Halford v Brookes and Another
|England & Wales
|LORD JUSTICE RUSSELL,LORD JUSTICE NOURSE,THE MASTER OF THE ROLLS
|26 November 1990
|Judgment citation (vLex)
| EWCA Civ J1126-2
|Court of Appeal (Civil Division)
|26 November 1990
 EWCA Civ J1126-2
The Master of the Rolls
Lord Justice Nourse
Lord Justice Russell
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE SCHIEMANN)
Royal Courts of Justice
MR. ANTHONY SCRIVENER Q.C. and MR. PATRICK O'CONNOR (instructed by Mesdames Deighton Guedalla) appeared for the Appellant (Plaintiff).
MR. COLIN RIMER Q.C. and MR. EDWARD COUSINS (instructed by Messrs. Hunt & Coombs, Peterborough) appeared for the Respondent (Second Defendant).
MR. BERNARD LIVESEY Q.C. and MR. R. MAYO (instructed by Messrs. Buckle Mellows, Peterborough) appeared for the Respondent (First Defendant).
This is an appeal from a judgment of Schiemann J. who on 22nd November 1989 dismissed the plaintiff's action after deciding, upon a preliminary issue, that her claim was statute barred under section 11 of the Limitation Act 1980, and, further, that the limitation period should not be disapplied under section 33 of the Act.
The facts are unusual, and, from the plaintiff's point of view, sad and tragic. As long ago as 3rd April 1978 the plaintiff's daughter, then sixteen years of age, was strangled and stabbed to death in open countryside near to the Trent and Mersey Canal in Derbyshire. At the time of her death the girl was in the company of the second defendant, then a 15 year old schoolboy. Her body was discovered on 9th April 1978, and on that date the second defendant was interviewed by the police, and confessed that he had attacked the girl with a knife when they had been out walking together and she had provoked him.
The first defendant was and is the stepfather of the second defendant. He was present when the second defendant made his statement to the police. For his part the first defendant asserted to the police that he was not present at the scene of the killing although he had seen the second defendant in the vicinity of the murder at the material time. The second defendant was charged with murder.
About six months later, on 8th October 1978, the second defendant made a much longer statement to the police in which he implicated the first defendant, his stepfather, in the killing. There was no suggestion that the girl had provoked him. He alleged that the first defendant had been fully involved, that the first defendant had planned the killing, that the first defendant had strangled the girl, and thereafter repeatedly stabbed her. The second defendant contended that he was not responsible for any of the stab wounds which had been causative of death, that he had been coerced into making his original confession and that the most he had done at the scene of the murder was to draw his knife and inflict some superficial wounds upon the girl, his activity being conditioned by his fear of the first defendant.
In early November 1978 the second defendant stood his trial for murder. The first defendant gave evidence. He denied any complicity in the killing. He was cross-examined to the effect that he and he alone was responsible for the murder. There was pathological evidence which, if anything, supported the second defendant's version of events. He was very small in stature and the pathologist opined that it was unlikely that he could have overcome the girl without assistance.
Pausing here there can, in my judgment, be no doubt but that at the date of the jury's verdict, 9th November 1978, everyone concerned with the case, including the plaintiff, must have understood that one or other or both of the defendants had been responsible for the attack on the girl that had caused her death. No other person could conceivably have been involved.
The next development was in the summer of 1979. A bundle of clothing and a knife were discovered buried in the garden of the house where the first defendant had resided at the time of the murder. These items were handed over to the police, but unhappily they were lost by the authorities.
Meanwhile, between the date of the trial and the discovery of the garments and knife, the plaintiff, together with other members of the deceased's family, had consulted solicitors. In an affidavit the plaintiff deposed:
"While I had very strong suspicions as to the involvement of each defendant, I should say that this became firm belief when I attended the second defendant's trial. His evidence on oath in his own defence, and the performance of the first defendant as a prosecution witness against his own stepson formed my then firm belief."
The advice received by the plaintiff at this stage from her solicitors was to the effect that the responsibility for instituting a further prosecution, which could only be against the first defendant, rested with the Director of Public Prosecutions. The question of civil proceedings was not at this stage canvassed. The plaintiff did not seek advice about this possibility nor was any advice tendered to her. A very extensive campaign was mounted in an effort to bring pressure to bear upon the Director of Public Prosecutions but this was to no avail.
During 1980 and 1981 additional evidence came to light. The second defendant made a statement to the plaintiff's solicitors reiterating his allegations against the first defendant. The wife of the first defendant and mother of the second defendant made a signed statement to the plaintiff's solicitors detailing allegations against the first defendant to the effect that he had perverted sexual habits involving the use of knives and the mutilation of pictures of naked women and, perhaps more importantly, to the effect that the first defendant had confessed to her in March 1980 that he had taken part in the killing and had successfully deceived the court at the trial of the second defendant.
Two men also made statements to the Derbyshire police alleging that the first defendant had confessed to them that he had committed the murder.
In December 1984 yet another witness, a former girlfriend of the first defendant, made a statement to the police that the first defendant had confessed to her that he had been responsible for the murder.
Throughout this lengthy period after the acquittal of the second defendant through to July 1985 the plaintiff and her family continued the campaign in the hope that the authorities could be persuaded to prosecute the first defendant. On 21st July 1985 the plaintiff, for the first time, consulted the solicitors who now represent her. The papers were submitted to counsel. At the end of October 1985 counsel advised that a civil action claiming damages on behalf of the estate of the deceased was feasible. Legal aid was applied for. It was granted, the certificate being limited to the preparation of papers for a full advice from counsel. Thereupon witnesses earlier referred to were interviewed. Eventually, in August 1986 counsel advised on liability and quantum and in March 1987 full legal aid was granted for the commencement of proceedings. On 1st April 1987 the plaintiff issued a writ, followed by a statement of claim in which the plaintiff, as administratrix of the estate of her daughter, sought damages against both defendants pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The claim sought aggravated damages, damages in respect of battery committed during the deceased's lifetime, damages in respect of her loss of expectation of life, and damages in respect of her loss of earnings during the so-called "lost years". Both defendants served defences, each denying liability and each alleging that the cause of action arose more than three years before the date of the writ and consequently was statute barred. They then applied to have the action struck out on the grounds that it was vexatious and an abuse of process, but on 18th November 1988 that application was dismissed by Potter J. who directed that there be tried, as a preliminary issue:
(a) whether this action was brought after the expiration of the relevant limitation period under the Limitation Act 1980 and
(b) if yes, whether the court should disapply the limitation period in its discretion under section 33 of the Act.
The starting point upon the issue of limitation is section 11 of the 1980 Act the effect of which is that where a person is injured as a result of any breach of duty and that person dies within three years of the injury:
"the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from:—
(a) the date of death or
(b) the date of the personal representative's knowledge; whichever is the later."
Section 14 so far as material to this appeal reads:
"(1) In Section 11…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…breach of duty; and
(c) the identity of the defendant…and knowledge that any act or omissions did or did not, as a matter of law, involve…breach of duty is irrelevant.
(3) for the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire:—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
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