Ellam v Ellam

Introduction

This is an appeal from the judgment and order of 3 April 2014 (sealed on 15 April 2014) of His Honour Judge Harris QC (sitting as a Deputy Judge of the High Court) whereby the judge gave judgment for the Respondent Defendant (“the defendant”) on a preliminary issue of the limitation defence raised in the action. The judge dismissed the action with costs having refused to exercise the court’s discretion, conferred by section 33 of the Limitation Act 1980 (Footnote: ¹), to order that the provisions of section 11 of the Act should not apply. The appeal is brought with permission granted by me, by order of 25 July 2014 (sealed on 7 August 2014), the trial judge having refused permission.

Background Facts

The claimant is the defendant’s daughter. She was born on 8 June 1968. She is now, therefore, 46 years old. In the action she claimed damages for personal injury alleged to have been inflicted upon her as a result of persistent sexual abuse committed against her by the defendant from about 1974 (when she was 6) and 1982 (when she was 14). The claimant is the second child of five born to the defendant and the claimant’s mother. The eldest child was a boy, about a year older than the claimant. There followed a sister, some three years younger, then a brother, born much later and about 11 years younger than the claimant, and finally a daughter younger still.

The family originally lived in the Oxford area of England, but in 1974 they emigrated to Canada where the defendant (a medical practitioner) had obtained a post as medical director of a hospital in Quebec province.

The claimant alleges that the abuse began when she was aged about six. The Particulars of Claim identify four specific occasions upon which abuse occurred and state that such acts were regularly repeated. It is alleged that the defendant would get into bed with the claimant, would touch her vagina and kiss her on the mouth. This sort of thing happened, it is said, at least once a week. It is further alleged that the defendant “would always put her hands on his penis which was erect every time she had to sit behind him”. It is further alleged that the defendant threatened her with full intercourse, which however never occurred but made her frightened.

The Defence in the action denies all the allegations of sexual abuse. Not surprisingly, in view of the passage of time, it is pleaded that the action is statute barred.

It appears that the marriage between the defendant and the claimant’s mother was a volatile one. There is said to have been frequent domestic violence. The situation was such that in 1979, according to the claimant, the mother sent her and her siblings back to England (without the defendant’s knowledge) to live with her sister and her husband in Oxfordshire. After the return to England, the claimant told her aunt that the defendant had abused her. Documents on the social services files suggest that this was in late September 1979. The claimant wrote a manuscript note about it at the time, a copy of which is in our bundles. She was also directed to a Health Visitor by her mother. Following this, a social worker was assigned to the case. He was a Mr F.R. Wood (known as “Tim Wood”). A case conference concerning the family was held on 1 November 1979, when it was decided not to take formal steps in respect of any of the children (owing principally it seems to the defendant’s absence in Canada), although it was suggested that the mother be approached for her consent to the children being seen by a child psychiatrist. This proposed consultation did not occur for some time

The defendant had returned from Canada by February 1980, but relations between the defendant and his wife appear to have remained uncertain and volatile. The children were seen by a Registrar Child Psychiatrist in late February 1980 who reported at length, but found with regard to the claimant that “…there was no evidence of any serious damage having been done as a result of the incidents which she alleges took place”. He saw no harm in the children returning to live with the parents.

The aunt and her mother appear to have remained hostile to the defendant and the latter wrote a long letter, dated 8 July 1980, to the Director of Social Services, complaining of inadequate action by the social services department. The Director replied on 22 July 1980, correcting the grandmother’s impression that the children were in local authority care, and stated that the children preferred to remain with their parents although they were confused by the status of the parents’ relationship. There was some uncertainty at this time whether the family would move back to Canada. It was accepted in the Director’s letter that “there may be some risk to Rachel”.

In a note/report of 30 July 1980, Mr Wood expressed the hope that the family would be able to resolve their problems and stated that there was motivation on the part of all for the family to get back together as a unit. He concluded that he was “very happy with the situation as it stands”.

Mr Wood reported a year later in July 1981 that “Rachel remains a moody adolescent” and that, with more involvement with the family, the surer he became that “it is Mrs Ellam’s sister and mother (and other members of the family) who are the disturbed characters in this setting…”. His view was that “…reconciliation of family relationships was the right course to pursue”.

In a report of February 1982, Mr Wood reported thirteen further visits to the family and stated that there was continued “support” to the family as a unit. The claimant alleges that abuse continued in this period and only ceased in 1982 or thereabouts.

In about October 1982, following further family ructions, the claimant (then still only 13 years of age) moved from home to live once more with her aunt and her husband. The claimant says that at about this time she spoke to Mr Wood on the telephone and told him that the defendant had continued to touch her inappropriately. She says Mr Wood doubted her veracity about this. In a letter of late October 1982 to a child psychiatrist, Mr Wood mentions having spoken to the claimant on the telephone, but does not expressly say that she had mentioned continuing sexual abuse. However, a little later in the same letter he states that there had been further such allegations which he described as being “of a very dubious nature”. It is clear from that letter that Mr Wood blamed the claimant’s aunt for the renewed family difficulties and described the aunt and her mother as being obsessed with the subject of sexual molestation. The doctor replied that it would be more appropriate to refer the case to the hospital’s adolescent unit and said that he had forwarded the papers accordingly.

In December 1982 a doctor from the relevant unit wrote to the claimant’s GP (copy to Mr Wood) that they did not think that the claimant suffered from any psychiatric disorder and that the difficulties arose from various family problems and “serious marital disharmony for many years now”.

Mr Wood’s last document on the file reports a visit on 7 November 1983 in which he refers to the claimant’s aunt as “the mad sister” and says that, “Having enticed Rachel away she no longer inflicted herself on the rest of the family where her influence was totally destructive”. A document dated 6 February 1985, signed by Mr Wood, noted the case was closed.

The only remaining record on the social services file (apparently compiled by a different social worker) is dated 19 November 1986, recording a meeting with the claimant and one sibling, held at the claimant’s request, seeking advice about their parents’ troubled marriage. The claimant is reported as repeating her allegations of abuse by the defendant. An entry of 16 December 1986 records the claimant’s mother’s desire to end the marriage.

The claimant attained her majority on 8 June 1986.

The claimant says in her witness statement that she last saw Mr Wood when she was about 19 years old (i.e. in about 1987). She and a sister went to see him in Oxford and, she says, she told him that he had made a “terrible mistake” in not believing her; she had been abused and he was wrong to have believed the defendant. Mr Wood’s response is not recorded.

The claimant lived with her aunt for a time in a mobile home in Somerset, but fell out with her and lived with a partner by whom she had a daughter in July 1990. In 1991, she says, that relationship broke up. She lived thereafter at various addresses.

At this time she was told by her mother that she was petitioning for a divorce from her father. As appears from the judge’s judgment (see below) the mother relied upon the defendant’s unreasonable behaviour, including his alleged sexual abuse of the claimant. The proceedings were contested and the claimant made a statement for those proceedings dated 8 July 1991. A copy of that statement is before us. The statement contains details of the alleged sexual abuse, in much the same form as given in the particulars of claim in these proceedings.

It seems that Mr Wood provided a statement (somewhat grandiloquently called by him a “report”) to the court welfare officer, which he copied to one or more of the firms of solicitors acting in the divorce. However, he had retired from his official position, as the “report” itself stated, in 1987. Mr Wood expressed his willingness to give evidence in the proceedings, if required.

In the divorce proceedings the defendant denied the allegations made by the claimant and she gave evidence before the judge (His Honour Judge Leo Clark QC) who heard the petition. She was cross-examined by the defendant who was acting in person. Ms Rodway QC (for the defendant) said that she assumed that the defendant gave evidence. It does not appear that Mr Wood did so.

The judge’s judgment is of relevance in the present proceedings. He set out on pp.2F – 3G the allegations made. He recorded certain partial admissions made by the defendant as to two of the incidents. His conclusion on the point was (at p.4F – G):

“I bear in mind that there is a high standard of proof required for proving allegations of sexual abuse, but in view of the surprising limited admissions which the father has made himself in the course of his evidence. I am satisfied that Rachael was telling me the truth about these matters and I find them proved.”

In the Defence in these proceedings it is contended that, “Any comments made by the judge are mere observations and cannot be relied upon in law as proof of any facts the Claimant needs to establish in the present case”. The Reply in the action contended (in paragraph 9) that, “The Defendant’s attempt to challenge the findings of fact [in the divorce] is an abuse of process on the basis that it amounts to an illegitimate collateral attack on the judgment of His Honour Judge Leo Clarke QC.” It was said in the Reply that the claimant would rely upon Hunter v Chief Constable of W. Midlands [1982] AC 529, HL. However, in answer to a question from me during argument, Ms Gumbel QC told us that she did not now rely upon any formal estoppel or abuse of process point arising out of the judgment in the divorce proceedings; she said that she only presented Judge Clark’s findings as an aspect of the lack of prejudice caused to the defendant by the delayed issue of proceedings, since he had had the opportunity of meeting them before and could not be taken by surprise by them now. No further point was taken from the Hunter case before us.

The claimant’s steps to pursue the claim

On 16 December 1992, just over six years after the claimant attained her majority, the House of Lords decided, in Stubbings v Webb [1993] AC 498, that claims of injury caused by deliberate assault, including sexual abuse, were subject to a 6 year, non-extendable limitation period, as constituting trespass to the person. Accordingly, on that understanding of the law, by that date any claim that the claimant might have had against the defendant was irretrievably statute barred, assuming for this purpose that time ran from the date of her attainment of majority in June 1986.

The claimant explains her reasons for not taking action in this period as follows:

“20.

At the time of the divorce case it never entered my mind to make a claim against my father. No-one told me I could. My feelings at the time were of happiness at being believed by my mother and the judge, but also of concern for my brother Matthew and my sister Ruth and what would become of them. To my dismay Matthew went to live with my father.

21.

I first realised I could make a claim against my father when I was about 25 years old. That would have been in 1993 or 1994. I was having a conversation with a girl called Sophie whose brother was a friend of my then partner Richard Moore. Sophie told me that she had been abused in childhood by an uncle. I suggested to Sophie that she sue him. Suddenly I realised I myself had a claim. I am not sure how I discovered it was possible to sue for sexual abuse; I suppose the knowledge dawned on me gradually.

22.

I did not take action against my father immediately for a number of reasons. I felt it would be too traumatic for my brothers and sisters, all of whom still saw my father. I was especially concerned for the welfare of Ruth and Matthew. I was also frightened that my mother would have to be called as a witness and that she might be implicated. It just seemed too difficult to bring everything up again. Another concern was that if I made a successful claim, it would harm my mother and Ruth financially, as I understood my father was paying maintenance.

23.

For all these reasons I did not attempt to pursue a claim against my father at that time. It was in my mind to wait until Ruth had left home, or at least until she was 18 years old, before going ahead (if at all). I did not then realise there was time limit for staring court proceedings.

24.

As mentioned above I was in a new relationship, with Richard Moore. I wanted it to be successful and thought it would be. There was a time when I thought I would not pursue the claim and would instead commit everything to my relationship with Richard. I wanted us to be a happy family, and then nothing to do with the past would matter any more.

25.

As time went on my relationship with Richard deteriorated. He had a drink problem and could not seem to hold down a job. I went out to work myself but Richard could not even be relied on to look after the children. We were meant to go to Relate together but he failed to turn up. I realised our relationship was doomed. This disappointment was a factor that led me to try to pursue a claim against my father.”

In 2001 the claimant contacted a firm of solicitors, which I understand had acted for her mother in the divorce proceedings. They referred her to a different firm (Darbys Mallam Lewis). That firm wrote a letter before action to the defendant on 14 October 2004. On 25 October 2004 the defendant’s solicitors wrote asking for certain information (including somewhat surprisingly the date of birth of the claimant, their client’s own daughter) but stating that their client denied liability. Brief correspondence ensued as to the merits (or otherwise) of the asserted time bar. The claimant’s solicitors contended that the claimant’s “knowledge” of her cause of action for limitation period arose considerably later than her “21^st birthday” (sic). The correspondence peters out with a short request from the defendant’s solicitors asking for authority for the propositions (of law) asserted by the claimant’s solicitors. There seems to have been no reply to that request.

The claimant first consulted her present solicitors on 24 March 2006. She met Mr Young of that firm on 29 March 2006. The advice sought was whether the claimant had a claim in negligence against another firm (her mother’s divorce solicitors) for not having advised her that she had a claim against the defendant. She had complained to those solicitors about the matter and had been told that she should take independent legal advice. By this time, of course, it was clear from the decision in Stubbings (supra) that any claim was irretrievably statute barred.

On 30 January 2008 the House of Lords gave judgment in A v Hoare [2008] 1 AC 844, in which the House declined to follow Stubbings (supra) and found that section 11 of the 1980 Act (and with it section 33, permitting extension of the limitation period) applied to claims in respect of intentional injury.

On about 4 February 2008, Mr Young wrote to the claimant advising her of this turn of events. On 6 February 2008 the claimant telephoned Mr Young and said that she wanted to pursue a claim against the defendant. In July 2008, instructions were given to counsel to advise with a view to action under a conditional fee agreement (“CFA”). On 3 October 2008, counsel advised in writing. Mr Young says that on or about 10 October 2008 he wrote to the claimant stating that his firm was willing to act under a CFA. Between November 2008 and May 2009, it appears that discussions ensued with insurers about “after the event insurance”. On the latter date insurers agreed to the issue of a policy. On 16 July 2009 a CFA was signed. A letter of claim was sent to the defendant on the same day. By letter of 23 July 2009, a reply was received from the defendant’s solicitors asserting that the claim was statute barred and denying liability.

Correspondence ensued between the solicitors between August and November 2009 as to the possibility or otherwise of the discretion under section 33 being exercised in the claimant’s favour. In April 2010, the defendant’s solicitors pointed out the absence of any medical evidence upon which to base any assessment of quantum of damage.

It seems that on 4 May 2010 the claimant’s solicitors approached a consultant psychiatrist for assistance. Somewhat remarkably, it seems that the claimant was not seen by this doctor until 14 April 2011, with a second consultation following on 22 July 2011. The doctor did not produce his report until 24 January 2012. This report was never disclosed.

In April 2012 further advice was sought from counsel and as result a second psychiatrist was consulted. The new doctor (Professor Anthony Maden) was approached. The claimant saw him in consultation on 4 May 2012 and his final report was received by the solicitors on 3 June 2012. On 27 July 2012, the report was disclosed to the defendant’s solicitors. On 31 August 2012, a reply was received from the defendant’s solicitors indicating that proceedings would be strongly defended. On 7 September 2012 the claimant’s solicitors asked the defendant’s solicitors if they had instructions to accept service to which a positive reply was given by letter dated 13 September 2012. A draft claim form had been sent to the county court for issue on 12 September 2012. The claim form was sealed on 20 September 2012.

The proceedings

The proceedings were served under cover of a letter from the claimant’s solicitors of 7 January 2013. The Defence was dated 7 March 2013.

By an order of 20 September 2013 the case was transferred to the High Court and a trial of preliminary issues of limitation, and of any application under section 33 of the 1980 Act, was directed. On 30 October 2013 a case management conference was held before Judge Harris, who directed service by the claimant of a Reply on the limitation issues. Directions were also given as to exchange of witness statements and disclosure on those issues. It was ordered that, in the light of the Reply served, the claimant was to be at liberty to renew any application to rely upon the expert report of Professor Maden on the trial of the preliminary issues. The trial was ordered to be listed as soon as possible after 1 March 2014. The lists of documents are dated 20 November 2013 (defendant) and 30 December 2013 (claimant). The witness statements on the claimant’s side (from the claimant herself and Mr Young) are dated 12 and 14 March 2014; the statement for the defendant, from his solicitor, is dated 13 March 2014. There was no statement from the defendant himself.

The trial of the preliminary issues was held on 17 March 2014. It appears that no oral evidence was given. No application had been made to rely upon Professor Maden’s report, as envisaged by the order of 30 October 2013.

Before the judge and before us was/is a large volume of documents containing the claimant’s mental health records and the social services files, including copies of the documents emanating from Mr Wood, to which I have already referred.

As stated already, judgment was delivered on 3 April 2014.

Judge Harris’s judgment

The judge recited the relevant parts of section 33 of the 1980 Act. He quoted paragraph 56 of the judgment of Jackson LJ in Sayers v Hunters [2013] 1 WLR 1695, as follows:

“All that one can possibly say about the general approach to section 33 is that the burden is on the claimant. The claimant is seeking to be exempted from the normal consequences of failing to issue proceedings in time. It is for the claimant to establish by reference to the criteria set out in section 33 that it would be equitable to allow the action to proceed despite the expiry of the prescribed limitation period.”

The judge went on to say,

“The claimant is seeking the indulgence of the court and such indulgence is exceptional, see Auld LJ in KR v Bryn Alyn [2003] QB 1441 at para. 74 cited with approval by Jackson LJ in Sayers at para. 53: “Equitable means no more and no less than fair, per Lord Bingham in Horton v Sadler [2007] 1 AC 307 at para.32” ”.

The judge said prejudice to the parties was in many cases “something of a mirror image”: prejudice in the lost opportunity for the claimant to prove the claim, against prejudice to the defendant in losing the shield of limitation.

The judge noted the salient landmarks in the history of the case in paragraph 12 of the judgment as follows:

“12.

If the view is taken that the claimant’s date of knowledge was that of her majority in 1986 then (a) she could and should have issued proceedings within three years of that by June 1989; (b) she could also have taken advantage of the six year limitation period in trespass, that is to say to June 1992; (c) having failed to utilise these periods, from December 1992 Stubbings would have meant that until Hoare was decided in January 2008 she would not have been able to proceed had she tried to do so; (d) it has been open to her to bring proceedings seeking leave under s.33 since January 2008, but it was just under five years before they were issued and more or less exactly five years before they were served; (e) that is some 27 years after 1986 date of knowledge and some 38 years after the abuse is said to have begun.”

The judge described the explanation for the delay, given by the claimant in the paragraphs of her statement that I have quoted above as being “clearly not a very convincing account”. He found it reasonably clear (and this is not now disputed) that the claimant’s date of “knowledge” of her potential cause of action should be taken as not later than the date of her majority in 1986. The judge then proceeded to examine the case in the light of the various considerations set out in section 33(3) of the Act.

As for section 33(3)(a), the length of the delay and the reasons for it, the judge referred once more to the unsatisfactory explanations given in the paragraphs that I have quoted. He said that the delay between the advice received in 2001 and 2008 (when the decision in Stubbings was not followed in A v Hoare) could legitimately be said to be because of the state of the law. He also expressed sympathy with the claimant’s expressed anxiety for her family, but found concentration on a relationship with a boyfriend not to be a legitimate explanation. He said,

“One cannot put a cause of action onto a shelf with a view to taking it down again sometime later in the indeterminate future when you feel like using it”.

The judge found the “very tardy progress made after 2008 [was] not satisfactorily explained”. With reference to Birkett v James [1997] 2 WLR 38, per Lord Diplock at p.51, the judge found that a late start to the proceedings made it the more incumbent upon a claimant to proceed with all due speed. This was in tune with the need to proceed expeditiously as required by CPR 1.

Addressing section 33(3)(b), the extent to which (having regard to the delay) evidence adduced was likely to be less cogent, the judge noted the defendant’s reliance upon the loss of Mr Wood as a witness and the loss of the transcript of the evidence on which the findings in the divorce proceedings were made. The judge referred to the loss of ability of witnesses on both sides to recollect details of material events. On the other hand, the judge said that it was not to be supposed that the memories of either the claimant or the defendant would have grown dim about the central allegations, while the position might be different as to the “surrounding penumbra” of the case and the recollections of subsidiary witnesses which might be affected by the passage of time.

Turning to section 33(3)(e), the extent to which the claimant acted promptly once she knew that she might have a claim, the judge noted the lack of promptitude in 1986 and immediately thereafter, and between 1993 and 2001. He found that her solicitor did not act promptly after 2008.

As for section 33(3)(f), the judge noted the steps taken by the claimant to obtain advice and noted there had been “much delay” in obtaining psychiatric advice from February 2008 onwards.

Then in a passage of the judgment criticised by Ms Gumbel QC for the claimant, the judge said this (at paragraph 29):

“29.

Is it fair for a trial to take place? There are at least two ways of considering this. Firstly, is it fair to have a trial at all so long after the events giving rise, if true, to the causes of action? Statutory limitation rules are “no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition….but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims”, per Sir Thomas Bingham in Dobbie v Medway [1994] 2 WLR 1235 at 1238. Secondly, can a fair trial be conducted? That is to say, will there be sufficient witnesses with adequate recollection and sufficient documentary material?”

In paragraph 31 of the judgment, the judge expressed the view that after the delays identified, “it must be difficult for the claimant to satisfy the court that it is fair for her to be given a further opportunity”. He then stated that the explanation for the delay since 2008 was not a good one.

There follows a further passage which is criticised by Ms Gumbel by reason of the references to “exceptional cases” and “exceptional indulgence”. The passage is as follows:

“33.

A sound system of civil litigation must ensure that cases are both brought and litigated with reasonable expedition, thus the rules of limitation and the Civil Procedure Rules. The provisions of s.33 are there to cope with any results of the limitation system which are unfair, where in exceptional cases there are understandable good reasons which make it equitable to allow a party who is out of time to proceed.

34.

Here the delays are extreme. If leave was granted the court would be trying causes of action between three and four decades old. The prejudice to the claimant is that of being unable to exercise a remedy which she had decided for many years, for whatever reason or reasons, not to exercise. She now wants to change her mind. The prejudice to the defendant is to lose a long-accrued defence and to have to defend a case arising out of events half a lifetime ago, with some limitation upon the available evidence, and to face shame and liability for an award of damages. He may well have deserved pursuit but the framework of the law requires that such pursuit be, in general, relatively fresh.

35.

This is not a case for the exceptional indulgence referred to by Lord Clarke in D v Nugent [2010] 1WLR 516. The passage of time is too great………”

The judge decided that leave to appeal outside the primary limitation period should be refused.

The appeal and my own conclusions

The appellant raises five grounds of appeal. First, it is said that the judge applied the wrong test, as to the exercise of the discretion under section 33, by not considering whether a fair trial was still possible, but rather asking whether it was fair to the defendant to face such a trial. Secondly, it is submitted that the judge did not consider the balance of prejudice. Thirdly, it is argued that the judge failed properly to consider the findings of Professor Maden, as to the deterrence to the claimant in making a complaint arising from the alleged abuse itself. Fourthly, it is contended that the judge erred in finding that the reasons for the delay were not adequately explained. Fifthly, it is said that the judge erred in determining that the discretion under the section was only to be exercised in “exceptional cases”.

It is convenient to address the first and fifth grounds first, and effectively together, as they require an examination of the submissions of law addressed to us.

On the first ground, Ms Gumbel argued that the central test for the exercise of the statutory discretion is to determine whether a fair trial of the claim and the defence to it is possible. As I understood the submission, it was that the other statutory criteria were, in effect, subsidiary to this one.

Ms Gumbel’s argument focused primarily upon isolated extracts from the speeches in the House of Lords in A v Hoare (supra), where those speeches addressed the criteria applicable to the exercise of the discretion under section 33. Following a review of some of the other cases, Ms Gumbel emphasised the “unfettered” nature of the discretion under the section (see Horton v Sadler [2007] 1 AC 307) and she ended her citation of authority with a well-known passage from the judgment of Smith LJ in Cain v Francis [2009] QB 754, to which I shall return.

The principal speech in A v Hoare, addressing the section 33 criteria, was that of Lord Brown of Eaton-under-Heywood (with whom Lord Hoffmann, Lord Walker of Gestingthorpe and Lord Carswell agreed) in which his Lordship identified “the sort of considerations which ought clearly to be in mind in sexual abuse cases…”. The first point made addressed cases in which a claim was based upon the vicarious liability of an organisation for sexual abuse perpetrated by a malfeasant employee or similar individual. That is not this case. The second point was this:

“86.

Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations –see section 33 (3) (b)) is in many cases likely to be found quite simply impossible after a long delay.”

The third point in Lord Brown’s speech is not relevant to the instant case.

Ms Gumbel invited us to find an emphasis placed, in the quoted passage, upon the importance of the possibility or otherwise of a fair trial as being, she submitted, “central to the inquiry”. She also referred us to a short passage in the speech of Baroness Hale of Richmond (at paragraph 60) as follows:

“…..I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffman. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstance of the particular case.”

From the individual cases of B v Nugent Care Society [2010] 1 WLR 516 at paragraph 95 and Raggett v Society of Jesus [2010] EWCA Civ 1002 at paragraphs 20-25, Ms Gumbel argued that the court placed particular importance on the feature of whether a fair trial was possible in view of the delay that had passed, noting that, in the former case in which an employer was sought to be held vicariously liable, the alleged perpetrator of the alleged acts of sexual abuse had died. Thus, the main potential witness for the defendants was no longer available to give evidence. Finally, we were referred to the road traffic accident cases considered in this court in Cain v Francis [2009] QB 754. From that case, Ms Gumbel relied upon the passage in the judgment of Smith LJ (at paragraphs 73-74 as follows:

“73.

It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.

74.

Although the delay referred to in section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence: see Gwentoys. If, as here, a defendant has had early notification of a claim and every possible opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect. ”

In support of the fifth ground of appeal, namely that the learned judge in his judgment wrongly worked upon the basis that the section 33 discretion was only to be exercised in “exceptional cases”, Ms Gumbel referred us to Sayers v Hunters [2013] 1 WLR 1695 for the proposition that while the burden lies upon a claimant to satisfy the court that the statutory discretion should be exercised, the burden is not a “heavy” one. At paragraphs 44 of that case, Jackson LJ quoted from the judgment of Lord Clarke of Stone-cum-Ebony MR where he said (at paragraph 20):

“…it is correct to describe the exercise of the discretion as an exceptional indulgence to the claimant because, but for the exercise of the discretion, his claim will be time-barred. But it is only exceptional for that reason. The cases stress that the discretion is wide and unfettered.”

In a later passage of his judgment (paragraphs 54-56), Jackson LJ (with whom Arden and Kitchin LJJ agreed) said,

“54.

Once it is established which party has the burden in relation to a particular issue, it is not helpful to discuss in the abstract whether that burden is a heavy one or a light one. Mr. Platt got into difficulties in argument when we invited him to comment on hypothetical cases where it would obviously be appropriate to disapply the time bar. He submitted that in such cases the claimant's burden would still be heavy but easily discharged.

55.

In Horton v Sadler and A v Hoare the House of Lords stressed that the court's discretion under section 33 of the Limitation Act is broad and unfettered. In my view these comments make it difficult to maintain that the claimant's burden under section 33 is necessarily a heavy one. How difficult or easy it is for the claimant to discharge the burden will depend upon the facts of the particular case. I therefore respectfully agree with Smith L.J.'s comments in paragraph 96 of AB. All one can say in relation to section 33 at the level of generality is that the burden is on the claimant.

56.

Let me now draw the threads together. Upon reviewing the authorities cited by counsel, I prefer the view expressed by Smith L.J. in paragraph 96 of AB rather than the earlier view expressed by Auld L.J. in paragraph 74 (ii) of KR. All that one can properly say about the general approach to section 33 is that the burden is on the claimant. The claimant is seeking to be exempted from the normal consequences of failing to issue proceedings in time. It is for the claimant to establish by reference to the criteria set out in section 33 that it would be equitable to allow the action to proceed, despite the expiry of the prescribed limitation period. ”

Ms Gumbel argues that, in paragraph 29 of his judgment, the judge went wrong in failing to put at the centre of his consideration the question whether a fair trial of the claim was possible and in asking whether it was fair for a trial to take place. In granting permission to appeal, I considered that this argument might give to the claimant some real (as opposed to fanciful) prospects of success on the proposed appeal. Accordingly. I gave permission to appeal.

Having had the benefit of argument on the point, I do not consider that this first ground of appeal is a good one. The question for the court under section 33 is whether it “would be equitable to allow the action to proceed”, notwithstanding the expiry of the primary limitation period. That question is to be answered by having regard to all the circumstances of the case, including in particular the factors identified in section 33(3).

Whether it is “equitable” to allow an action to proceed is no different a question, in my judgment, from asking whether it is fair in all the circumstances for the trial to take place - the same question as the judge asked in the first part of the criticised paragraph 29 of the judgment. That question can only be answered by reference (as the section says expressly) to “all the circumstances”, including the particular factors picked out in the Act. No factor, as it seems to me, can be given a priori importance; all are potentially important. However, the importance of each of those statutory factors and the importance of other factors (specific to the case) outside the ones spelled out in section 33(3) will vary in intensity from case to case. One of the factors will usually be the one identified by the judge in paragraph 29, by reference to the judgment of Bingham MR in Dobbie v Medway HA [1994] 1 WLR 1234, 1238D-E, namely that statutory limitation rules are

“…no doubt designed in part to encourage potential claimants to prosecute their claims with reasonable expedition…but they are also based on the belief that a time comes when, for better or worse, a defendant should be effectively relieved from the risk of having to resist stale claims”.

Nor must it be forgotten that one relevant factor is surely the very existence of the limitation period which Parliament has decided is usually appropriate.

In paragraph 29 of the judgment, the judge identified correctly the relevant question of whether it was fair (sc. “equitable”) for a trial to take place. He also directed himself immediately, at the end of that same paragraph, to the question of whether a fair trial could be conducted, the criterion which Ms Gumbel put at the forefront of her argument. Thus, the judge addressed both questions and both were relevant.

I do not, therefore, find that the judge misdirected himself in the manner suggested.

On the second point of potential misdirection, I do not believe that the judge erred here either. In referring to “exceptional cases” and “exceptional indulgence” (in paragraphs 33 and 35 of his judgment), I do not consider that he was saying any more than that the claimant was asking for the “exceptional indulgence” of proceeding outside the limitation period, in the sense described by Lord Clarke in B v Nugent Care Society (supra) in the passage from his judgment already cited. Indeed, in paragraph 35 of the judgment the judge relied expressly on what Lord Clarke had said in that case.

At this stage, having considered the areas in which it is said the judge erred in law and finding that he did not, one moves to the question of the exercise of his discretion, with which this court will only interfere if the judge reached a conclusion on the facts which he could not reasonably reach.

The second ground of appeal is expressed as an argument of law that the judge applied the wrong test “in that he did not consider the balance of prejudice”. However, in my judgment, when examined more fully, with reference to the skeleton argument for the appellant and the oral submissions addressed to us, this ground seems in reality directed to the judge’s identification of the factors urged on each side for and against the exercise of the discretion and the weight attributed to each.

This ground raises the question whether the judge properly weighed the factors as to whether or not a fair trial was possible. The judge identified the competing arguments in his consideration of section 33(3)(b) of the Act in the context of the present case. The points which the judge identified in paragraphs 23 to 26 of the judgment accurately reflect the competing considerations. He recognised that the memories of the claimant and defendant could not be supposed to have dimmed (and he noted the absence of a witness statement from the defendant himself), but he also correctly weighed in the balance the loss of some evidence and the less clear position as to what he called the “surrounding penumbra” of situation and circumstances and the memories of subsidiary witnesses. No doubt he also had in mind the extensive material before him in the medical and social services records, to which I have referred above, which demonstrated a significant “surrounding penumbra” to the case. As he later observed there was “some limitation on the available evidence”.

In my judgment, the judge clearly did consider the balance of prejudice in weighing up the statutory factor in section 33(3)(b). I would reject, therefore, the second ground of appeal.

Nor can I accept the third ground of appeal. At the CMC on 30 October 2013 the judge had left open the question of permission to rely upon Professor Maden’s evidence until after service of the Reply, no doubt awaiting to know the extent of any apparent reliance upon such expert material in that pleading. However, no further application for permission to deploy the report was made and, therefore, it is not surprising that the judge did not take it into account. As Ms Rodway observed, if the claimant had wanted to rely on such material, the defendant would have wished to obtain his own expert advice. As the further application was not made, the point never arose.

Finally, with reference to the fourth ground of appeal, I cannot accept the contention that the judge erred in finding that the reasons for the delay were not adequately explained. In my judgment, the judge was fully entitled to reach the conclusion that he did on this point. While it might have been possible to explain away some of the early period following attainment of the claimant’s majority, in my judgment, it is quite impossible to do so with regard to the period after 2008. Over four years passed after the claimant was informed of the important change in the law that had been made in A v Hoare. This was itself significantly in excess of the primary limitation period. A very large part of that delay is accounted for by the time taken to obtain a report from the first medical expert. While no doubt the claimant’s solicitors might have pressed harder for an outcome to that aspect of the case, there is no evidence at all of any anxiety expressed by the claimant herself as to the progress of her claim, beyond attendance upon the doctor when appointments had been made. It was clearly incumbent upon both the claimant and her advisers, after 2008, to proceed with despatch when the primary limitation period had expired so long ago. By the time the matter was before the judge, the factors identified in section 33(3)(a), (e) and (f) weighed heavily against the claimant in the exercise of any discretion in her favour.

Ms Gumbel sought to contend that any delay from 2008 until the issue of proceedings were to be attributed entirely to the failure by her solicitors and (no doubt) her medical expert to progress the case. She sought then to draw analogy with cases where, for example, it has been said that the fact that a claimant might have a clear claim against his or her advisers for failing to pursue a claim promptly does negate prejudice to him or her from a failure to direct the limitation period should not apply: see e.g. Thompson v Brown [1981] 1 WLR 744, 750 B-G, per Lord Diplock. Prejudice still remained, albeit only minor, in having to instruct new solicitors and having to bear some costs personally. Ms Gumbel also referred us, in this context, to Das v Ganju [1999] PIQR 260. One cannot read that case as indicating that a party is never to have held against him delays wholly or in part attributable to his solicitors.

The extent to which a claimant in a case such as this can escape the consequences of a failure to meet a limitation period, or of a failure to proceed diligently in making application under section 33 after expiry of that period, can never be hard and fast. In some cases, a claimant may be able to shelter behind error on the part of advisers, but it will not always be so. In this case, in my judgment, the delay after February 2008 and before commencement of proceedings, was egregious and the explanations proffered do not begin exonerate the claimant from it.

In my judgment, weighing all the factors, the judge was entitled to reach the overall conclusion that he did in deciding whether or not to exercise his discretion under section 33.

Proposed Result

For these reasons, I would dismiss the appeal.

I have read the comprehensive judgment of McCombe LJ in draft and I agree with it. These additional observations are no more than a footnote.

Statutes of limitation have been described as “statutes of peace”. As Lord Millett explained in Cave v Robinson Jarvis & Rolf [2002] UKHL 18, [2003] 1 AC 384 at [6]:

“The underlying policy to which they give effect is that a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal: see Donovan v Gwentoys Ltd [1990] 1 WLR 472, 479a per Lord Griffiths. As Best CJ observed nearly 200 years ago, long dormant claims have often more of cruelty than of justice in them: see A'Court v Cross (1825) 3 Bing 329, 332-333. With the passage of time cases become more difficult to try and the evidence which might have enabled the defendant to rebut the claim may no longer be available. It is in the public interest that a person with a good cause of action should pursue it within a reasonable period.”

People arrange their affairs on the basis that stale claims cannot be pursued. Insurance cover is taken out and maintained on the basis that claims against the insured must be timeously brought. Organisations maintain document destruction policies fashioned according to limitation periods. Businesses raise finance and pay dividends on the basis that their accounts can be settled. Householders enjoy their gardens on the basis that long possession will not be disturbed. In addition the state has an interest in the principle of legal certainty. As Plumer MR said in Cholmondeley v Clinton (1820) 2 Jac & W 1, 140:

“The statute is founded upon the wisest policy, and is consonant to the municipal law of every country. It stands upon the general principle of public utility. Interest reipublicae ut sit finis litium, is a favorite and universal maxim. The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community…”

Ms Gumbel QC’s main submission was that if a fair trial was still possible that, in effect, trumped all other considerations. To accept that submission would mean that the prescribed limitation period for personal injury actions was no more than optional. It would cut across the policy underlying statutes of limitation. There are many cases, not involving personal injury, where a fair trial is still possible outside the limitation period. A claim for breach of contract may be cast-iron but if not brought in time will be statute-barred. Likewise a claim for possession based on a registered title may be easily proved, but if not brought in time will be statute-barred.

The overriding question is whether in all the circumstances of the case it is “equitable” to allow the action to proceed. “Equitable” means fair; and that means fair to both claimant and defendant, not just to the claimant.

Whether a fair trial can still take place is undoubtedly a very important question. However, it seems to me that if a fair trial cannot take place it is very unlikely to be “equitable” to expect the defendant to have to meet the claim. But if a fair trial can take place, that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period. Nor is it the case that in Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 the court applied a broad brush test as to whether a fair trial was still possible. That was expressly disavowed by the Court of Appeal in McDonnell v Walker [2009] EWCA Civ 1257, [2010] CP Rep. 14 at [21]. In Cain v Francis Smith LJ said at [73]:

“It seems to me that in the exercise of the discretion the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus there may be some unfairness to the defendant due to the delay in issue, but the delay may have arisen for so excusable a reason that, looking at the matter in the round, on balance it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because of the reasons for the delay or its length are not good ones.” (Emphasis added)

Accordingly, what the court must do, as the judge did in this case, is to go through the specific factors listed in section 33 (3) and then stand back and look at all the circumstances of the case: McDonnell v Walker at [18]. The decision of this court in Sayers v Hunters [2012] EWCA Civ 1715, [2013] 1 WLR 1695 shows the process at work.

One of the specific factors that the court is instructed to take into account by section 33 (3) (c) is the extent to which the claimant acted reasonably and promptly once she knew that she had a potential claim for damages. In our case Ms Ellam decided in 2001 that she wanted to bring a claim. At that time, however, the law was such that her claim would have been statute-barred. She contacted her current solicitors in March 2006 and was again advised that her claim was statute-barred. But that changed in January 2008 when the House of Lords decided A v Hoare [2008] UKHL 6, [2008] 1 AC 844. It is important to note that what the House of Lords decided was not that there was no limitation period; but that the limitation period could be overridden by the exercise of the court’s discretion under section 33. Ms Ellam was informed of the change in the law by her solicitors in early February 2008. On 6 February 2008 she gave instructions to pursue the claim. Apart from one further telephone call in October 2008 about funding arrangements, Ms Ellam did nothing until 14 April 2011 when she attended an appointment with a psychiatrist. Thus between the date of her initial instructions to pursue the claim and her first appointment a period equivalent to the whole of the primary limitation period of three years had elapsed. It was not until 12 September 2012 that Ms Ellam’s claim was issued. There is no evidence at all that she ever asked for a progress report on her claim. Even if (which I doubt) Ms Ellam could say that the lamentable failings of her lawyers were nothing to do with her the fact is that, on the evidence, she made no effort to progress her claim for over three years after she had decided to bring it and been told that she could. In my judgment that in itself would be enough for the court to refuse to exercise its discretion under section 33 in her favour.

In my judgment not only was the decision to which the judge came to one which he was entitled to come; but it was also the right decision. I, too, would dismiss the appeal.

I agree with both judgments.