Smith v Hampshire County Council

Introductory

Richard Smith was born on 21st October 1978. He was educated in Hampshire between September 1986 and February 1993 (being placed in a special school in 1987) and in Knowsley between February 1993 and July 1994. He left school at 15 and became 18 on 21st October 1996. The three year limitation period began either then or on the date when he obtained “knowledge” as defined in section 14 of the 1980 Act. The judge found that that knowledge was obtained at latest in October 1998 when Mr Smith consulted his general practitioner (Dr Conway) who referred him to a chartered clinical psychologist (Ms Carys Pritchard). Mr Smith contends that he only obtained the relevant knowledge when he received Ms Pritchard’s report of 17th January 1999 stating that he had a pattern of difficulties, consistent with a diagnosis of “severe dyslexia”. Mr Smith started his proceedings on 4th January 2002, more than 3 years after visiting his doctor but less than 3 years after receiving Ms Pritchard’s report. The date when he obtained the relevant knowledge is, therefore, crucial to this appeal.

“Knowledge” is defined in section 14 of the 1980 Act which provides:-

“(1)

In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts –

(a)

that the injury in question was significant; and

(b)

that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c)

the identity of the defendant …

(2)

For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3)

For the purposes of this section a person’s knowledge includes knowledge that he might reasonably have been expected to acquire –

(a)

from facts observable or ascertainable by him; or

(b)

from facts ascertainable by him with the help of medical or other appropriate expert evidence

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act upon) that advice.”

If this court upholds the judge on the question of knowledge that is not the end of the appeal because section 33 of the 1980 Act is also relied on. The judge declined to disapply the time-limit but Mr Smith has permission to appeal the exercise of the judge’s discretion on that matter. Section 33 provides:-

“(1)

If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a)

the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b)

any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates …

(3)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

the extent to which, having regard to the delay, the evidence adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

The pleaded allegations are in the following terms:-

“7.

In or about September 1986 the Claimant’s family moved to Portsmouth and the Claimant transferred to St. Swithins. The Claimant’s teacher there suspected that his failure to progress was due to some form of learning difficulty, and the Claimant was referred to an educational psychologist employed by the Second Defendant. An assessment then did take place by the educational psychologist who told the Claimant’s mother that the Claimant was “right handed but left sided”. No report was ever made available to the Claimant or his mother. The Claimant’s mother was told by the psychologist that the aim was for the Claimant to be educated initially at a special school and then later transferred back to mainstream school.

8.

Following this assessment, the Claimant was transferred in September 1987 to Cliffdale, a special school for children with moderate learning difficulties, with a peer group that had in addition to the learning disabled, a very significant cohort of children with both physical handicaps and emotional and behavioural difficulties.

9.

The Claimant remained, inappropriately placed, at Cliffdale, transferring to the equally inappropriate secondary department in September 1988, until his family moved to Knowsley in or about September 1993.

10.

. . . .

10A. The Claimant is of above average intellectual ability but had greater difficulty in acquiring a reasonable range of literacy skills, in particular reading, writing and spelling, than other children of his age at the time.

10B. The Claimant’s difficulties were or ought to have been known by his teachers at Cliffdale (primary and secondary sections) . . . . in particular:

(i)

The Claimant’s literacy skills were, at all material times, so far behind those of his peers of similar academic ability that any reasonably competent teacher would or ought to have been aware of the difference.

(ii)

The Claimant’s literacy skills were, at all material times, so deficient in comparison with his oral skills that any reasonably competent teacher would or ought to have been aware of the difference.

(iii)

The Claimant’s teachers were or should have been aware of his lack of achievement in literacy skills by September 1987 when he was transferred out of mainstream into special (albeit .. wholly inappropriate) education.

(iv)

Throughout his time at the schools referred to at paragraph 10B above the Claimant received no appropriate learning support.

….

12A As a result of being misplaced in a school for children with a variety of disabilities (when the Claimant was a boy of above average intelligence with a specific learning difficulty and should have been properly supported in a mainstream school) he became alienated from his peer group, suffered significant frustration, embarrassment and lowered mood . . . . As a result of complete alienation at the placement he began to regularly truant. He now suffers from recognisable psychiatric disorders (scholastic underachievement, specific reading disorder and specific disorders of arithmetical skills . . . .”

Master Eyre ordered the trial of a number of preliminary issues including the question whether the claimant had knowledge for the purposes of section 14 of the 1980 Act on or before 4th January 1999 (being 3 years before the issue of proceedings) or on or about 17th January 1999 (being the date of the Pritchard report which stated that the claimant suffered from severe dyslexia and which was conceded as being the date when relevant knowledge was acquired). If the requisite knowledge pre-dated 4th January 1999, the court was also to decide whether the limitation period should be disapplied under section 33 of the Act.

These issues were tried by HHJ Seymour sitting as a High Court Judge between 28th and 30th March 2006. By that time Mr Smith had discontinued proceedings instituted against Liverpool City Council; he has now discontinued proceedings instituted against Knowsley Metropolitan Borough Council. Only the proceedings against Hampshire County Council (“Hampshire”) remain live. Mr Smith and his mother gave evidence to the judge, as did Mr Feltham, a solicitor employed by Hampshire. Written evidence was received from an educational psychologist Dr Randall on the claimant’s behalf.

The Underlying Facts as found by the Judge

From shortly after September 1987, when Mr Smith began to attend Cliffdale First and Middle School, he appreciated that he had difficulties in reading and writing which were not shared by other pupils of the same age. He recognised that he had been placed in a special school on account of those difficulties, but that those difficulties were not shared (or at least not shared in the same degree he experienced) by other pupils at the school. In particular, the best reader in his class at the school at one point was a girl who suffered from Down’s Syndrome. He felt that he should be doing better than the other children and that it was unfair that he could not read and write and some of the children with obvious disabilities could.

While at the Drop In Studies Centre in 1997-8 he found that he was not making the progress which he would have wished. He came to realise from discussions with other students that some students received assistance with their written work and were given more time to complete written tasks. These were students who suffered from what he then came to know as dyslexia. His understanding of the condition at that time was that it affected one’s ability to read and to write and that it was a condition the effects of which could be alleviated by assistance of the type available at Liverpool Community College.

Wishing to progress with his art course, and having difficulty with his written work, Mr Smith on 26th June 1998 had a meeting with Ms Chuka Russo a personal tutor on the art course. The primary purpose of the meeting was to discuss whether Mr Smith would be permitted to undertake, commencing in September 1998, the art course which he desired to pursue. However, in the course of that meeting the requirement of Mr Smith for assistance with his written work arose. Ms Russo completed a Record of Initial Guidance on which the only thing Mr Smith wrote was his own name. On the record Ms Russo wrote, so far as is presently material:-

“OAKBRIDGE [probably a mistake for Altbridge]

Richard needs help with ENGLISH & MATHS.

DYSLEXIA UNIT.

Statementing Feb 99”

That was a record of a discussion between them in which Ms Russo suggested that Mr Smith himself suffered from dyslexia and that he would need help from the Dyslexia Unit of the college. At the same time Ms Russo advised Mr Smith to seek an assessment for dyslexia. The Record of Initial Guidance was said on its face to be a document in four copies, of which one, the white copy, was for the student. Some time around 14th September 1998, the date of a machine receipt printed upon it, Mr Smith signed an Enrolment Form and Learning Agreement in respect of the art course which he wished to undertake at Liverpool Community College. That form was completed, I think, partly by Mr Smith and partly by Chuka Russo. On the face of the Enrolment Form, the Record of Initial Guidance was said to be, and was in fact, attached. One of the questions on the Enrolment Form, question 11, asked about disabilities. It was completed to show that Mr. Smith did have a disability, specifically a learning disability.

The judge found that, although Mr Smith while at the college was aware that there were such people as educational psychologists and that the making of recommendations for the treatment of a problem with reading and writing was one within the ambit of the skills of an educational psychologist, he did nothing immediately after being told by Ms Russo on 26th June 1998 that he was, or might be, dyslexic and that he should seek an assessment. There was no obvious reason for that. He had been consulting his GP as occasion demanded only a matter of days prior to his discussion with Ms Russo on 26th June 1998. As he did in fact consult Dr Conway later, in October 1998, about a referral to the Dyslexia Institute, it would not seem that there was any inhibition on his part in discussing his inability to read and write with his doctor.

The next material event is that some time probably about the beginning of October 1998, and certainly before 20th October 1998, Mr Smith’s mother, Mrs. Jennifer Smith read an article in a magazine about dyslexia. She recalled that symptoms of dyslexia were explained in the article, and she thought at the time that the symptoms described were similar to the difficulties which her son experienced. Importantly, the article gave the name and contact details of the Dyslexia Institute as an organisation which could provide more information. Mrs. Smith then telephoned the Dyslexia Institute and spoke to an unidentified woman. This lady sought some details of Mr Smith. When told his age, which at that time was just short of 20, the lady expressed surprise, asking whether Mrs Smith did not know that help was available and that the condition should have been picked up at school. Following this contact between Mrs. Smith and the Dyslexia Institute, Mr Smith made contact with Dr Conway with a view to obtaining a referral to the Dyslexia Institute for assessment. The lady from the Dyslexia Institute had told Mrs Smith that her son could be assessed by the Dyslexia Institute, but that a fee of £200 was payable. That fee could be paid by her son’s general practitioner if he were a fund-holder. Mrs. Smith said that she went with her son to see Dr Conway to find out whether he was a fund-holder, and, if so, whether he would be prepared to make a referral to the Dyslexia Institute. Dr Conway contacted the Dyslexia Institute and wrote a letter of 20th October 1998 to Mr Smith, suggesting another visit to his surgery. Mr Smith and his aunt Kathryn then made an appointment to see Dr Conway some time between 20th and 28th October 1998. Following the latter appointment Dr Conway wrote to the Dyslexia Institute on 28th October 1998 in the following terms:-

“I would be grateful if you could send this 20 year old young man an appointment. I believe he has been diagnosed as being dyslexic. He is personally at a bit of a loss to know what his needs are and he would therefore welcome a professional assessment of his needs.

I understand that the initial assessment fee is £200. As a fund-holding practice, we are prepared to pay this initial fee and any subsequent tuition up to April 1999 when fund-holding will be dissolved. We would not, however, be able to fund any subsequent treatment after this time.”

The judge found that the reference in that letter to Mr. Smith being diagnosed as dyslexic was a reference to the expression of opinion on the part of Chuka Russo that he was, or might be, dyslexic.

This reference resulted in Ms Pritchard’s report of 17th January 1999 which put Mr Smith’s dyslexic condition beyond any serious doubt.

The judgment

The Submissions; (1) section 14

Mr Bowen, therefore, submitted that Mr Smith could not have been expected to take any further action (such as consulting experts and solicitors) until he had received Ms Pritchard’s report. So he no more had constructive knowledge than actual knowledge for the purpose of section 14 of the 1980 Act. It was, primarily, on what I may call the Spargo point that Mr Smith was given permission to appeal.

Since the primary finding of the judge was that Mr Smith had actual knowledge of the matters set out in section 14(1) of the 1980 Act, that was the primary focus of Mr Bowen’s attack on the judgment. He submitted, with some force, that Ms Russo was not a qualified (or any) educational psychologist and that Mr Smith could not be expected to know that his injury was significant until he had received (and had been informed of the contents of) Ms Pritchard’s report. This attack could not, however, be conclusive because, as already set out, section 14(3) expressly provides that a person’s knowledge “includes knowledge that he might reasonably have been expected to acquire

In relation to the more relevant question of constructive knowledge, Mr Bowen submitted:-

(1)

the judge had wrongly adopted a wholly objective approach to knowledge and considered how a reasonable man without undiagnosed dyslexia would have acted whereas the Adams test was only “mainly” objective (Reply submissions paras. 5 and 10);

(2)

the judge had wholly ignored Dr Randall’s second report which was intended to fill an evidential void identified in Adams (Reply submissions, paras. 9, 11 and 22);

(3)

the findings in paragraphs 36, 39, 41 and 44 were all wrong (Reply submissions paras. 21 and 27).

I will deal first with those submissions.

Discussion

Mr Bowen’s second submission deserves a more sustained analysis. In Adams the claimant did not start the proceedings for more than 12 years after he reached the age of majority. The judge and the Court of Appeal ([2003] EWCA Civ 706) thought that this was understandable; as Tuckey LJ put it in para. 25:-

“. . . a reasonable person with the claimant’s unaddressed dyslexia would be unlikely to have sought help or put two and two together and seen the glimmerings of a claim against the defendant . . . .” (recited in para. 31 of Lord Hoffmann’s speech).

The House of Lords did not agree. Lord Hoffmann (with whom Lord Phillips of Worth Matravers and Lord Scott of Foscote agreed on this point) in para. 43 of his speech referred to Forbes v Wandsworth Health Authority [1997] QB 402 in which Stuart-Smith LJ had expressed the view that section 14(3) would fail in its purpose unless it was assumed that a reasonable victim of an injury (such as the loss of a leg) would (1) display some curiosity about why it should have happened and (2) take advice reasonably promptly. Lord Hoffmann said there was no evidence that a reasonable dyslexic would feel inhibited from discussing his difficulties with a professional such as his general practitioner whom Mr Adams had in fact been consulting about his state of stress and depression caused by his inability to read and write. His stated reason for not revealing that inability was “I didn’t want to go there” (para. 26).

Lord Hoffmann then said (para. 49):-

“In the absence of some special inhibiting factor, I should have thought that Mr Adams could reasonably have been expected to seek expert advice years ago. The congeries of symptoms . . . . which he said had been making his life miserable for years, which he knew to be rooted in his inability to read and write and about which he had sought medical advice, would have made it almost irrational not to disclose what he felt to be the root cause. If he had done so, he would no doubt have been referred to someone with expertise in dyslexia and would have discovered that it was something which might have been treated earlier.”

He concluded by saying (para. 51) that there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics. He also said (para. 50) that the judge (and, by inference, the Court of Appeal) had proceeded without evidence in reaching their conclusions about “the generally inhibiting effect of untreated dyslexia”.

Mr Bowen sought to distinguish Adams in two ways. He submitted first that, unlike Mr Adams, Mr Smith never went to see his doctor because of depression or stress related to his dyslexia but only because of particular physical problems revealed by the medical notes of a quite different kind. He therefore had no reason to seek medical assistance. While this is true and it may also be true that one does not consult a general practitioner to see whether or not one has dyslexia, that is no reason not to get professional help of some kind; all the more so in the case of Mr Smith who had been positively told by Ms Russo that he should seek an assessment for dyslexia.

Secondly Mr Bowen relied on Dr Randall’s second report to the effect that, in general, dyslexics do feel inhibited from asking for professional help even when invited to do so. He pointed out that Lord Hoffmann had expressly said that there was no evidence of any generally inhibiting effect of untreated dyslexia and that Dr Randall’s second report supplied the “special inhibiting factor” which had been missing in Adams’s case.

It is far from easy to see what it is that Dr Randall says which is relevant. That may be one reason why the judge does not give it the prominence Mr Bowen would wish. In the body of the report there is this:-

“6.9

In the case of dyslexia, however, where a sufficient condition (low ability) is presumed on the basis of apparent expertise wielded by professionals (teachers mostly) qualified and appointed to do so, then it is reasonable for an adult to accept that condition as a satisfactory explanation until such time as another professional with equal ’power’ provides an equally viable alternative.”

In the substantive part of his Opinion, he says:-

“7.2

. . . . While each case and each individual will be different and it is therefore impossible to construct a general proposition valid for all undiagnosed dyslexics, I am confident that in Richard’s case he was constrained from immediate or earlier investigation by his school experiences, by the conviction he was of low ability and by the very nature of the dyslexic condition. This is a characteristic he would share with the majority of people in his position. . . .

………………..

7.5

Richard Smith’s awareness of dyslexia: Richard was persuaded, by the behaviour and comments of some of his teachers and the fact that he spent the vast bulk of his education in a special school for learning disabled children, to believe that the explanation for his struggle with literacy was his low ability. He recalls that they never troubled to make an assessment of his difficulties and he was deprived of teaching commensurate with his true abilities.

7.6

Her did not have sufficient reasons to challenge these opinions and would not have done unless Carys Pritchard, herself a professional of equivalent power, had not only provided a different but equally viable explanation.”

His summary conclusion is:-

“This review of the behavioural and attitudinal norms pre-diagnosis of reasonable adults with dyslexia allows the formulation that Richard Smith was acting within those norms in respect of the delayed development of his understanding that presumed low ability was not, in his case, the sufficient condition of his illiteracy. As a consequence he would have been unable to develop an opinion that he required an appropriate diagnostic assessment before the circumstances arose which necessitated a change of that opinion.”

As I read this opinion, Dr Randall is saying that, in general, if dyslexics are told at school that they are of low intelligence, they are inhibited from challenging that conclusion unless and until someone of comparable or higher authority informs them that they are suffering from a condition which it is possible to do something about. That is a perfectly proper expression of expert opinion. To the extent that he goes further and says that Mr Smith was himself of that frame of mind, he must not be taken to usurp the function of the judge who, unlike Dr Randall, saw and heard Mr Smith giving evidence. On the judge’s findings it is tolerably clear that Mr Smith did not himself suffer from the general inhibition to which Dr Randall refers since once it had been made clear to him in October 1998 (1) that if he were dyslexic, his dyslexia should have been picked up at school, and (2) that he could discover that he had dyslexia, if his doctor could find the fee for a consultation with the Dyslexia Institute, he had no difficulty in either going to Dr Conway to see if he would fund that consultation or then seeing Ms Pritchard who gave him his diagnosis.

The truth is that Mr Smith’s case is even more difficult from his point of view than the case of Adams was. No one had recommended to Mr Adams before the time limit expired that he should seek an assessment but he was nevertheless held to have been unreasonable in failing to seek expert assistance. Here Mr Smith had been actually advised to seek an assessment before he was 21, but proceedings were not instituted until well after that date. It is no answer to say that Ms Russo was not of comparable or higher authority than Mr Smith’s school teachers once it is clear that he ignored her specific recommendation to get assistance.

It is not enough to point to the evidential void identified in Adams and then to claim that it is filled by the production of an expert report. Every case is fact specific and if a potential claimant is found after giving evidence not to suffer, or not to suffer sufficiently, from the condition referred to by the expert, the judge has to take the case as he finds it. It is for the judge to assess the claimant’s position and this is what HHJ Seymour did.

Mr Bowen’s third submission that it is open to this court to reject wholesale the detailed findings in paragraphs 36 and 39 and the detailed and carefully considered conclusion in the light of them in paragraph 41 of the judgment is an inappropriate use of the appellate process.

That leaves the Spargo question viz whether Mr Smith was “unsure but needed to check”. I have already observed that this is said in the context of attributability. In the present case attributability was known in October 1998. Mr Bowen says that that was not enough because Mr Smith needed to check about his dyslexia. But as I have already observed he had enough knowledge about his condition by the date attributability emerged. In these circumstances it seems to me, in agreement with the judge, that Mr Smith had relevant knowledge for the purpose of section 14 of the 1980 Act by about 20th October 1998 and that the proceedings begun on 4th January 2002 are time-barred. It is not useful, therefore, to address further the question of “actual knowledge” and I turn to section 33.

(2) Section 33

Since the judge had regard to all the relevant matters set out in section 33(3) of the 1980 Act and since he purported to have regard to the prejudice of both the claimant and the defendant as he was required to do by section 33(1) of the Act, the judge’s exercise of discretion can only be faulted if some such arguments as are set out in the above paragraph can be made good. The judge’s conclusion was that, while all he could say about the strength of Mr Smith’s claim was that there was some prospect of success at trial, Hampshire’s evidence of prejudice was “very strong”. In these circumstances the judge declined to exercise his power to disapply the time-limit.

I do not accept Mr Bowen’s first argument that the judge wrongly applied Robinson. He considered all the elements of section 33 and was correctly guided by Robinson but no more. In any event, Robinson is not nearly so narrow a decision as Mr Bowen suggests.

Before dealing with Mr Bowen’s other arguments, it is worth pointing out that the strength of the Hampshire case on prejudice is not to be underestimated. Their solicitor, Mr Feltham has carried out a diligent exercise in searching for documents and teachers who can remember Mr Smith. Not surprisingly, few teachers have a specific memory of Mr Smith and, even those who do (such as Mr Vaughan), are unlikely to be helpful in the absence of any documents. It is no answer to say that Mrs Smith can remember what Mr Vaughan said and Hampshire is in no position to challenge her evidence. The position on documents is that Hampshire are unable to find any relevant documents since the practice was that, if a pupil left the area, as Mr Smith did in February 1993 to go to a school in another area such as Knowsley, his documentation would have been sent to Knowsley Council at the same time as the pupil travelled there. Knowsley has said that their policy is not to keep documents for more than 5 years after the pupil leaves school. Since Mr Smith left school in June 1994 the relevant documentation would have been destroyed in 1999. It is not suggested that this policy is in any way wrong. Even if there had been a policy to keep all documents until a child was 21 in order to cater for the fact that the time limit for a claim for person injury only begins when a pupil has reached the age of 18, the relevant documents would still have been destroyed at the end of 1999 or in 2000 and would not have been available for a claim begun in 2002. All these details are set out in the judgment and it is not suggested, beyond saying that Mr Feltham could have tried harder (eg with photographs) to jog surviving teachers’ memories, that the judge had misassessed Hampshire’s position. The question must remain – how is it possible to have a fair trial in the absence of any relevant documentation.

But Mr Bowen seeks to say that the strength of the claimant’s case is self-evident. Mr Smith is an intelligent person having a medium to high IQ but was just left in a special school (with his dyslexia undiagnosed) when he should not have been. He seeks to say that the case can be tried on expert evidence since, once it is established (as he says it will be) that Mr Smith’s IQ is unlikely to have been substantially lower when he was moved to Cliffdale in 1987 than it is now, it was on any view negligent to have left him at that school. He relies on paragraph 10.3 of Dr Randall’s first report which says:-

“Richard was incorrectly placed long term in inappropriate special schools without the benefit of statutory assessment, statement of special educational needs, annual reviews or transition plan. He missed the last third of his primary mainstream education and all of a secondary mainstream education as a consequence and thus was deprived of the broad and balanced curriculum that a person of normal ability has a right to.”

As to this the judge said that, while it was possible that Mr Smith somehow got into Cliffdale Primary, Cliffdale Secondary and then Altbridge at Knowsley without any paperwork being generated and without any review ever being carried out, that does not seem an especially likely scenario. It would indeed be very surprising and the mere absence of documentation many years later does not make it any more likely. If it is possible but unprovable that paperwork (whether in the form of the statementing envisaged by the Education Act 1981 or otherwise) did exist, it would be wrong to assume that any decision based on such paperwork must inevitably be negligent.

Mr Bowen counters this by saying that the present state of the expert evidence shows that Mr Smith has always had a medium IQ and that it ought to have been obvious to any education authority that leaving Mr Smith in a special school was negligent whether he was statemented or not. This is a very wide proposition, said to be “implicitly” vouched in paragraph 9.9 of Dr Randal’s first report which says:-

“It could be argued that the lack of documents negates opportunity to show that Richard’s special education needs were not dealt with adequately. In my opinion, however, the severity of his condition speaks for itself – a person of average ability with no inhibitory sensory, physical or mental disability, left compulsory education . . . without functional literary and numeracy despite relatively early identification.”

Even if one disregards the inappropriately adversarial tone of this paragraph, it does not seem to me to make the point that no facts could possibly exist which could justify the education authority’s action. One must resist the natural temptation on any section 33 application to try the action which would take place if one disapplied the limitation period. Having considered the present evidence with all appropriate care, it is not obvious to me that the judge was wrong to say merely that the claimant had some prospects of success at trial. That is very much a matter for him rather than this court.

As for the judge’s criticisms of Dr Randall, I do not read them as being essential to the judge’s conclusions. I do not think that the judge was saying that it was for Dr Randall to plead and prove that Hampshire were negligent. By saying that Dr Randall didn’t “grapple with the issues” the judge was merely pointing out how difficult, if not impossible, the issues were to grapple with, as indeed they are. It is certainly not appropriate for this court now to receive further evidence of an adversarially contentious nature as to how Dr Randell would “grapple” with these issues if he were asked to do so. Parties choose what evidence to put before the court and run the risk of a judge concluding that it is inadequate to discharge a relevant burden of proof. That is all that has happened here and is certainly not enough to vitiate the judge’s exercise of discretion.

The judge followed the approach indicated by this court in Robinson [2003] PIQR at pages 139-140 as approved by Lord Hoffmann in Adams and his exercise of discretion cannot in my judgment be faulted. I would dismiss this appeal.

I agree.

I also agree that this appeal should be dismissed for the reasons given by Longmore LJ.