Azaz v Denton & Anor

In this action the claimant, Dr. Yehu Azaz, makes a number of claims against the first defendant, Mrs. Rena Denton, and the second defendant, Self Healing Meditation Healing Centre (“the Centre”).

The Centre is a company limited by guarantee and a registered charity. It was incorporated on 8 September 1988 under the name Denton Realization Healing Centre Charitable Trust. The name of the Centre was changed on 10 November 1992 to The Self Realization Healing Centre Charitable Trust. It adopted its present name on 22 December 1998. For the purposes of this judgment it is not necessary to distinguish between the various names of the Centre over time, and I shall simply refer to it as “the Centre” no matter what its name in fact was at the time of which I am writing. The activities of the Centre focus on the study and practice of the art and science of meditation and healing.

Mrs. Denton, as I understand it, established the Centre, possibly in conjunction with her husband, Mr. Peter Denton. She was born on 4 November 1930, and so is now 78 years of age. Her husband, I am told, is rather older, being now 81 years old. Mrs. Denton seems to be, or to be regarded by some as, the spiritual head of the Centre. She also seems to claim, or to have attributed to her by some, the status of “Guru”.

While the activities of the Centre appear to include teaching meditation and healing on both residential and non-residential courses, its base (“the Base”) at Laurel Lane, Queen Camel, Yeovil, Somerset is operated as a residence for some members of the organisation. Those who reside at the Base seem to participate in communal living, with each of the residents contributing to the work necessary to maintain the Base and to offer the courses of instruction made available.

Dr. Azaz was born on 24 January 1959. After attending Henley Grammar School he proceeded to University of Nottingham to read medicine. He graduated from the prestigious Medical School with a 2.1 degree in medical science in July 1979. He then remained in the Medical School for a further two years to complete his medical training, obtaining the degree of BM.BS in July 1981. Subsequently Dr. Azaz obtained further qualifications, DCH in September 1985 and MRCP in October 1985.

After his training Dr. Azaz held a number of medical posts. The detail of those posts is not presently material. The last was as a Registrar in paediatrics at Taunton and Somerset Hospital in Taunton, a position which Dr. Azaz held between February 1990 and January 1991.

On 23 September 1989 Dr. Azaz married the former Lizanne Davies.

At some point Dr. Azaz developed an interest in alternative healing. It seems that he decided that when his then current medical contract, at Taunton and Somerset Hospital, came to an end in January 1991 he would not seek a further medical post immediately, but he and his wife would investigate undertaking a course in healing.

Whilst he was in practice as a doctor Dr. Azaz employed the services of Elliott Bailey, life assurance and pension consultants, in relation, in particular, to arranging pension schemes, and other investments, for him. A director of that organisation was Mr. Peter James. In an attendance note made by Mr. James of a meeting with Dr. and Mrs. Azaz on 23 July 1990 Mr. James recorded:-

“Yehu’s contract as a doctor at the Taunton Hospital ends in January 1991 and he has decided to cease practising as an orthodox doctor in paediatrics, and intends to devote more time to unorthodox medicine. He hopes to attend a healing course in France during 1991.”

In a letter dated 16 April 1991 to Mr. James Dr. Azaz indicated that he was no longer working and that he and his wife intended to spend the months of June and July in South Africa. In his reply, dated 25 April 1991, Mr. James noted, “that Yehu is no longer receiving a salary”.

As I understand it, Dr. Azaz and his wife commenced a healing course in France. However, it appears that they did not complete that course. In a letter to a friend, Stephanie, dated 22 September 1992 they gave an account of what they had been doing for the last year and how they intended to proceed in the immediate future:-

“We have been on the move for the last year and are writing to let you know our latest news.

Over the last twelve months we have been living in rented accommodation in the Wye valley and in Somerset. During this time we have been looking for the right property in which to live and set up a healing practice. Last month we were invited to join an existing healing centre and this has led to a major change in our plans.

We have decided to “seize the day” and have chosen a new way of life which will involve us living and working with a small group of people as one family. The Centre is a charity providing training, residential courses, retreats, individual healing and counselling and animal healing. We will be sharing in this work and in the day-to-day running of the centre.

This is a huge change for us and we will be gradually settling in over the next few months. Before we get into the swing of full-time healing work we have decided to go travelling for four months and intend to leave at the beginning of next year.”

It seems that some time in 1990 Dr. Azaz first encountered Mrs. Denton. Mrs. Denton, according to Dr. Azaz, had various views about spirituality and healing which she communicated to Dr. and Mrs. Azaz, and they became persuaded of the wisdom of those views.

In September 1992 Dr. and Mrs. Azaz decided, or were persuaded, to become resident at the Base. The name of the Centre and the address of the Base were set out in the letter to Stephanie from which I have quoted.

It seems that on 7 January 1993 Dr. and Mrs. Azaz had an interview with Mr. David West, a partner in the solicitors’ firm, Taylor Joynson Garrett. Mr. West made an attendance note of the interview, of which a copy was put in evidence, and he followed that up with a letter to Dr. and Mrs. Azaz dated 12 January 1993. The attendance note included:-

“Dr. and Mrs. Azaz have moved to a new healing centre which is a registered charity and want to transfer all their assets to it before they set off on their trip.

DEW [Mr. West] warning them very strongly about the dangers of what they propose doing. DEW pointing out the charity could change its nature or they could fall out with the other people. Dr. and Mrs. Azaz saying they understood his misgivings but had thought about it very deeply and having lived with the people for three months were absolutely satisfied they were making the right decision. They have reached an “arrangement” with the six people who run the charity and are happy with it. DEW saying the charity would have no liability to them at all if they should leave in the future.

DEW suggesting they make a large contribution but retain some capital just in case. As it is they will not even have a house of their own. Dr. and Mrs. Azaz were adamant that everything must be transferred to the charity. DEW suggesting they consider waiting perhaps a year or at least until after their trip and then give three-quarters of what they own. Dr. and Mrs. Azaz again refused to consider this option. They have discussed it with Ian McFarlane and Peter James but have not told their families of the financial side of their new life with the charity. They may do so in a few years time.

DEW explaining that he must advise them of the pitfalls of what they are doing but finally having to concede that we would do the transfers for them.”

The letter dated 12 January 1993 included the following:-

“I was very glad to see you both on Friday when I made clear my concern about your plans and I thought I should set these out in writing because the situation is critical.

I appreciate that you have both thought matters through and have taken great care in doing so but you will know that, even so, people can still make mistakes. Apart from that, events can happen which are totally unforeseeable and out of one’s control.

Both of you are free to do whatever you like with your assets as responsible adults. The substance of what you have decided to do is to give away Lizanne’s substantial fortune which derived from her father’s estate and various family trusts to a charity which at law is a separate legal entity. The money which you put into the Charity will no longer be your money and cannot be used to benefit you unless it is to pay your reasonable expenses and salary and these payments must be agreed by the Directors. The Charity will in no sense just be an extension of you. The Charity Commissioners will expect Accounts to be submitted each year. I realise that you respect the other Directors of the Charity and wish to be totally committed to them and to show your commitment. However as you both know and it has already been Lizanne’s experience, the situation can change and, in your case, should it change the end result will be drastic. It is likely Yehu will be able to earn his living and his keep but if, for instance, you should have separated or divorced, Lizanne will be financially exposed and may not be able to keep herself. This may be the lot of many people but it must be considerably more difficult where somebody has already enjoyed substantial assets during her life.

You are both giving away your assets to something you believe in but I have to say that it is Lizanne who is giving considerably more and is likely to be more exposed in the future. The money can never be repaid to you from the Charity. This means that if for any reason you break up with the Charity or are sacked or retire, there will be no way in which you can retrieve any of the money you have contributed. Do you know what arrangements will be made if you fall sick (and are not healed) or retire?

Peter James telephoned me today. We are both worried about what you are doing. What is particularly worrying to both of us is that you have not seen fit to mention all this to David and of course we will not do so. The experience of both of us having viewed human behaviour for a number of years is that what can start off with starry-eyed enthusiasm can end, five, ten or twenty years down the line, in sadness and disillusionment. My heartfelt advice is that you should on no account give your whole fortune to the Charity. We did discuss putting off your decision until you returned from your World trip. In any event you could consider transferring say, a fraction of your assets now and then another fraction in a year’s time and more if you still wanted to over the years. In this event you would be contributing to the Charity but also retaining a certain amount of independence. There is no reason why having seen the Charity in action for a number of years you should not in the future transfer your fortunes or a substantial part, to it. You will have committed your time and talents and a chunk of your assets to the Charity but have retained the ability to decide whether or not to continue to do so in the future. You will also have retained the freedom of choice which must be essential to you, to decide what interests you both wish to pursue in the future. Having divested yourself of all your assets you take away completely that choice. By retaining at least part of your assets, you have the ability not only to meet your future financial needs, but also to cope with your changing attitudes and interests which are bound to develope [sic] over the next ten or twenty years.”

The claims of Dr. Azaz in this action were all said to be consequent upon what was alleged to have happened at the time Dr. Azaz and his wife went to live at the Base, and subsequently.

The first element of claim advanced on behalf of Dr. Azaz was based upon the contention that he was encouraged, on starting to live at the Base, and persuaded by the exercise of undue influence on the part of Mrs. Denton, acting on her own behalf and on behalf of the Centre, to hand over to the Centre virtually everything he owned. His assets included money, or items readily convertible into money, as well as works of art, furniture, books and miscellaneous items. In this action the assets which Dr. Azaz was said to have handed over to the Centre which were not money or converted into money were described at the trial as “the Possessions”, and it is convenient to use that expression in that sense in this judgment. By contrast it is convenient to refer to the assets which were said to have been handed over which were money, or readily convertible into money, as “the Cash”. Hereafter in this judgment I shall refer to the claim in respect of the Possessions as “the Possessions Claim” and the claim in respect of the Cash “the Cash Claim”. I shall refer to the Possessions Claim and the Cash Claim together as “the First Element of Claim”.

In addition to the First Element of Claim, it was contended on behalf of Dr. Azaz that, acting under the undue influence of Mrs. Denton, he had abandoned his medical career, and instead had worked for the Centre between September 1992 and December 2003 for pitiful wages. Those circumstances were alleged to give rise to a second element of claim (“the Second Element of Claim”). It is convenient to distinguish between that part of the Second Element of Claim which consisted in the complaint that Dr. Azaz had been induced to abandon his medical career (“the Career Claim”) and that part which comprised his work for low wages (“the Work Claim”).

The way in which the First Element of Claim and the Second Element of Claim were pleaded in the Particulars of Claim was:-

“36.

From about October 1991, the Claimant had accepted the teachings and beliefs of the First Defendant and was under her actual undue influence as the leader of this spiritual or quasi-religious group.

37.

Further, or in the alternative, the relationship between the Claimant and the First Defendant (as set out above) was a special relationship from which undue influence is to be presumed to have been exerted over the Claimant by the First Defendant as the First Defendant was his spiritual or quasi-religious adviser.

38.

As the First Defendant was at all times acting as spiritual leader of the Second Defendant, the Claimant was also under the influence of the Second Defendant.

39.

Whilst under that undue influence and as a direct consequence thereof, the Claimant:

39.1

Handed over to the First and/or Second Defendant the sums of money identified in the First Schedule to these Particulars of Claim [that is, the Cash] – totalling over £100,000;

39.2

Handed over to the First and/or Second Defendant or allowed the general use of all his other possessions [that is, the Possessions];

39.3

Completely abandoned his career as a qualified Doctor in favour of his work for the First and Second Defendant; and

39.4

Worked for the First and/or Second Defendant from the summer of 1992 until December 2003 without receiving any proper remuneration for the tasks carried out or any compensation for the loss of his income or career as Doctor.

40.

By the letters dated 2^nd May 2007, as he was entitled to do, the Claimant avoided the gifts of money identified in the First Schedule to these Particulars of Claim as against both the First and Second Defendants; demanded the return of his possessions and sought damages. The Defendants have failed to return or repay that money or any part thereof, or to return any of the possessions or to pay any damages.

41.

In these circumstances, the Claimant is entitled to:

41.1

Repayment of each of the sums identified in the First Schedule to these Particulars of Claim;

41.2

Return of all possessions identified in the Second Schedule to these Particulars of Claim and/or equitable compensation or damages representing their value;

41.3

Damages and/or equitable compensation for the period October 1991 until December 2003 based on (a) a reasonable remuneration for the work carried out in that period for the First and/or Second Defendant or (b) compensation for the remuneration that he would have received had he continued his career as a Doctor.

41.4

Damages and/or equitable compensation for a reasonable period after December 2003 to take account of the losses sustained by the Claimant whilst returning to a senior position in his career in medicine.

…

43.

Alternatively, at the time each sum identified in the First Schedule was paid to the First and/or Second Defendant and when the possessions were made available for general use, there existed a relationship of trust and confidence between the Claimant and the First Defendant (both as acting or [sic – presumable “on” was meant] her own behalf and as agent for the Second Defendant).

44.

The gifts of money and allowing the possessions to be used generally were transactions that were so disadvantageous to the Claimant and/or so substantial as to be transactions that call for an explanation from the First and/or Second Defendants to rebut the presumption of undue influence that exists where such transactions take place where a relationship of trust and confidence exists between the parties.

45.

The Claimant received some independent advice about some of those transactions but, following the First Defendant’s teachings (as set out in paragraph 9.4 above), ignored any advice received and, accordingly, the First and/or Second Defendants are unable to rebut the presumption that the transactions were tainted by the undue influence that is presumed to exist.

46.

As a result of the matters set out in paragraph 43 – 45 above, the Claimant was entitled to avoid each of the transactions and, by the letter dated 2^nd May 2007 did avoid those transactions and became entitled to:

46.1

Repayment of each of the sums identified in the First Schedule to these Particulars of Claim;

46.2

Return of all possessions identified in the Second Schedule to these Particulars of Claim and/or equitable compensation or damages representing their value.

…

48.

Alternatively, at all material times, the possessions set out in the Second Schedule to these Particulars of Claim belonged to the Claimant who allowed them to remain at the Centre for general use.

49.

By the letter dated 2^nd May 2007, the Claimant demanded return of all of those possessions, but the First and/or Second Defendant have wrongfully failed to return any of the items set out in the Second Schedule and have thereby wrongfully interfered with them.

50.

As a result of the matters set out in paragraph 48 and 49 above, the Claimant is entitled to:

50.1

delivery up of all of those goods together with damages from the wrongful retention of those goods between 15^th December 2003 and the date of delivery up; or

50.2

the market value of the goods, together with damages for wrongful retention of those goods for that period.

…

52.

Further (or in the alternative) in relation to the possessions identified in the Second Schedule to these Particulars of Claim – the First and Second Defendants were bailees of those possessions and owed the Claimant a duty to take reasonable care of those possessions and to return them to the Claimant upon demand.

53.

The Claimant was and remains the owner of those possessions and was and is entitled to immediate return of them upon demand.

54.

By the letters dated 2^nd May 2007, the Claimant demanded the return of those possessions, but the First and Second Defendants have failed to return them to the Claimant.

55.

By reason of the matters set out in paragraphs 52 to 54 above, the Claimant has suffered loss and damage being the market value of those possessions.”

In the passage from the Particulars of Claim which I have quoted, although the Second Element of Claim was referred to at paragraphs 41.3 and 41.4, no real foundation for any claim or loss or damage was pleaded. Those matters were addressed at paragraphs 57 to 63 of the Particulars of Claim, which also included allegations which appeared to be directed at the third element of the claim of Dr. Azaz, namely for damages for personal injuries (“the Injury Claim”):-

“57.

At all material times after summer 1992 when the Claimant began living and working at the Centre, the following duties were owed to the Claimant by the First Defendant:

57.1

A duty of care in the First Defendant’s capacity as spiritual or quasi-religious adviser to the Claimant to provide reasonable and competent advice to the Claimant, (including honest, accurate and true advice as to the efficacy of her alleged personal power to heal and the Claimant’s spiritual skills or qualities).

57.2

A duty of care in the First Defendant’s capacity as spiritual or quasi-religious advisor and counsellor to the Claimant to take reasonable care of and reasonable steps for his physical and mental well being and health.

57.3

A personal duty of care as Founder and Head of the Second Defendant, to take reasonable care of and reasonable steps for the Claimant’s physical and mental well being whilst living at the Centre and whilst working at the Centre.

57.4

A duty of care in the First Defendant’s capacity as spiritual or quasi-religious advisor and counsellor to the Claimant to take reasonable steps for his financial well being (which included a duty not to enrich herself or the Second Defendant at the expense of the Claimant).

57.5

A duty not to misuse confidential information she received in her capacity as spiritual or quasi-religious advisor to the Claimant (including information as to his financial and other assets) for her own benefit or for the benefit of the Second Defendant.

58.

At all material times after summer 1992, the following duties were owed to the Claimant by the Second Defendant:

58.1

A duty to take reasonable care of and reasonable steps for the Claimant’s health and safety (including his physical and mental well being) whilst he was living at the Centre and/or whilst he was employed by the Second Defendant.

58.2

A duty to supervise the activities of the First Defendant so as to ensure that the personal belief she claimed to have as to the benefits of meditation and her personal belief in her own special ability to heal others did not result in the rejection of conventional medicine for staff and residents at the Centre, or other health and safety assessments and precautions.

58.3

A duty of good faith and care to the Claimant as an employee of the Second Defendant which included a duty not to take financial advantage of the Claimant.

58.4

A duty not to misuse confidential information received by the First Defendant in her capacity as spiritual or quasi-religious advisor to the Claimant for the benefit of the Second Defendant.

59.

Further, at all material times, the Second Defendant was vicariously liable for the actions of the First Defendant in her capacity as Founder of the Centre and the person in day to day control of the Centre and its employees.

60.

The First and Second Defendants were in breach of the duties relating to the Claimant’s financial position (as set out in paragraphs 57.4, 57.5, 58.3 and 58.4 above in that:

60.1

The First Defendant failed to take reasonable steps for the Claimant’s financial well being and/or enriched herself and the Second Defendant at the expense of the Claimant by:

60.1.1

Persuading the Claimant to make each of the gifts of money set out in the First Schedule to these Particulars of Claim.

60.1.2

Persuading the Claimant to allow the possessions set out in the Second Schedule to be made available for general use.

60.1.3

Persuading the Claimant to give up his career in medicine and to work for a nominal sum for herself and the Second Defendant at the Centre.

60.2

The First Defendant misused confidential information received in her capacity as spiritual or quasi-religious adviser to the Claimant to identify the assets that he could be persuaded to hand over to her or to the Second Defendant.

60.3

The Second Defendant is vicariously liable for the breaches of duty set out in paragraphs 60.1.1, 60.1.2, 60.1.3 and 60.2 above.

60.4

The Second Defendant was in direct breach of the duty of good faith to the Claimant (as set out in paragraph 58.3 above) in that the Second Defendant received some or all of the money identified in the First Schedule to these Particulars of Claim from the Claimant and benefitted [sic] from the use of the general use [sic] of the possessions at [sic] set out in the Second Schedule in that they remained at the Centre, and obtained the services of the Claimant as an employee without paying him a reasonable remuneration for the work carried out.

60.5

The Second Defendant misused confidential information received through the First Defendant about the Claimant’s financial position and the possession [sic] he had without which those transfers of funds and the use of his possessions could not have been arranged.

61.

As a result of the matters set out in paragraph 60 above, the Claimant has suffered loss and damage.

Particulars

61.1

In relation to the money set out in the First Schedule, the measure of the Claimant’s loss is the value today of the property and assets that he would own, if he had not been persuaded to hand all that money over to the First and Second Defendant.

61.2

In relation to the possessions handed over for general use and not returned to him, the measure of loss is the market value of those goods at the date hereof.

61.3

In relation to giving up his career as a Doctor, the measure of loss is the difference between (a) the salary that the Claimant would have received if he had remained in his career (together with the value of all other benefits including pension and national insurance contribution based benefits) until retirement and (b) the sums actually received. Alternatively, the measure of damages is the difference between the salary received for working at the Centre and a reasonable salary for the work undertaken.

62.

Further, in breach of the duties owed to the Claimant in relation to his health and safety and the duty of good faith (paragraphs 57.1, 57.2, 57.3, 58.1, 58.2 & 58.3 above):

62.1

The First and Second Defendants failed to undertake any risk assessments or to have any health and safety policy dealing with the health or safety of employees at the Centre, or to take any steps to consider the effect on their health of the regime for those living and working at the Centre or the effect upon them of the teachings and beliefs of the First Defendant (as set out in paragraphs 7 to 9 above).

62.2

The First and Second Defendant rejected the use of conventional medicine in favour of “healings” from the First Defendant and from other members of “The Family” either without any genuine belief in the effectiveness of those “healings” or with complete disregard for the situations in which those “healings” were shown to be ineffective.

62.3

The First Defendant advised and counselled the Claimant to undergo these “healings” in lieu of conventional medical treatment and the Second Defendant is vicariously liable for that conduct.

62.4

The First and Second Defendant exposed the Claimant to a foreseeable risk of injury from the activities at the Centre.

63.

As a result of the matters complained of in paragraph 62 above, the Claimant has suffered pain suffering and loss of amenity and loss and damage in that:

63.1

He became ill as a result of the stress caused by the work and the spiritual or quasi-religious environment within the Centre and the pressure to conform without question to the beliefs of the First Defendant; and,

63.2

Having become ill, he was then provided with ineffective “healings” by the First Defendant rather than conventional medical treatment which exacerbated his condition and delayed any prospect of recovery.

Particulars of Pain and Suffering

The Claimant began to suffer from a dissociative state in late 1996 which was treated intermittently by conventional medicine under a psychiatrist when the Claimant was living with his parents, but not when he returned to the Centre.

By the time the Claimant began to contemplate leaving the Centre he had depressive symptoms and high anxiety levels. After leaving the Centre, the Claimant required psychiatric assessment and care, treatment with antidepressant medication and expert counselling to assist him through the period after he left the Centre. The Claimant had to be assisted back into a world where he was able to think for himself and make decisions, rather than merely conform to the demands and teachings of the First Defendant.

…

Particulars of Loss and Damage

The Claimant was unable to resume his career in medicine upon leaving the Centre on 15^th December 2003, but had to recover from the physical and mental illness. As a result the resumption of his career resumption [sic] was delayed by a period of approximately 2 years.

A Schedule of Loss and Damage is attached as the Third Schedule to these Particulars of Claim.”

Served with the Particulars of Claim, and said in the Particulars of Pain and Suffering to be relied upon in support of the Injury Claim, was a report (“the Tylden Report”) dated 22 June 2004 of Dr. Elizabeth Tylden, a consultant psychiatrist. In the Tylden Report Dr. Tylden said that Dr. Azaz had first been referred to her in 1997, and that she had seen him on 10 March 2004 and regularly thereafter until the date of the Tylden Report. The Tylden Report concluded:-

“He tells me that before he left the centre, he had told his partner Miriananda that he felt suicidal. I found him to be depressed and slightly abstracted, he complains of hallucinations and disturbed dreams, but appears to be slowly recovering.

From what I have been told by Dr. Azaz and his parents Dr. Azaz had a personality change under strong suggestion following his sessions with Mr. and Mrs. Denton. Their suggestions had left him under their direction until they finally rejected him early this year since when he has returned to his previous personality and his interest in his profession which he had been persuaded to abandon while in the Self Realisation Healing Centre. I am of the opinion that the undertaking signed by Dr. Azaz on 23 January 1996 was signed when under the influence of the self healers just before he became mentally ill. I am interested in the fact that he signed as Yehu Azaz and wrote S Y Azaz underneath. The second document dated 11 January 2004 was signed when he was leaving the centre this year shortly before I myself and Dr. Orr his local Consultant Psychiatrist were called in by his G.P. Dr. Smith because of his psychiatric disturbance. It is signed clearly Simon Azaz although shortly after that date Dr. Azaz reverted to his previous name of Yehu Azaz.

In my opinion the Healing Centre had a duty of care towards Dr. Azaz which they breached during his illness in 1996 and his present illness in 2004 by not encouraging him to seek proper medical care in the face of life threatening illness.

I am also of the opinion that Dr. Azaz’s actions between 1992 and 2004 were dictated under the influence of Mr. and Mrs. Denton and other members of the Healing Trust and that his experiences while there caused his two episodes of severe dissociative mental illness.

… ”

Both of the two documents mentioned in the Tylden Report were put in evidence. The earlier (“the Joining Agreement”), dated 23 January 1996 and signed by Dr. Azaz in his normal signature, but with the initials S.Y. preceding his surname printed in manuscript below the signature, said this:-

“AGREEMENT FOR JOINING THE SELF-REALIZATION HEALING CENTRE

I joined the Self-Realization Healing Centre in September 1992.

I had been given the opportunity to join the Self-Realization Healing Centre, and wanted to take up this offer. I understood that during the period of my training I would be taught and guided by the teachers and healers at the Self-Realization Healing Centre.

I was certain of my choice, and made it without any pressure or influence being exerted by those I knew or anyone at the Self-Realization Centre.

I understood that in doing so I would become part of the family of healers and counsellors who lived and worked at the Self-Realization Centre, and would be working for the Self-Realization Healing Centre Charitable Trust.

I understood what was involved in joining the Self-Realization Healing Centre, and willingly and lovingly brought with me to share, and gave to the Charity all that was mine; including all monies, assets, furniture and other possessions.

I understood that in doing so I was making the Self-Realization Healing Centre my home.

I understood that if I decided to leave the Self-Realization Healing Centre in the future, I would be free to do so.

I agreed to abide by the Truth, and the teaching of Life, to trust in God and Guru, and to serve in any way I was asked.”

The later document (“the Leaving Agreement”) was dated 11 January 2004 and signed by Dr. Azaz in the name Simon Azaz, a name which he used for some purposes whilst living at the Base. Dr. Azaz said that the name “Simon” was given to him by Mrs. Denton to use in place of the name which he had been given by his parents, Yehu. The Leaving Agreement read:-

“AGREEMENT FOR LEAVING THE SELF REALIZATION MEDITATION HEALING CENTRES

I decided to leave the Self Realization Meditation Healing Centres.

I am certain of my choice, and made it without any pressure or influence being exerted by those I know or anyone at the Self Realization Meditation Healing Centres.

I understand that in doing so I will no longer be part of the family of healers and counsellors who live and work at the Self Realization Meditation Healing Centres, and will cease working for the Self Realization Healing Centre Charitable Trust.

I know I have no claim or right to any of the items I brought with me on joining the Self Realization Meditation Healing Centres, as I willingly and lovingly brought with me to share, and give to the Charity all that was mine; including all monies, assets, furniture and other possessions. At the time of joining I understood that if I decided to leave the Self Realization Meditation Healing Centres, I would be free to do so, but without any obligation for the Self Realization Healing Centre Charitable Trust to return any donations or chattels to me.

I therefore undertake to only take with me that which Trustees and the family have willing [sic] consented to and clarify and assert that I have no claim and will make no claim on anything within the Self Realization Meditation Healing Centres after Wednesday 10^th December, when I left.

I understand that in leaving the Self Realization Meditation Healing Centres they are no longer my home.

I undertake to maintain confidentiality of all aspects of Self Realization Meditation Healing Centres work, including details of patients and students and to maintain professional ethics at all times.

I still agree to abide by the Truth, and the Teaching of Life, to trust in God and Guru, and to serve in any way I can.”

The letters dated 2 May 2007 pleaded in the Particulars of Claim were each letters written by Messrs. Kirby & Co. (“Kirby”), solicitors acting on behalf of Dr. Azaz in this action. One was addressed to Mrs. Denton. The other was addressed to Mr. Daniel Casley of the Centre. The letters were lengthy and in the nature of letters before action, so hereafter in this judgment I shall refer to them collectively as “the Letters before Action”. In each letter demand was made for return of the Possessions.

The Work Claim seems rather to have disappeared from the Particulars of Claim at the point of the pleading of loss and damage. The Third Schedule to the Particulars of Claim simply set out what were alleged to be the gross sums Dr. Azaz would have earned in the medical profession, had he not abandoned that profession in (the assumption adopted for the purposes of the calculations in the Third Schedule) June 1992.

As is apparent from my citation of the relevant parts of the Particulars of Claim in this action, the alleged legal foundations for the Cash Claim, the Possessions Claim, the Career Claim and the Injury Claim were pleaded in a number of different ways.

In his written opening skeleton argument prepared for the purposes of this trial, Mr. Evan Ashfield summarised the claims of Dr. Azaz in this way:-

“3.

The individual claims brought require separate consideration within the preliminary issues and so the starting point is to identify those claims.

3.1

The first claim is the claim in actual or presumed undue influence (Paragraphs 36 to 47 of the Particulars of Claim).

3.2

The second claim relates to delivery up or damages for wrongful interference with the Claimant’s possessions (Paragraphs 48 to 56 of the Particulars of Claim).

3.3

The final claim is for damages for breach of contract and duty which is in 2 parts. First it covers many of the same matters as the first two claims. Secondly, it contains a personal injury claim. This entire section of the claim is at Paragraphs 57 to 64 of the Particulars of Claim.”

Mr. Ashfield did not mention in his summary the Work Claim.

Notwithstanding the reference in paragraph 3 of Mr. Ashfield’s written opening skeleton argument to claims for breach of contract, no contract was expressly pleaded in the Particulars of Claim.

What one seems to have in the Particulars of Claim is, first, assertions in paragraph 41 of entitlements not plainly linked to any cause of action other than undue influence. It appears that it is contended that a cause of action arises if a party abandons a career, or works for modest remuneration, as a result of undue influence. Those strike me as very novel propositions.

At paragraphs 48 to 50 inclusive, and 52 to 55 inclusive, of the Particulars of Claim, are pleaded alternative factual bases for wrongful interference claims in relation to the Possessions. The plea in the later paragraphs is of a straightforward right to possession of the Possessions. In this judgment I shall refer to that way of putting the Possessions Claim “the Possessions Claim Mark I”. The earlier plea is, in effect, of a loan of the Possessions to the defendants for an indefinite period, terminated by a demand made in the letter dated 2 May 2007. In this judgment I shall refer to that way of putting the Possessions Claim “the Possessions Claim Mark II”. The Possessions Claim Mark I and the Possessions Claim Mark II, although based on mutually inconsistent versions of the alleged facts, are at least relatively conventional in theory.

That part of the Particulars of Claim commencing with paragraph 57 appeared beneath the rubric “The breach of contract and duty claim”. Notwithstanding that rubric, no alleged contract was pleaded. What were pleaded were a series of rather exotic alleged “dut[ies] of care”, a formula normally suggestive of tortious duties in the law of negligence. I have the gravest doubts whether any of the alleged duties is capable of existing in law.

Dr. Azaz gave evidence before me. He did not suggest that the picture presented by Mr. James’s attendance note of the meeting with him and his wife on 23 July 1990, the terms of his own letter to Mr. James dated 16 April 1991, and his and his wife’s letter to Stephanie, that he had decided in 1990 not to seek a further medical post when the then current post came to an end in January 1991, and that he did not then seek a further post, was inaccurate. What he did suggest was that at that stage he had only decided on a career break of indefinite length, but perhaps two years, not to leave medicine permanently. However, on that evidence the pleaded case that he gave up his medical career as a result of the undue influence of Mrs. Denton is unsustainable. He had given up that career, at least for the time being, prior to any alleged undue influence. In those circumstances it seems to me that the allegations in relation to giving up Dr. Azaz’s medical career should be struck out of the Particulars of Claim in any event.

In response to a Request for Further Information pursuant to Part 18 of Civil Procedure Rules it was said that it was the case of Dr. Azaz that the various sums included in the Cash Claim were paid over to the defendants between, at the earliest, September 1992, and, at the latest, 1997. The answer to a similar request in relation to the Possessions Claim Mark I was less clear, but seemed to envisage giving over a similar period.

The claim form in this action was issued on 22 April 2008. The Particulars of Claim were dated 17 April 2008 and were served with the claim form. Also served at that time was a “Notice of funding of case or claim” dated 18 April 2008 which revealed that the case of Dr. Azaz was being funded by a conditional fee agreement between Kirby and Dr. Azaz dated 12 May 2004 (“the CFA”).

A full and lengthy Defence was served on behalf of Mrs. Denton and the Centre. It concluded with these pleas:-

“Limitation

111.

The Claimant’s claim for equitable relief is barred by the doctrine of laches as pleaded above.

112.

The Claimant’s claim includes a claim for personal injury and is statute-barred by virtue of s. 11 of the Limitation Act 1980 (“the 1980 Act”). The Claimant’s “date of knowledge” for the purpose of s. 14 of the 1980 Act was more than three years prior to the commencement of these proceedings.

113.

Further or in the alternative, by virtue of ss. 2 and 5 of the 1980 Act, any claim by the Claimant for breach of contract and/or duty prior to April 22, 2002 is statute-barred. If, which is denied, the Defendants were in breach of contract and/or duty in the period from April 22, 2002 to December 15, 2003 when the Claimant left the Centre, such breaches did not cause the Claimant any loss.”

In the light of the pleas of laches and limitation, on 16 February 2008 Master Leslie ordered that there be tried as preliminary issues in this action the following (“the Preliminary Issues”):-

“a.

Whether the Claimant was at any stage prior to the issue of this claim under a disability within then [sic] meaning of s.28 of the Limitation Act 1980 (“the 1980 Act”).

b.

Whether all or any part of the Claimant’s claim is an action for personal injuries within s.11 of the 1980 Act; if so, whether the primary limitation period had expired when this claim was issued and, if so, whether the Court should exercise its discretion to disapply the primary limitation period under s.33 of the 1980 Act.

c.

Whether all or any part of the Claimant’s claim is otherwise statute-barred under the 1980 Act.

d.

Whether the Claimant is entitled to rely upon s.32 of the 1980 Act.

d.

Whether all or any part of the Claimant’s claim for equitable relief is barred by the equitable defence of laches.”

For reasons which I shall explain, the first of the Preliminary Issues it was accepted did not require an answer from me because the answer was in the negative, so far as relevant. Again, the first two limbs of the second of the Preliminary Issues did not require answers from me, it being accepted that the Injury Claim was a personal injuries claim and that the primary limitation period in respect of that claim had expired prior to the commencement of this action. There was, however, some debate about the effect of the provisions of s.11 of Limitation Act 1980 (“the 1980 Act”) on other elements of the claims of Dr. Azaz, and to that debate I shall come.

It is convenient, before turning in detail to the Preliminary Issues, insofar as they require answer, to set out the material terms of the 1980 Act.

For present purposes the relevant terms of the 1980 Act are:-

“2.

An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

…

5.

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

…

11(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2)

None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4)

Except where subsection (5) below applies [not this case], the period applicable is three years from –

(a)

the date on which the cause of action accrued; or

(b)

the date of knowledge (if later) of the person injured.

…

14(1) Subject to subsection (1A) below [not material], 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; and

(d)

if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

…

(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.

…

28(1) Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.

…

(6)

If the action is one to which section 11 or 12(2) of this Act applies, subsection (1) above shall have effect as if for the words ‘six years’ there were substituted the words ‘three years’.

…

32 (1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either –

(a)

the action is based upon the fraud of the defendant; or

(b)

any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

(c)

the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

(2)

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

…

33(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 or likely to be 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.

…

38 …

(2)

For the purposes of this Act a person shall be treated as under a disability while he is an infant, or of unsound mind.

(3)

For the purposes of subsection (2) above a person is of unsound mind if he is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering his property and affairs.”

The expression “mental disorder” is defined in Mental Health Act 1983 s.1(2) as:-

“… mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind…”

Of these various descriptions, only “psychopathic disorder” is further defined, and that in terms not presently material. It was not suggested that Dr. Azaz suffered from psychopathic disorder at any time.

The first of the Preliminary Issues which does not necessitate an answer is “Whether the Claimant was at any stage prior to the issue of this claim under a disability within then [sic] meaning of s.28 of the Limitation Act 1980”.

Whilst the formulation of that issue was, perhaps, suggestive of it being relevant whether Dr. Azaz had been under a disability at any point between the accrual of a relevant cause of action and the issue of the claim form in this action, it was obvious, from a consideration of s.28(1) of the 1980 Act, that in fact the only possibly relevant question could be whether Dr. Azaz was under a disability “on the date when any right of action accrued for which a period of limitation is prescribed by this Act”.

It was agreed between Counsel at the trial before me that the answer to the correct question depended upon the expert psychiatric evidence put before me. The expert psychiatrist instructed on behalf of Dr. Azaz was Dr. Olga Tsatalou. That instructed on behalf of the defendants was Dr. N.L. Holden. In the usual way those experts had discussed the issues in this action relevant to their expertise and had prepared a joint statement setting out the matters about which they agreed and those about they did not agree. For the purposes of the trial before me Mr. Nicholas Yell, who appeared on behalf of the defendants, accepted the views of Dr. Tsatalou where they disagreed with those of Dr. Holden. There was in fact only one significant disagreement. The material views were set out in the joint statement. I set out that about which the experts agreed and the views of Dr. Tsatalou where she disagreed with those of Dr. Holden:-

“3)

Dr. Holden and Dr. Tsatalou agree that initially he [Dr. Azaz] became psychiatrically ill in autumn 1996 and there was evidence of improvement in his mental state by April 1997. At the time he was seen by Dr. Orr (Consultant Psychiatrist) who expressed uncertainty about the nature of his illness and concluded that Dr. Azaz was experiencing a severe dissociative state during which he became almost catatonic. Dr. Orr did not think that Dr. Azaz was well enough to make substantive decisions about the future.

4)

Dr. Tsatalou and Dr. Holden agree that Dr. Azaz developed a second episode of mental health problems in late 2003 in the context of Dr. Azaz becoming disillusioned with the group. He was again seen by Dr. Orr who diagnosed a moderately severe depressive illness without psychosis. He improved with the aid of Venlafaxine, an antidepressant, in the early months of 2004. He was noted to be well when seen by Dr. Tyldon [sic] and Dr. Orr in June/July 2004.

5)

Dr. Holden and Dr. Tsatalou agree that Dr. Azaz’s third episode of mental health problems arose in 2004. Dr. Azaz appears to have left the family home after an argument and made his home in Liverpool. He was identified as suffering from psychological problems in November 2004 when he was noted to be in debt and injuring himself in the context of what appeared to be a depressive illness. He was treated with Mirtazapine, an antidepressant and was referred to the local Crisis Team. In December 2004 he returned to his parents [sic] home in Oxfordshire and in January 2005 he was referred urgently to psychiatric services.

6)

He was subsequently assessed and treated by Dr. Tsatalou who diagnosed a recurrent depressive disorder and considered that at the time he was experiencing a moderately severe depressive episode with psychomotor retardation. Olanzapine (an atypical antipsychotic) was added because of anxiety and his troubled thoughts. He gradually improved over a period of a few months and was eventually discharged by the West Oxfordshire East CMHT in August 2005.

7)

Dr. Tsatalou considers that Dr. Azaz’s symptoms of depression and anxiety continued to improve but his functional recovery was slow and he required constant guidance and reassurance and found it difficult to make day to day decisions. Dr. Tsatalou considers that Dr. Azaz was suffering from a mental illness (severe depressive episode in the context of recurrent depressive disorder) and as a result of his illness he lacked capacity to deal with his financial affairs and to instruct his solicitors in the early part of 2005, and Dr. Tsatalou believes that this projected back into 2004. ”

Counsel agreed that the period of disability should be taken as between November 2004 and June 2005.

The expert psychiatric evidence as agreed was to the effect that Dr. Azaz was only “by reason of mental disorder within the meaning of the Mental Health Act 1983 … incapable of managing and administering his property and affairs” in a period after he had ceased to reside at the Base and after any cause of action against Mrs. Denton or the Centre had accrued. In those circumstances the provisions of s.28 of the 1980 Act were simply irrelevant.

It is material to notice that the agreed expert psychiatric evidence did not indicate that Dr. Azaz was suffering from any mental illness at the date he signed the Joining Agreement, although he was suffering from mental illness, while not incapable of managing his affairs, when he signed the Leaving Agreement.

It was accepted by Mr. Ashfield that the Tylden Report gave Dr. Azaz such knowledge about the Injury Claim as he needed to have in order for time in relation to that claim to start running under s.11(4) of the 1980 Act, if he did not have that knowledge before receiving that report. As Dr. Tsatalou and Dr. Holden noted in their joint statement, Dr. Tylden and Dr. Orr considered that Dr. Azaz was well by June/July 2004, that is to say, about the date of the Tylden Report. Consequently it was accepted, as it had to be, that this action was not commenced within 3 years of Dr. Azaz acquiring the knowledge necessary to set time running.

The proper construction of s. 11(1) of the 1980 Act

From the nature of the argument before me it was obvious that there were aspects of the Preliminary Issues which were not revealed, or not revealed clearly, by the Preliminary Issues as formulated. One of the most important of these was the question of the proper construction of s.11(1) of the 1980 Act.

Mr. Yell submitted at paragraph 6 of his written opening skeleton argument that:-

“The three year period applies where the damages claimed by the Claimant include any claim for personal injuries. Thus the inclusion of a personal injuries element, however slight, means that the three year period applies to the whole claim …”

Mr. Ashfield sought to answer that submission in his written opening skeleton argument in this way:-

“28.

The remaining claim is that for breach of contract and duty which includes a claim for damages for personal injury. The claim is in two distinct parts.

28.1

The first part is the breach of duty claim in paragraph 61 Particulars of Claim which has no personal injury element and so a 6 year limitation period applies.

28.2

The second part is the breach of duty claim in paragraphs 62 & 63 which do involve personal injury and so a 3 year limitation period applies.

29.

Within the strike out application [the antecedent to this trial], it became clear that there is a fundamental disagreement between the parties over the correct approach to limitation in the situation identified in the preceding paragraph.

29.1

The Claimant’s position is that if the personal injury claim were to be barred by limitation – then the balance of the claim must proceed. In short, the personal injury element can then be struck out leaving a valid claim.

29.2

The Defendant’s position is that if the personal injury claim were to be barred by limitation then the entire claim fails.

30.

The most common situation in which there is this dual limitation period happens [sic] is, of course, in road traffic accidents. The cause of action is negligence which has a 6 year limitation period unless the claim includes personal injury when it reduces to 3 years.

30.1

If all that is claimed is damage to a motor vehicle, a claimant has 6 years to bring the claim.

30.2

If all that is claimed is personal injury, a claimant has 3 years to bring the claim.

30.3

What if the claimant has both claims? If the personal injury claim is barred by limitation, can the other claim survive using the 6 year limitation period? It is submitted that the answer is plainly “Yes”. They are separate causes of action. Any other approach would be absurd. Indeed, what is barred is not the cause of action but the remedy. There is, it is submitted authority for this approach.”

The authority referred to was an unreported decision of the Court of Appeal, Shade v. Compton Partnership, in which judgment was handed down on 22 July 1999. A copy of the transcript of the judgments was put before me. The case was an unusual one. The claimant was a litigant in person. He brought proceedings against a firm of solicitors, principally for damages for professional negligence. However, he included in his claims a claim for damages for personal injury. The action was commenced more than 3 years after the events said to have given rise to the claims, but less than 6 years. Application was made to Master Eyre to strike out all of the claims of the claimant on the ground that the effect of s.11(1) of the 1980 Act was that the limitation period applicable to all causes of action was 3 years. Master Eyre struck out the allegations relating to personal injury, but not the remainder of the claims. The claimant appealed to Sullivan J and the defendants cross-appealed. The judge struck out all of the claims. The claimant then appealed to the Court of Appeal, which restored the decision of the Master. Mr. Ashfield submitted that the effect of that decision was, as it were, that a claimant who included in an action a cause of action for personal injury, and other causes of action, was only on risk of having the personal injury action struck out if the action was commenced more than 3 years after the requirements of s.11(4) of the 1980 Act were satisfied, and not on risk of having the entire action struck out. However, I do not think that that is correct.

The clear terms of s.11(1) of the 1980 Act apply “to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty … include damages in respect of personal injuries to the plaintiff”. The subsection is not limited to causes of action, but applies to actions. It is manifest that the subsection is seeking to cover actions in which a claim for damages for personal injuries is one of a number of claims. Notwithstanding that the example taken by Mr. Ashfield in paragraph 30 of his written opening skeleton argument was in fact, as it seems to me, a case in which different damage, some in respect of personal injuries and some in respect of physical damage to property, was being claimed consequent upon a single act of negligence, rather than a case of two causes of action, s.11(1), in my judgment, in fact applies in all cases in which an element in the claims is damages for personal injuries, if the other elements of claim are for damages as a result of negligence, nuisance, or any breach of duty, however arising. In particular, it would include a claim for damages for breach of contract quite separate from the circumstances which are alleged to give rise to a claim for damages for personal injuries. It would apply, for example, if an employee sought to recover, more than 3 years from the date of an accident in which he was injured, but less than 6 years, both damages for personal injuries and damages for breach of some provision of the contract of employment. It thus applies in the present case, as it seems to me, at least to the Injury Claim, the Career Claim, the Work Claim, and the Cash Claim and the Possessions Claim, insofar as the Cash Claim and the Possessions Claim were based on alleged breaches of contract or alleged breaches of duties of care.

In a case in which the effect of s.11(1) of the 1980 Act is to render claims which are not for damages for personal injuries vulnerable to limitation defences to which they would not be vulnerable but for being packaged with the claim for damages for personal injuries, the obvious way of saving the non-personal injuries claims is to abandon the personal injuries claim, by having it struck out, leaving the remaining claims in the action outside the ambit of s.11(1). In the case of Shade v. Compton Partnership Master Eyre and the Court of Appeal, as it seems to me, took pity on the litigant in person and took for him the course which a properly advised litigant would have taken. That does not mean, as it seems to me, that all litigants who seek to combine a claim for damages for personal injuries vulnerable to attack under s.11(1) with other claims get a free go, once a limitation defence is raised, in the sense of only thereafter being vulnerable to losing the claim for damages for personal injuries. A court might smile upon a party, faced with the s.11(1) dilemma, who seeks to save what he can by abandoning by amendment the personal injuries claim, but where a party has been invited to consider abandoning by amendment the personal injuries claim, as I invited Mr. Ashfield to, and has made a considered decision not to do so, that party must expect s.11(1) to be applied to him in its full rigour.

In the result, subject to the issue, to which I shall come, of the effect of s.33 of the 1980 Act, it seems to me that at least the Injury Claim, the Careers Claim (if I had not already struck it out), the Work Claim (if it survives) and the Cash Claim and the Possessions Claim, insofar as based on some alleged breach of duty, whether in contract, tort or otherwise, should be dismissed as statute-barred.

Fraudulent concealment

The other major issue of law, as opposed to questions dependent upon the application of the relevant law to findings of fact, which arose concerned what is popularly called “fraudulent concealment”, that is, the applicability of s.32(1) of the 1980 Act. The issue was, essentially, how, on any version of the pleaded facts of this case, the provisions of s.32(1) could possibly be relevant.

The parties exchanged statements of case on this issue.

The position of the defendants was, quite simply, that the provisions of s.32(1) had no application.

The case for Dr. Azaz was that he was entitled to rely on s.32(1)(b). He did not seek to rely on s.32(1)(a) or (c), no doubt because there was no allegation of fraud or mistake in the Particulars of Claim. The pleaded case of Dr. Azaz on fraudulent concealment was divided into three sections. The first section was entitled “Background” and need not be set out in this judgment. The second section, which also need not be set out in this judgment, was entitled “The relationship between the parties”. In summary that set out again the contentions pleaded in the Particulars of Claim about Mrs. Denton being the head of a spiritual or quasi-religious group to the beliefs of which Dr. Azaz subscribed from October 1991. The core of the submissions in the pleaded case – for they were adopted as such in the written opening skeleton argument of Mr. Ashfield – was what was set out under the rubric “The specific matters relied upon as “concealment”:-

“15.

Until 15^th December 2003, the Claimant remained one of those attending (and, save as set out in the Particulars of Claim) living at the Centre.

16.

The period of time during which the Claimant remained under the undue influence of the Defendants lasted beyond 15^th December 2003 and extended until he was able to realise that he had been under the undue influence of the Defendants and free himself from that influence and begin to make independent decisions.

17.

During the period whilst the Claimant was under the undue influence of the Defendants – all the facts relevant to the causes of action now being brought (i.e. the facts pleaded in relation to each claim) were concealed from the Claimant by the Defendants through the deliberate exercise of that undue influence. In particular the Claimant relies on the matters set out in paragraphs 60 to 63 of the Particulars of Claim as breaches of duty towards him that were concealed from him.

18.

In further breach of the duties owed to the Claimant, the Defendants failed to inform the Claimant that he was entitled to the return of the money and/or property he had provided to them at any time but required him to sign documents dated 23^rd January 1996 and 11^th January 2004 which purported to confirm the Defendants’ entitlement to that money and those possessions.

19.

The undue influence claims brought by the Claimant are not subject to any limitation period. It follows that the Claimant relies upon s.32(1)(b) of the Limitation Act 1980 as follows:

a.

In respect of the possessions claim set out in paragraphs 48-56 of his Particulars of Claim, the Claimant’s primary contention is that the period of limitation is 6 years and it begins with his request for return or delivery up of those possessions in May 2007. These proceedings were issued within the 6 year limitation period starting on that date. The Claimant only relies upon s.32(1)(b) if (and to the extent that) the 6 year limitation period begins to run from a date more than 6 years prior to issue of proceedings in April 2008 (which would be a date prior to his leaving the Centre in December 2003).

b.

In respect of the common law breach of contract and duty claims set out in paragraphs 57-64 of his Particulars of Claim, the Claimant’s primary contention is that the period of limitation is 3 years from his date of knowledge in relation to the personal injury claim and 6 years in relation to the other claims. The Claimant relies upon s.32(1)(b) as an alternative to his reliance upon the matters set out in paragraphs 29 to 32 of his Reply.

20.

As a result, upon the proper interpretation of s. 32(1)(b) of the Limitation Act 1980 – the Claimant’s causes of action against the Defendants did not begin to run until the Claimant had freed himself of the effect of that undue influence and actually discovered (or could with reasonable diligence have discovered) all the facts concealed from him. The Claimant contends that this was well after he left the centre on 15^th December 2003 and was not until about January 2006. Accordingly, this claim is brought within both the 3 year and 6 year Limitation periods applicable.”

The submissions of Mr. Ashfield are difficult to follow. In the passage cited he did not identify what fact or facts it was contended had been concealed from Dr. Azaz, by whom or in what manner. It seemed that his assertion was that by exercising undue influence upon Dr. Azaz Mrs. Denton, or the Centre, had concealed from him fraudulently facts relevant to causes of action not said to depend upon the exercise of undue influence, for Mr. Ashfield’s submission in relation to causes of action said to be based on the alleged exercise of undue influence was that no period of limitation was prescribed by the 1980 Act. However, as it seems to me, the alleged exercise of undue influence is irrelevant to the question whether the conditions set out in s.32(1) of the 1980 Act are satisfied. Possibly the exercise of undue influence might prevent someone who was subject to it taking some step, like suing the person exercising the influence, which he might otherwise be inclined to take. However, that has nothing to do with whether the person the subject of the undue influence was aware of the facts which would justify taking proceedings. Indeed, it is rather implicit in the analysis that the person the subject of the undue influence was aware of the relevant facts, but was dissuaded by the influence from doing anything in consequence of that knowledge. Whether that is so or not, there is just no connection in logic between the exercise of undue influence and knowledge, or ignorance, of facts relevant to a cause of action.

In his closing submissions Mr. Ashfield did not abandon the reliance of Dr. Azaz upon the provisions of s.32(1) of the 1980 Act, but he did focus his attention on other aspects of the Preliminary Issues.

In the result the answer to Preliminary Issue d is in the negative.

Before turning to consider the facts relevant to the issue whether, in the exercise of the discretion of the court conferred by s.33 of the 1980 Act, it is appropriate to direct that the provisions of s.11 of the 1980 Act should not apply “to the action, or … any specified cause of action to which the action relates”, it is convenient to consider the guidance to be found in reported authorities as to the approach to be adopted.

In Robinson v. St. Helens Metropolitan Borough Council [2003] PIQR P128, at pages 139 – 140 Sir Murray Stuart-Smith said:-

“32.

The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases [a reference, I think, to the type of case before the court, in which allegations of negligence in relation to education were made] are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.

33.

The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant’s dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant’s majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.”

Some of the observations in that passage were specific to the type of case before the court, but others, such as the onus being on the claimant to establish that it would be equitable to allow the claim to proceed, the relevance of proportionality, the significance of the presence or absence of relevant witnesses or documents on the defendant’s side, the presence or absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability, and the likely amount of damages if the claim succeeds (plainly linked to the preceding consideration), seem to me to be of general application. The passage cited was considered by Lord Hoffmann and the other members of the House of Lords in Adams v. Bracknell Forest Borough Council [2005] 1 AC 76, another dyslexia case, at page 91, where, having set out the passage at paragraph 54, Lord Hoffmann said, at paragraph 55:-

“Peter Gibson and Brooke LJJ agreed. Their Lordships think that these observations from judges with considerable experience of exercising and overseeing the section 33 jurisdiction carry great weight.”

In Horton v. Sadler [2006] UKHL 27 the House of Lords was concerned with a claim for damages for personal injuries suffered in a road accident. The leading speech was that of Lord Bingham of Cornhill. At paragraph 33 of his speech he said:-

“In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant’s action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson at p. 751, “a curious hotchpotch”, for reasons which he examined. But there is, as it seems to me, a problem underlying the whole of section 33: that it appears to treat the plaintiff and the defendant as individuals liable to suffer prejudice, and with no recognition that it is frequently the competing interests of insurers which will be liable to suffer prejudice. …Faced with this problem, but recognising the reality of insurance, the courts have routinely and rightly taken account of the parties’ insurance rights. Thus a plaintiff’s rights against his insured solicitor are very relevant (Thompson, p.752) but this does not mean that refusal of an order under section 33 will not prejudice him to some degree (Thompson, pp. 750 – 751).”

Mr. Yell submitted that a consideration for the court to take into account in considering the exercise of its discretion under s.33 of the 1980 Act is the prospects of success of the causes of action affected by s.11. I think that that must be right. Plainly the prospects of success are one of the circumstances of the case, all of which must be considered. Wright J, in Hodgson v. Imperial Tobacco Ltd., unreported, 4 February 1999, considered that the prospects of success of a claimant fell to be considered in the context of the degree of prejudice to the claimant if a direction under s.33(1) were not made, but I think that in reality it is not important whether one considers the point in the context of prejudice, or as one of the circumstances of the case relevant to the question whether the discretion of the court should be exercised – I think it really comes to the same thing. What Wright J said was:-

“One of the primary factors that has to be taken into consideration when considering an application under s.33 is the extent to which a Plaintiff will be prejudiced by the operation of the time-bar if a direction under s.33(1) is not made. On the face of it the nature of the prejudice is obvious – each Plaintiff will lose his cause of action. But in order to assess the degree of prejudice that he will suffer as a result, it is necessary for the Court to take an overall view, admittedly only on a very broad basis, of the Plaintiff’s prospects of success; see Dale v. British Coal Corporation [1992] PIQR 373 at p.380-381 and Forbes v. Wandsworth HA [1997] QB 402 at p.417E per Stuart-Smith LJ. The prospects of success include not only the Plaintiff’s chance of being able to establish his primary case on liability, but also the quantum of any likely recovery having regard both to the extent of his injuries and the extent to which any damages otherwise recoverable may fall to be reduced as a result of any allegations of contributory negligence which appear on the fact [sic] of it to be open to the Defendants.”

As I have pointed out, each of the alleged claims of Dr. Azaz is affected by the operation of s.11 of the 1980 Act to some extent. The Injury Claim cannot be pursued unless the discretion of the court is exercised in favour of Dr. Azaz under s.33. The Career Claim and the Work Claim also cannot be pursued at all unless the discretion of the court is exercised in favour of Dr. Azaz. I think that it is obvious from my conclusion that the Career Claim should be struck out and from the fact that no loss seems to be attributed to the Work Claim, that these two elements of claim fail at this point in the context of s.33, if it were necessary to consider them in that context. The Career Claim has no prospect of success on the evidence put before the court. The Work Claim has no prospect of success because no loss is attributed to it. The Cash Claim and the Possessions Claim are only dependent upon the exercise of the discretion of the court under s.33 insofar as the legal foundations for the claims are said to be breach of contract or other breach of duty, such as negligence. It must be relevant, as it seems to me, to the exercise of the discretion under s.33 that those claims are also alleged to be founded on causes of action which do not fall within the scope of s.11 in any event. If and insofar as the causes of action which are not vulnerable to a limitation defence under s.11 seem in themselves, and subject to the issue whether the facts alleged to support the causes of action can be proved, to be good causes of action, the invocation of the discretion under s.33 is unnecessary. On the other hand, if the other causes of action seem to have less prospect of success than the causes of action to which s.11 applies, leaving aside the effect of s.11, that would seem to point to the exercise of the discretion in favour of the claimant. If there are difficulties in the case whichever cause of action is relied upon, clearly other relevant factors are likely to point to the appropriate conclusion.

An aspect of the prospects of success to which Mr. Yell drew particular attention was the problem of credibility of Dr. Azaz. Mr. Yell submitted that it was appropriate, in considering “all the circumstances of the case”, to take into account in favour of the defendants that there are clearly in this case obstacles in the face of Dr. Azaz in establishing any cause of action, by reason of the fact that accounts which he had given in the past are inconsistent with his current evidence as to his relationship with Mrs. Denton and the Centre and the circumstances in which he and his wife came to give the Cash and the Possessions to the Centre. One problem was the terms of the Joining Agreement. On its face it is inconsistent with the Cash Claim and the Possessions Claim, and not supportive of the Injury Claim. Dr. Azaz was asked about that in cross-examination. It was suggested to him that it was he who had drafted the Joining Agreement and that it had been done following the settlement of an action (“the Davies Action”) which had been brought against the Centre by Mrs. Azaz following her departure from the Base. In the Davies Action Mrs. Azaz sought the return of cash and possessions which she had given to the Centre on going to live there with her husband, on the grounds that the gifts in question had been induced by undue influence. I think that Dr. Azaz accepted that he had in fact drafted the Joining Agreement, in a form appropriate to be completed by everyone living at the Base, but he contended that he had done so whilst under undue influence. He did not elaborate as to the undue influence, or when it had been exercised, or what form it took. The formula “undue influence” was rather a mantra which he employed to seek to explain away any contemporaneous document or reference which was inconvenient to the case which he wished to advance in this action. Everything Dr. Azaz did, whilst at the Base, as I understood it, had been done following the instructions of Mrs. Denton, including the preparation and signature of the Joining Agreement. I do not have to reach any conclusion as to the adequacy of his explanation, and, indeed, I ought not to do so because, as I explain later in this judgment, this action may go to trial on one aspect of the case. However, the lack of an obviously convincing answer to the evidential value of the Joining Agreement is, I think, certainly a matter which I should take into account in my consideration of the factors relevant to a decision under s.33 of the 1980 Act. As I have noted, on the agreed psychiatric evidence put before me, Dr. Azaz was not suffering from mental illness when he drafted and signed the Joining Agreement.

In contrast, at the date of the signature of the Leaving Agreement, upon which Mr. Yell also relied as casting doubt on the credibility of Dr. Azaz, Dr. Azaz was, as was common ground, suffering from mental illness, albeit not to such an extent as not to be capable of managing his affairs.

Mr. Yell relied, in addition to the Joining Agreement and the Leaving Agreement, on two statements made by Dr. Azaz in the context of the Davies Action as being inconsistent with his present account of events, and thus casting doubt on his credibility. The Davies Action started with an application (“the Injunction Application”) for a worldwide freezing injunction made on 14 December 1994. It was commenced formally by a claim form issued on 17 January 1995. It was settled in February 1996.

In the context of the Injunction Application Dr. Azaz made a statement described as “STATEMENT BY DR YEHU EUGENE ZEEV AZAZ CONCERNING THE INJUNCTION DATED 14 DECEMBER 1994 FOR HIGH COURT ACTION BY LIZANNE AZAZ AGAINST THE SELF-REALIZATION HEALING CENTRE” (“the Injunction Statement”). The Injunction Statement was dated 7 January 1995 and was signed by Dr. Azaz using his usual signature, rather than the first name Simon, which he used for some purposes at the Base. The Injunction Statement included these passages:-

“Lizanne, and I, met with Mata [Mrs. Denton] and Peter Denton, in late summer, 1992, to talk about what was involved in joining the SRHC [the Centre]. Lizanne, and I, already knew from our experience of the Centre, and, living there for a week, that the small group of healers, living and working at the Centre, were called the Alpha-Omega family; that they lived together, as any family of people does, sharing their home, and their belongings, with each other; and, in this case, with the people staying at the Centre. Lizanne, and I, learnt that everybody there, had brought with them, their furniture and possessions; and, had donated any money they had, to the Centre, and the Charity, fully making it their home. Lizanne, and I, were told that this was important, and helped everybody to fully feel, that they were an equal part of the family; and, that it did not matter, how much or how little, each person had to bring; it was the person, who was important to them, and, to the Centre; not their possessions. We were told, that as part of the family, everybody owned everything between them, (not, “owned nothing”, as stated); and, the Centre fed and looked after their basic needs, (bed, heating etc.); each person, being there voluntarily, as a charity worker, received a small wage of £25 (now £30) a week, (not “earn nothing”, as stated). Mata and Peter, did not know about our money, and investments, before we informed them, at one of these meetings; the complete amount involved, was not apparent until after we had joined the Centre. When we told her, Mata said, that she would have preferred it, if Lizanne, and I, had had less money, as looking after large quantities, would cause the Centre extra work, in addition to the healing.

…

There was no pressure (of any sort) on Lizanne, or persuasion to join, either from Mata, or Peter. It was Lizanne, and my, choice, as to whether we wanted to join, on these terms. I said very little about my opinions, at these discussions about the transfer of money, because the monies were largely Lizanne’s, and Lizanne, had to decide for herself, whether she wanted to join the Centre enough, to bring her investments. We did ask many questions about joining, so that each of us understood, what was involved. I still believed that it was the best course, for the both of us, despite the large sums involved, and, was also willing not to join the Centre, if Lizanne decided against it; I did tell Lizanne this, before we joined.”

Subsequently a witness statement (“the Witness Statement”) was prepared by, or for, Dr. Azaz in draft for use in the Davies Action. The Witness Statement was not signed by Dr. Azaz, but the copy adduced in evidence at the trial did bear upon it manuscript corrections and additions in his hand. The Witness Statement included:-

“37.

There was no pressure of any sort on Lizanne or myself to join or donate property to the Centre, either by Mr. or Mrs. Denton or anyone else. I said very little at these discussions about the transfer of moneys because it had largely been Lizanne’s originally and Lizanne had to decide for herself whether she wanted to join the Centre enough to bring these investments. We did ask many questions about joining so that each of us understood what was involved. I was willing not to join the Centre if Lizanne decided against it and I told Lizanne this before we joined.

38.

Mrs. Denton said nothing to us about protecting our wealth being anti-God or an act of fear. She did not say that it was impossible for Lizanne to retain her wealth and serve God fully. …

39.

Mrs. Denton emphasized that if we wanted Self-Realization it would take 100% commitment in our willingness to look at ourselves and learn. She made no manipulative arguments such as failing to give up wealth meant that Lizanne had no faith in God or that surrendering her wealth was surrendering to God. Lizanne was far too bright and wary to do anything but react against any such arguments. She told me nothing about such comments. If she had, we would have never set foot in the Centre again. She told me of no occasion where she was tearful and begging on her knees for direction from Mrs. Denton. This is farcical and sounds grossly exaggerated for Lizanne then or at any time. These allegations have only been made in this legal action. Mrs. Denton was scrupulous to make it clear that joining the Centre was our decision. She understood that unless this was so, there would not be sufficient commitment and no point.

39.

Mrs. Denton made no attempt to persuade Lizanne that Peter James should not attend these meetings to discuss joining the Centre and suggested to us (when Lizanne raised his name) that we should talk to him before making up our minds. She advised such a meeting and did not discourage it as some sign of weakness or for any other reason. Mrs. Denton said that Peter James might not understand a move to the Centre based on spiritual trust and beliefs, but she made no negative comments to devalue his advice such as he was part of the ‘material world’ or should be ‘blocked out’ or ‘deflected’.

…

41 Lizanne and I discussed in depth the pro’s and con’s of joining the Centre, including what would happen if we wanted to leave and did not get much of our money back. Lizanne and I agreed, at Lizanne’s suggestion, that we could see this as giving our money to the best cause and working to help people that we knew of. Lizanne was in favour at times and hesitant or against joining at other times because of the uncertainty of the future. After all our discussions, when I asked Lizanne if she wanted to join she said “yes” that she wanted to put her trust in God and in Mrs. Denton as this was the way forwards for her.

…

43.

There was simply no influence exercised over Lizanne and I to join the Centre. Mr. and Mrs. Denton gave us the information we needed to make the decision. After hours of discussion we decided separately and together that we each wanted to join and wanted both to join. Lizanne initially said that she needed to give it between 3-5 years in order to get into the training and get the benefit of it. She later changed this to one year and then to 6 months. ….”

A further point made by Mr. Yell, which I think is relevant to my consideration of the exercise of my discretion under s.33 of the 1980 Act, is that Dr. Azaz clearly appreciated at the time of the Davies Action that it was possible in law for someone who had given money or possessions to someone under the undue influence of the donee to reclaim what had been given, for that was what Mrs. Azaz claimed in the Davies Action, and achieved by the terms of settlement of that action. The evidence was that Dr. Azaz had had the conduct of the Davies Action on behalf of the Centre. In his second witness statement made for the purposes of this action, dated 23 June 2009, he complained, at paragraph 6, that that role had been thrust upon him. On the agreed psychiatric evidence Dr. Azaz was not suffering from mental illness during the period of the Davies Action.

In addition, Mr. Yell submitted that it was material, in the context of the prospects of success of the claims of Dr. Azaz, having regard to the legal and credibility issues to which I have referred, to take account of the situation which would prevail in the event that this action went to trial on causes of action which are weak, legally and/or factually, and those causes of action failed. The defendants obviously win, on this hypothesis, and would have a legitimate expectation of obtaining an award of costs in their favour. However, the evidence of Dr. Azaz in cross-examination was that he would not be able to pay the costs of the defendants, if they won, and he had not taken out After The Event (“ATE”) insurance to cover any liability for costs which he might incur. In short, I think that the point made by Mr. Yell was really this: it is one thing for a claimant who is able to pay the costs of the defendant, if he loses, to pursue a weak claim, but it would be unjust to the defendant to permit a claimant with a weak case to pursue his claim if the effect would be that, even if he won, the defendant would be left bearing his own costs. There is, I think, much force in that submission. Mr. Ashfield submitted that a lot of that force is dissipated in a case in which the action is going to go to trial in any event on causes of action which are not vulnerable to s.11 of the 1980 Act. That may be so, but it depends upon the scope of the issues which will be investigated at the trial in any event, as compared with the scope of the issues which would fall for decision if the discretion of the court were exercised in favour of Dr. Azaz under s.33 of the 1980 Act.

A point which Mr. Yell relied upon as covering the hypothesis that Dr. Azaz might succeed in the claims, or some of the claims, vulnerable to s.11 of the 1980 Act was the financial impact on the Centre and Mrs. Denton if Dr. Azaz did succeed. The evidence of Mr. Daniel Casley, a trustee of the Centre, at paragraph 45 of his witness statement dated 22 June 2009 was that:-

“In addition to the evidential concerns which I have set out at paragraphs 26-36 above, the delay by the Claimant in bringing a claim will have caused the Centre considerable financial difficulties. In 2004 the Centre agreed an ambitious new building project which included the building of a new teaching room for Yoga classes and therapy, and a new bedroom, bathroom and toilet for disabled guests at the Centre. A ‘poly tunnel’ which used to cover the Centre’s swimming pool has been replaced by a permanent structure so that guests (as well as the local community) can use the swimming pool all year round. These costs amounted to around £380,000. I can confirm that, had proceedings been contemplated at this time, we would not have agreed to this expenditure.”

In addition, it seemed that the Centre had insurance in relation to employers’ and public liability, but no other insurance which might provide indemnity in respect of the claims of Dr. Azaz. The insurance was thus thought to cover the Injury Claim only. It did not appear that Mrs. Denton personally had any relevant insurance.

Mr. Ashfield pointed out that no accounts of the Centre had been produced by way of disclosure, no minutes of meetings of the trustees of the Centre had been disclosed, and no documents relating to the building works described by Mr. Casley had been put in evidence. All of that is correct. It is also correct, as Mr. Ashfield contended, that the relevant policy or policies of insurance held by the Centre had not been produced. However, Mr. Ashfield did not contend that the building works described by Mr. Casley had not been carried out. Rather Mr. Ashfield’s submission was that the Centre had been committed to the expenditure in question before Dr. Azaz had left the Base, because planning permission for the works in question had been obtained prior to his departure. As a fact, I think, Mr. Casley accepted the alleged timing of the grant of planning permission as correct. However, it certainly does not follow, in my judgment, from the obtaining of a grant of planning permission, that the person to whom the grant is made is thereby committed to taking advantage of the permission. Mr. Casley told me that the building works which he described were in fact undertaken in about February 2004.

Mr. Ashfield did not contend that the Centre, or Mrs. Denton, in fact had the benefit of more extensive insurance cover than was revealed by the evidence. He did elicit from Mr. Casley in cross-examination that, at the time of the settlement of the Davies Action, the Centre had been able to raise a sum in excess of £1 million to meet the amount agreed to be paid to Mrs. Azaz, together with interest and costs, and the costs which it itself incurred in the Davies Action. Mr. Casley explained that the sum in question had been raised without disposing of any assets, but by borrowing, and that the borrowing had imposed straightened circumstances on the Centre for a number of years. In response to questions from Mr. Ashfield Mr. Casley explained that the existing assets of the Centre comprised the Base, another property on the south coast of England, and, perhaps, a property in Wales. It appears that there is a continuing dispute as to the ownership of the property in Wales. Subject to that dispute, Mr. Casley put the value of the assets of the Centre at in excess of £1 million, but less than £2 million.

On the evidence I accept that in about February 2004 the Centre undertook expenditure at the Base of the order of £380,000 which it would not have undertaken if it had anticipated the making by Dr. Azaz of the claims made in this action. I reject the suggestion that the Centre was committed to undertaking those works before Dr. Azaz left the Base. I accept that the only possibly relevant insurance available to the Centre provides cover, at best, in respect of the Injury Claim only. It is plain, on the evidence, that neither the Centre nor Mrs. Denton would be in a position easily to pay to Dr. Azaz any significant sum, other than one provided by insurers in respect of the Injury Claim, in the event that any of Dr. Azaz’s claims in this action succeeded.

Turning to the specific factors listed in s.33(3) of the 1980 Act, for the purposes of s.33(3)(a) the length of delay is different in relation to each of the elements of Dr. Azaz’s claim vulnerable to a defence under s.11. Any cause of action based on contract or on tort in relation to the Cash Claim or the Possessions Claim Mark I must have accrued when the relevant items were delivered, alleged to have been between September 1992 and 1997. The Career Claim, if of any substance, must have accrued when Dr. Azaz abandoned his medical career, on the evidence at the end of January 1991. The Work Claim I think I need not consider further, but if there had been any substance to it, it seems to me that a claim would have accrued each time a reasonable sum should have been paid, but was not paid. The Injury Claim, Mr. Ashfield contended in his written closing submissions, accrued on 22 June 2004. What Mr. Ashfield submitted was:-

“17.

This claim includes a personal injury claim so 3 year limitation period from date of knowledge.

18.

Date of Knowledge is when? Dr. Tylden’s Report 22^nd June 2004 … sent to solicitors. Thus a 3 year limitation period expired on 22^nd June 2007. Proceedings not issued until 22^nd April 2008 so 10 months late.”

That submission in relation to the Injury Claim treats it as a single cause of action, implicitly with the three episodes of mental ill-health being but the consequences of the unlawful act or acts complained of. While, theoretically, one might regard the episode of ill-health between the autumn of 1996 and April 1997 as consequent upon one series of alleged unlawful acts, and the episode of ill-health commencing in late 2003 and continuing until about June or July 2004 as consequent upon a further series of alleged unlawful acts, the third episode of ill-health, between November 2004 and June 2005, could only be the subject of a claim at all if said to be attributable to matters arising prior to the departure of Dr. Azaz on about, it seems 10 December 2003. Consequently, it seems that Mr. Ashfield really had to analyse the Injury Claim in the way he did.

The cause of action in relation to the first episode of ill-health accrued in the autumn of 1996, when Dr. Azaz first suffered psychiatric illness. One might have thought that, on recovery from that episode in about April 1997, Dr. Azaz would have known that he had been ill; he would have known, if it was the case, that the circumstances in which he had been living and working at the Base had been the cause of that illness; and he would have known who was responsible for those circumstances. On that analysis, time would have started to run in respect of the first episode of ill-health in April 1997 and would have expired in April 2000. However, it was not put to Dr. Azaz that he possessed all the knowledge necessary to commence the Injury Claim as early as April 1997. I think that it was rather accepted on both sides that, as Mr. Ashfield submitted, he did not possess the requisite knowledge until he received the Tylden Report. By that time, of course, he had also suffered the second episode of ill-health. If one had to consider the second episode of ill-health separately in relation to a cause of action, it is difficult to see how Dr. Azaz could have had knowledge of such cause of action any earlier than his recovery from that episode at about the time of the Tylden Report.

Mr. Yell reminded me that in Donovan v. Gwentoys Ltd. [1990] 1 WLR 472 the House of Lords decided that, while, on proper construction of s.33(3)(a) and (b) of the 1980 Act, the “delay” mentioned in those paragraphs was delay after the expiration of the limitation period, that did not mean that the court, when considering the exercise of its discretion under s.33, had to leave out of account delay before the expiry of the limitation period. The leading speech was that of Lord Griffiths, but a succinct exposition of the point is to be found in the speech of Lord Oliver of Aylmerton at pages 479 – 480:-

“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal grounds for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two years later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff’s claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses’ memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers.

Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff’s failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge’s judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after the expiry of the limitation period, he felt constrained to regard the time which had been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.”

The effect of that decision, I think, is that the submission of Mr. Ashfield that the issue of the claim form in this action was only 10 months late is simply immaterial, if, by that submission, Mr. Ashfield intended that attention should be focused only on that period of 10 months. Moreover, it is material, in considering the issue of delay, also to have regard to the provisions of s.33(3)(e) of the 1980 Act, “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”. Taking a broader view, in the context of s.33(3)(e), Dr. Azaz entered into the CFA with his present solicitors, Kirby, on 12 May 2004. Mr. Ashfield accepted that Dr. Azaz knew all that he needed to know in order to justify commencement of an action in respect of the Injury Claim when he received the Tylden Report. Essentially, therefore, Dr. Azaz was armed with legal advice and expert evidence in support of the Injury Claim by the end of June 2004. At that point he was not suffering from mental illness, although a further bout of illness rendered him unable to manage his own affairs between November 2004 and June 2005. Thus the Injury Claim could have been commenced and pursued between about June 2004 and November 2004, or at any time after June 2005. As from 25 January 2006, according to his witness statement dated 23 June 2009, Dr. Azaz was working at Abingdon Community Hospital as a doctor in paid employment. One might suppose that, if he was robust enough to undertake the care of the sick, he was able, if he chose, to commence proceedings in respect of the Injury Claim. However, that did not happen. On 2 May 2007 Kirby wrote to the defendants the Letters before Action. Dr. Azaz was asked in cross-examination why proceedings were not commenced when Kirby received from Messrs. Dyne Drewett, solicitors at that time acting on behalf of Mrs. Denton and the Centre, a response to the Letters before Action rejecting any claims. Dr. Azaz had no explanation. The only explanation offered for the delay in commencing this action until 22 April 2008 was that Dr. Azaz had been advised by Mr. Graham Baldwin, a counsellor, in terms set out in paragraph 23 of the witness statement of Mr. Baldwin dated 5 November 2008 as follows:-

“During 2005, the question of Yehu’s proposed legal action was raised by him on a number of occasions. The concern that I had was that any additional stress on top of his retraining and re-entering medicine as a lowly house officer with the long hours on duty that this entailed would be likely to cause a relapse and therefore legal action was inadvisable. It was clear that in order of priority his mental health and restarting his career was far more important than obtaining redress and recompense from his guru. I spoke to both Dr. Smith [Dr. Azaz’s general medical practitioner] and Dr. Tsatalou as part of my conversation mentioned in para. 18 and following the discussion about this strongly advised Yehu that it was not the right time to pursue his action and that he should wait to see how things developed with his health and his return to medicine.”

Mr. Baldwin went on in his witness statement to express his own views about what happened, or did not happen, after 2005, without it being clear whether he communicated those views to Dr. Azaz. In cross-examination he said that he advised Dr. Azaz against commencing legal proceedings at the end of August or beginning of September 2005. In his witness statement Mr. Baldwin said about later times:-

“25.

The first two years of Yehu’s GP course involved him working as a Senior House Officer for a number of departments within the hospital. Such work involved him returning to a regime of doing nights on call and initially he found this incredibly stressful and tiring. This was made worse by the fact that by now he was 47 years of age, considerably older than his peers and also had much studying to do to refresh his medical knowledge. Having been so long out of hospital medicine, he was not used to working such long hours and he became more and more tired. It is my firmly held opinion that if at this time he had had to concentrate on the pursuit of his legal action, which would have involved remembering all of the events that had so traumatised him during his years within the group, it would have proved much too much for him and he would have been likely to have had a further relapse or psychotic break.

26.

It was only when it became obvious that his medical career was back on track and that he had got over the stress of 24 hour on call rotas that I was prepared to give my support when asked by Yehu and his parents in early 2007 to him pursuing the group for redress. …”

Consequently it seems that Mr. Baldwin advised Dr. Azaz in early 2007 that he was fit to commence an action. However, that is not what happened.

Mr. Yell submitted that, as Dr. Azaz had the benefit of the advice of Kirby from at least May 2004, it should be assumed that either that firm failed to draw the attention of Dr. Azaz to the need to commence this action before the expiration of the limitation period in relation to the Injury Claim, in which event it would seem that Dr. Azaz had a good cause of action against Kirby for failing to give that advice, or Kirby did give that advice, but Dr. Azaz did not accept it, in which event the consequences fall upon his own head. Certainly those alternatives seem to be the most plausible, although there may be others.

Mr. Ashfield put before me nine witness statements, principally made by friends or relations of Dr. Azaz, in which, in each case, the maker expressed views as to how Dr. Azaz had seemed in 1997 or in 2003, 2004 or 2005, as compared with how he had seemed prior to going to live at the Base. None of these witness statements had been served under cover of a notice under Civil Evidence Act 1995. Mr. Ashfield submitted that each of the witness statements was admissible under Civil Evidence Act 1995 s.2(4) notwithstanding the failure to give notice. I think that that is technically correct, but in assessing the weight to be attributed to each of the witness statements, I consider that it is appropriate to have in mind that, had a notice been served, the defendants would have had the opportunity, of which they have been deprived, of requiring the maker of a statement to attend for cross-examination. In other words, the course taken on behalf of Dr. Azaz has involved, it seems deliberately, for permission could have been sought to serve notices late, depriving the defendants of the opportunity of cross-examining the relevant witnesses. In fact, as it seemed to me, the contents of the witness statements were of little value in any event, given that the period principally relevant to the delay in the commencement of the Injury Claim was between June 2004 and April 2008.

In the end, therefore, there was really no explanation of any sort as to why this action was not commenced, as it might have been, at any time after early 2007, and the only explanation for delay between June 2005, when Dr. Azaz recovered from the third episode of mental illness, and early 2007 was the views of Mr. Baldwin, with there being no evidence of what advice was given by Kirby, instructed from May 2004 at the latest. On the material put before me, I am not satisfied that there was any satisfactory reason why the claim form in this action was not issued prior to the expiry of the limitation period relevant to the Injury Claim, and there was no explanation at all for the delay between the expiry of that limitation period and the issue of the claim form.

The provisions of s.33(3)(b) of the 1980 Act require attention to be given to the impact of the passage of time since the expiry of the limitation period on the quality of the evidence available to each of the claimant and the defendants.

Mr. Ashfield urged upon me the fact that the prejudice to the defendants as a result of the delay in commencing this action was mitigated by the fact that much of the ground needed to be covered in this action had been covered in 1995 and 1996 on behalf of the defendants in the course of preparing for the trial of the Davies Action. Certainly witness statements were prepared for Mrs. Denton, her husband, and Colonel Terry Palmer, one of the adherents of the Centre. In addition, various documents assembled for the purposes of the Davies Action were still available. However, all of the witness statements and the documents were relevant only to the claims of Mrs. Azaz for return of money and possessions. The Injury Claim was not material in the Davies Action. Dr. Azaz did not fall ill until after the conclusion of the Davies Action. Moreover, as Mr. Ashfield made plain in his closing submissions, in this action there would be a vigorous dispute as to the accuracy of the witness statements assembled on behalf of the defendants in the Davies Action, so in reality what one had to contemplate was cross-examination of witnesses on behalf of the defendants getting on for twenty years after the earliest of the events likely to be examined. I have already noted the age of Mrs. Denton. According to the evidence of Mr. Casley, Mrs. Denton suffers from a heart condition, high cholesterol and diabetes. Mr. Ashfield pointed out that there was no medical evidence in support of the condition of Mrs. Denton, but I accept the evidence of Mr. Casley on the point. Colonel Palmer, like Mr. Denton, is 81 years of age. I was invited by Mr. Yell to take judicial notice of the facts that memories fade with the passing of time and that, as people get older, their memories are not as reliable as those of younger people. I accept the first proposition. It is a statement of one’s common experience. I am not sure about the second proposition, and without specific evidence would not be inclined to accept it. Nonetheless, I think that it is obvious that the position of the defendants is prejudiced by the fact that the various witnesses likely to be called on their behalf at any trial would be likely to be cross-examined as to events occurring perhaps as long ago as 1990, with the most recent events likely to be examined being events in 2003. In relation to the Injury Claim the relevant period would seem to be from some point in 1996 until the end of 2003. Mr. Yell submitted, and I accept, that a trial of this action on all issues raised in the Particulars of Claim would be unlikely to take place for a year.

The witness to the signature of Dr. Azaz on the Joining Agreement, Carol Palmer, died on 30 November 2005. It would seem that Carol Palmer, had she lived, would have been able to give evidence about how Dr. Azaz seemed at the date on which he signed the Joining Agreement, and, perhaps, more generally during the period of his residence at the Base.

It can rightly be said that most of the disadvantages suffered by the defendants to which I have referred in the two preceding paragraphs had in substance occurred prior to the expiry of the limitation period in relation to the Injury Claim. Consequently, to the extent that that is so, they do not fall to be considered specifically in the context of s.33(3)(b) of the 1980 Act. However, they are still relevant for the reasons explained by Lord Oliver of Aylmerton in the passage from his speech in Donovan v. Gwentoys Ltd. which I have set out.

While not, perhaps, important as possible witnesses for the defendants, Dr. Tylden died on 3 February 2009; Dr. Azaz’s father died on 27 October 2008; and Dr. Azaz’s mother, who was born on 25 December 1931, so she is now 77 years of age, she suffered a heart attack on 3 March 2009.

It is possible that relevant documents have been lost by the defendants as a result of two incidents of flooding at the Base, the first in November 2000 and the second in December 2008. The documents lost appear to include the papers of Dr. Azaz relating to his divorce from Mrs. Azaz. Mr. Yell submitted that the allegations in those divorce proceedings might have shed some light on both the circumstances in which Dr. Azaz and his wife came to reside at the Base and the circumstances in which they came to transfer money and goods to the defendants. Mr. Yell also submitted that those papers might shed light on the cause of Dr. Azaz’s first episode of mental illness, which Mr. Yell suggested could have been referable in fact to the breakdown of his marriage.

Mr. Yell contended that it was not known whether it would now be possible to trace the professional advisers, such as Mr. West and Mr. James, who advised Dr. and Mrs. Azaz in relation to the transfer of assets to the defendants. That consideration is immaterial to the Injury Claim.

The conduct of the defendants after the cause of action in the Injury Claim, or the other causes of action vulnerable to the provisions of s.11 of the 1980 Act, accrued is specifically mentioned in s.33(3)(c), but on the facts of the present case does not really require particular consideration. Between signing the Leaving Agreement and the receipt of the Letters before Action Dr. Azaz did not indicate that he was thinking of pursuing any claim against the defendants.

It was common ground that Dr. Azaz was under a disability, for the purposes of s.33(3)(d) of the 1980 Act, between November 2004 and June 2005. That period of disability plainly falls to be taken into account in determining how the discretion conferred by s.33 of the 1980 Act should be exercised.

The last factor listed in s.33(3) of the 1980 Act as requiring particular consideration is (f). I have already mentioned the Tylden Report and the advice of Mr. Baldwin, and have noted that there was no evidence as to any legal advice given by Kirby to Dr. Azaz at any stage.

In the circumstances I am not satisfied that it is appropriate for me to exercise my discretion under s.33(1) of the 1980 Act in favour of Dr. Azaz.

It is, perhaps, appropriate for me to record my view that, even if I had been persuaded to exercise my discretion in favour of Dr. Azaz in relation to the Injury Claim, it would not have followed that I would have exercised my discretion in his favour in relation to the other causes of action vulnerable to the provisions of s.11 of the 1980 Act. S.33(1) confers a discretion on the court not only to direct that the provisions of s.11 should not apply “to the action” but also that it should not apply to “any specified cause of action to which the action relates”. Thus, it is necessary to consider separately each cause of action to which the provisions of s.11 provide a defence. S.33 has the potential to operate so as to extend a limitation period of 6 years for breach of contract, or for negligence not causing personal injury, if causes of action for breach of contract or negligence are included in an action which also includes a claim for damages for personal injury alleged to have arisen considerably later in point of time than the breach of contract or negligence. It would, as it seems to me, be wrong in principle for the court to use the discretion conferred by s.33 of the 1980 Act to extend limitation periods which are fixed by the Act and not capable of being extended by discretion in the ordinary case, or those which have their own code for extension, for example s.14A of the 1980 Act. As I have explained, any cause of action for breach of contract or negligence in respect of the Cash Claim, the Possessions Claim Mark I or the Career Claim accrued a long time before the commencement of this action.

The answer to Preliminary Issue b is thus, yes, yes and no.

The answer to Preliminary Issue c is that the Cash Claim and the Possessions Claim Mark I, insofar as founded on alleged breach of contract or negligence, and the Career Claim are all statute-barred.

It remains to consider Preliminary Issue e. Laches is said to be a defence to the Cash Claim and the Possessions Claim Mark I, insofar as those claims are based on invoking the equitable jurisdiction of the court to set aside transactions into which a party entered as a result of undue influence.

I am not able at this stage to reach any conclusion as to whether any of the transactions sought to be set aside as part of the Cash Claim or the Possessions Claim Mark I was in fact a transaction into which Dr. Azaz entered as a result of undue influence. Whilst I have already noticed evidential difficulties in these cases as a result of previous accounts given by Dr. Azaz, for example in the Injunction Statement, I proceed, in considering the issue of laches, on the basis that Dr. Azaz was induced to enter into the relevant transactions by undue influence.

It is convenient, first, to consider what is meant by the expression “laches”.

In Goldsworthy v. Brickell [1987] 1 Ch 378 at page 410 Nourse LJ, giving the leading judgment, said:-

“The equitable defences which would usually be regarded as being available to defeat such a right are laches, acquiescence and confirmation: see for example the judgment of Lindley LJ in Allcard v. Skinner 36 ChD 145, 186-189. By any of these means the transaction could have been affirmed, in the first two cases impliedly and in the third case expressly. These expressions are not uniformly used. Sometimes laches is taken to mean undue delay on the part of the plaintiff in prosecuting his claim and no more. Sometimes acquiescence is used to mean laches in that sense. And sometimes laches is used to mean acquiescence in its proper sense, which involves a standing by so as to induce the other party to believe that the wrong is assented to….”

Lord Selborne LC, giving the advice of the Privy Council in Lindsay Petroleum Co. v. Hurd (1874) LR5PC 221, explained at pages 239 – 240:-

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy….”

Next, in Allcard v. Skinner (1887) 36 ChD 145 Lindley LJ considered the issue, at pages 186 – 187:-

“I proceed to consider the second point which arises in this case, namely, whether it is too late for the Plaintiff to invoke the assistance of the Court. More than six years had elapsed between the time when the Plaintiff left the sisterhood and the commencement of the present action. The action is not one of those to which the Statute of Limitations in terms applies; nor is that statute pleaded. But this action very closely resembles an action for money had and received where laches and acquiescence are relied upon as a defence: and the question is whether that defence ought to prevail. In my opinion it ought. Taking the statute as a guide, and proceeding on the principles laid down by Lord Camden in Smith v. Clay and by Lord Redesdale in Hovenden v. Lord Annesley the lapse of six years becomes a very material element for consideration. It is not, however, necessary to decide whether this delay alone would be a sufficient defence to the action. The case by no means rests on mere lapse of time. There is far more than inactivity and delay on the part of the Plaintiff. There is conduct amounting to confirmation of her gift. Gifts liable to be set aside by the Court on the ground of undue influence have always been treated as voidable and not void.

If authority for this proposition be wanted, such authority will be found in Wright v. Vanderplank and Mitchell v. Homfray. Moreover, such gifts are voidable on equitable grounds only. A gift intended when made to be absolute and irrevocable, but liable to be set aside by a Court of Justice, not on the ground of a change of mind on the part of the donor, but on the grounds of public policy based upon the fact that the donor was not sufficiently free relatively to the donee, such a gift is very different from a loan which the borrower knows he is under an obligation to repay, and is also different from a gift expressly made revocable and never intended to be absolute and unconditional. A gift made in terms absolute and unconditional naturally leads the donee to regard it as his own; and the longer he is left under this impression the more difficult it is justly to deprive him of what he has naturally so regarded. So long as the relation between the donor and the donee which invalidates the gift lasts, so long is it necessary to hold that lapse of time affords no sufficient ground for refusing relief to the donor. But this necessity ceases when the relation itself comes to an end; and if the donor desires to have his gift declared invalid and set aside, he ought, in my opinion, to seek relief within a reasonable time after the removal of the influence under which the gift was made. If he does not the inference is strong, and if the lapse of time is long the inference becomes inevitable and conclusive, that the donor is content not to call the gift in question, or, in other words, that he elects not to avoid it, or, what is the same thing in effect, that he ratifies and confirms it. This view is not only conformable to the well-settled rules relating to other voidable transactions (see the judgment in Clough v. London and North Western Railway Company), but is also warranted by Wright v. Vanderplank and Mitchell v. Homfray.”

Finally, in Brooker v. Fisher [2008] EWCA Civ 287, at paragraph 55 Mummery LJ said:-

“Laches looks to undue delay, to any change of position by the defendants resulting from the delay and to the unreasonableness and injustice of stopping the defendants from carrying on doing what they have been doing for very many years. The concept of unconscionability, which, as I shall explain, underpins the doctrine of proprietary estoppel, also appears in formulations of the defences of laches and acquiescence. The change of position aspect of acquiescence and laches is less stringent than the requirement of detrimental reliance in cases of proprietary estoppel. Undue delay by the claimant and the defendant’s intervening activities over a long period may suffice to make it unjust to disturb the situation, especially if it is impossible to return the defendants to their original position without some injustice to them.”

Whilst it seems from the judgment of Lindley LJ in Allcard v. Skinner that in some circumstances it may be material, in a case of laches, to consider what the limitation period would have been, if the claim to which laches is raised as a defence had been formulated as a claim in respect of which the 1980 Act provided a period of limitation, the concept of limitation cannot really be applied in a case in which the relief sought is to avoid a transaction which, unless and until avoided, stands as effective. In a sense there is no cause of action in such a case until the court has granted the relief, because until then the transaction stands. The consideration, in the case of laches, is, therefore, it seems to me, a broad one. What has to be considered is whether, having regard to the acts of the parties in the period between the transaction sought to be avoided and the date upon which the claim for relief was made by commencement of proceedings, and the delay between those two events, it would be unjust to grant a remedy. The significance of the delay is whether it has been such as to induce the other party, in a case of alleged undue influence, to suppose that a challengeable transaction will not in fact be challenged.

Mr. Yell submitted in his written opening skeleton argument:-

“41.

Proceedings to set aside a transaction on the grounds of undue influence would not normally be barred by lapse of time whilst the influence persists, however long after the transaction. But after the influence has ceased the donor must commence proceedings within a reasonable time …

42.

… It is submitted that in determining whether it is conscionable for C’s undue influence claims to proceed, the Court will take into account many of the matters referred to above (albeit under its equitable jurisdiction rather than under ss. 11 and 37 [sic] of the 1980 Act).”

Mr. Ashfield in his written closing submissions put his argument in this way:-

“4.

The preliminary issue in relation to this claim is very simple: has the Defendant established laches (so that it would be unjust or inequitable for this claim to proceed)? The burden of proof is upon the Defendant.

5.

This equitable defence is well known. In this case the Court has to decide when laches begins. It is plain that laches cannot begin until you are free of the undue influence. That is common ground [It was not, in fact, common ground].

6.

It is not clear precisely what period of delay the Defendants rely upon for the laches defence. It cannot start before December 2003 and, in reality, cannot start until much later when the Claimant recovers his health and becomes free from this undue influence.

6.1

On the peculiar facts of this case (and bearing in mind the period of “disability”) any period of delay could not begin before June 2005. Letters before action were May 2007. Proceedings were issued on 22^nd April 2008.

6.2

The real period that falls to be considered starts on about 28^th November 2005 (when the Claimant starts honorary work) or March 2006 (when his counsellor, Mr. Baldwin, was able to reduce the frequency of consultations).

7.

What is the correct approach to laches delay. An important question is what prejudice is suffered by the Defendants.

8.

In this case there is no prejudice that makes it unjust or inequitable for the claim to proceed.”

Mr. Ashfield submitted that it was simply immaterial what happened in an undue influence case between the date of the transaction, or the dates of the transactions, sought to be set aside, and the date upon which it appeared that the undue influence ceased to be exercised. He seemed to suggest that the claimant in such a case had six years from the date at which the undue influence ceased to be exercised to commence proceedings, for he devoted some time to analysing the facts in Allcard v. Skinner in which, as I have noted, Lindley LJ did make some reference to the possible significance of a period of six years.

I reject the submission of Mr. Ashfield that it was immaterial to consider in the present case what transpired between the dates of the transactions which Dr. Azaz sought to impeach and the date at which he ceased to be subject to undue influence, assuming that he ever was subject to such influence. On the authorities to which I have referred, in particular Lindsay Petroleum Co. v. Hurd, the acts of the parties after the date of the relevant transaction, or the dates of the relevant transactions, are in fact highly material.

I incline to the view that one is concerned, in relation with the issue of laches, with the specific issue whether it is fair, having regard to the acts of the parties towards each other between the date of the transaction sought to be impeached and the commencement of the action, and the passage of time, insofar as such may have led the defendant in the circumstances to suppose that the claimant would not challenge the transaction, for the claimant to be permitted to claim relief. Thus the focus in relation to laches, in my judgment, may be somewhat narrower than the focus under s.33, although many of the factors relevant to the latter may also be relevant to the former.

In the present case it is material to notice, in the context of laches, not only the passage of time since the dates of the various transactions sought to be impeached – as much as nearly sixteen years prior to the date of the issue of the claim form, and at the very least, it seems, eleven years prior to the date of the issue of the claim form (the sum of £15,000 given by Dr. Azaz from the proceeds of his divorce settlement with his wife) – but also that on two occasions during the period Dr. Azaz had disclaimed any intention to recover any asset given to the defendants. Those disclaimers were in the Joining Agreement and in the Leaving Agreement. Whilst Dr. Azaz asserted that he was acting under undue influence in executing the Joining Agreement, he executed the Leaving Agreement after ceasing to reside at the Base. He was in fact suffering from mental illness at the date of signature of the Leaving Agreement, although there was no evidence to suggest that the defendants were aware of that. However, Dr. Azaz was not, at the date of signature of the Leaving Agreement, unfit to manage his own affairs. His own evidence was that, at that time, he had the assistance of members of his family in dealing with correspondence with the defendants.

Having executed the Joining Agreement and the Leaving Agreement Dr. Azaz had positively created the impression in the defendants that he would not seek to set aside the transactions which form the basis of the Cash Claim and the Possessions Claim Mark I. In those circumstances, as it seems to me, fairness to the defendants required that he repudiate those documents immediately he decided to seek to impeach the transactions which form the basis of the Cash Claim and the Possessions Claim Mark I. As long as those documents went unrepudiated they encouraged the defendants to suppose that there would be no claim. The longer that situation continued, the more unfair it became to permit Dr. Azaz to assert that he was not bound by what he had signed.

Notwithstanding his evidence that he had assistance from his family in conducting correspondence with the defendants in the early part of 2004, if, within a matter of weeks of recovering his mental health in June or July 2004, Dr. Azaz had communicated to the defendants that he repudiated the Joining Agreement and the Leaving Agreement, or that he was intending to pursue the Cash Claim and the Possessions Claim Mark I, it would not have seemed to me that justice required that the laches defence succeed. However, not only did Dr. Azaz not do that, but no intimation of any claim of any kind was made until the despatch of the Letters before Action on 2 May 2007. That is over three years later. Even allowing for the third episode of mental illness, since June 2005 Dr. Azaz has been free of mental illness and able to conduct his own affairs. He has had solicitors since, at the latest, May 2004. He has been working in paid employment as a doctor since 25 January 2006. The only proper conclusion, as it seems to me, is that, in the circumstances, the period of delay is such as to make it unfair to the defendants to permit Dr. Azaz to pursue the Cash Claim and the Possessions Claim Mark I.

The answer to Preliminary Issue e is that all of Dr. Azaz’s claim to equitable relief is barred by laches.

It was common ground that the Possessions Claim Mark II is not susceptible to a defence of limitation or laches. That claim must thus go forward. The case relied on in support of the Possession Claim Mark II is inconsistent with the passages from the Injunction Statement which I have quoted, with the Joining Agreement, with the Leaving Agreement, and with the witness statement made by Dr. Azaz for the purposes of this action dated 12 October 2008, where he said, at paragraph 5:-

“I agree that my claim is in separate parts, as Mr. Jenkins states in paragraph 4. He then goes on to rely upon the fact that when these very substantial sums of money and all my possession [sic] were given to the Defendants they were gifts. My then wife also made similar gifts of all of her assets and property. In short, at about the time we both joined the Centre we gave the Defendants everything we had. The precise dates of each individual gift can be ascertained when the documents are examined. I have given the dates that I believe are correct within my Replies.”

In his oral evidence in this trial Dr. Azaz verified, without correction or alteration, his witness statement dated 12 October 2008.

It seems that Dr. Azaz faces considerable difficulties in establishing the Possessions Claim Mark II in the light of the terms of the Injunction Statement, the terms of the Joining Agreement, the terms of the Leaving Agreement, and the terms of paragraph 5 of his witness statement dated 12 October 2008.

Mr. Yell sought to persuade me during this trial to broaden the scope of the trial to include the merits of the Possessions Claim Mark II. Mr. Ashfield resisted that attempt on the grounds that there was, or might be, evidence relevant to the merits of the Possessions Claim Mark II which was not before the court, and could not conveniently be put before the court during this hearing. In the circumstances, I was not persuaded to broaden the scope of the trial. However, the value of the Possessions Claim Mark II, as pleaded, is £35,645. Mr. Yell submitted, with some plausibility, that that valuation may be excessive. Certainly the items claimed included a coffee table made by Dr. Azaz’s father, to which a valuation of £10,000 was attributed, and a black and white photograph of Dr. Azaz’s father, to which a valuation of £250 was attributed. However that may be, the aggregate values of the items claimed, even on Dr. Azaz’s own valuations, fall well within the jurisdiction of the county court, and, subject to hearing the submissions of Counsel, I have it in mind to order the transfer of the balance of this action to the relevant county court.

In the circumstances, I think that it is more convenient not formally to answer each of the Preliminary Issues, but to make an order which gives effect to my conclusions as to those issues, namely that all causes of action, save that of Dr. Azaz for delivery up of the possessions listed in the Second Schedule to the Particulars of Claim on the ground that each of such items was provided to the defendants on long-term loan, and return was demanded on 2 May 2007, be dismissed.