to the ‘systemic negligence’ cases child abuse lawyers have had to contort their cases into in the recent past.

• Section 14 (2) of the Limitation Act (when a person would reasonably have the knowledge that an injury is significant) gets a restrictive interpretation: It is an objective test and the HL basically consider that anyone who has been subjected to sexual assaults for example will know within 3 years of the assault (or their 18th birthday, whichever is later) that they have suffered a significant injury. This is notwithstanding that there may be mental processes going on which effectively ‘block out’ the abuse, and which come to the fore later, unless of course the Claimant can show he/she is under a disability by his/her mental incapacity.

• Note also that s 14 (2) knowledge is the knowledge when a person would reasonably consider not only that his injury was significant but also serious enough to institute a claim for damages against a defendant “who did not dispute liability and was able to satisfy a judgment”. It is not expected that a claimant needs to issue proceedings against impecunious defendants in the hope that one day they may be rich enough to satisfy a judgment. This allows the appellant in A v Hoare to issue much later only when she knew that her attacker had won the lottery.

• Section 33 on the other hand gets a much wider interpretation than it has done recently. Some guidance is offered in this judgment:

a) It is noted that if more cases are going to be brought against employers for vicarious liability, as opposed to systemic negligence, cases will be put on a much narrower factual basis so a fair trial is more likely to be possible.

b) The issues which have previously been recently taken into account by the courts when considering section 14 (2) as a subjective test (eg. the character of the claimant, the reasons for his delay, his inability to disclose the abuse due to psychiatric injury, the secretive nature of the abuse itself and threats if the claimant discloses etc etc) are to be properly considered on a section 33 application.

c) A fair trial is more likely if a complaint of abuse has been previously recorded, and in particular if the accused has been convicted of the abuse complained of.

d) A fair trial may not be quite as likely if the complaint has come out of the blue without support

e) The length of delay and the ability to have a fair trial at all remain key issues for judges in exercising their discretion (or not).

• The judgment will also have relevance to other areas of PI litigation – eg. adult assault cases and clinical negligence cases where lack of consent to surgical treatment is alleged. The guidance given as to how the courts should interpret section 14 and section 33 is of universal application.

• Bottom line – review those diary systems!

JONATHAN WHEELER

Bolt Burdon Kemp

28th March 2008

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