Mr Sarhad Rafiq v Thurrock Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] EWHC 584 (QB) |
| Docket Number | Case No: QB-2021-002613 |
| Court | Queen's Bench Division |
[2022] EWHC 584 (QB)
THE HONOURABLE Mrs Justice Collins Rice
Case No: QB-2021-002613
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Azeem Suterwalla (instructed by Gold Jennings Ltd) for the Claimant
Mr Ryan Kohli (instructed by LB Barking & Dagenham) for the Defendant
Hearing date: 14 th February 2022
Approved Judgment
Introduction
These two opposing applications turn on a single issue about timing.
Mr Rafiq asks for permission to bring a claim against Thurrock Borough Council. He says the Council unlawfully made him street homeless for a week in the summer of 2017, violating his human rights and causing him physical and mental harm. He seeks money compensation. But he did not bring this claim within the statutory time limit for doing so as of right.
The Council asks for his claim to be struck out, on the ground that it is out of time and the Court should not exercise its discretion to extend time.
Factual background
Mr Rafiq is a Kurdish Iraqi. He arrived in the UK in November 2015, aged 17, and claimed asylum. The Council accepted an obligation under the Children Act 1989 to support and house him. He turned 18 in April 2016. The Council had continuing statutory support and housing duties to a ‘former relevant child’.
Mr Rafiq's asylum claim was refused in August 2016. He appealed unsuccessfully, and became ‘appeal rights exhausted’ in May 2017. The Council wrote to him on 2 nd June 2017 giving 28 days' notice that, since he was no longer entitled to access public funds, it intended to cease supporting and housing him.
It could do that only if it would not be inconsistent with Mr Rafiq's human rights. The Council undertook a human rights assessment on 17 th June 2017. It concluded that:
i) if support were withdrawn, Mr Rafiq would not be subject to ‘treatment amounting to torture or to inhuman or degrading treatment or punishment’ whilst in the UK (Art.3 ECHR);
ii) returning to Iraq would not compromise his right to respect for family life (Art.8 ECHR);
iii) he should apply to the Home Office for support as an unsuccessful asylum seeker, having no other means of support.
It decided he would be given a final weekly allowance, and a travel warrant to go to the Home Office and apply for residual support before returning to Iraq.
He says he went to the Home Office about a month later, when he was still being accommodated by the Council. He says the Home Office told him the necessary referral from the Council had not happened. He says that on 31 st July 2017 he understood he had to leave his accommodation, and was street homeless from that day until 7 th August 2017. The British Red Cross helped him then; they arranged for him to stay with a hosting family and gave him money. They put him in touch with an established firm of solicitors specialising in public law and human rights, Bhatia Best.
On 15 th August, the solicitors sent the Council a pre-action judicial review letter, challenging its human rights review and apparent decision to evict Mr Rafiq. The Council reinstated accommodation and support on 21 st August.
More than two years passed. In late October 2019 Mr Rafiq was referred to his current solicitors, Gold Jennings Ltd, for legal advice on pursuing a complaint about the state of his accommodation. During his first consultation they advised him he could have a claim for damages from the Council for making him street homeless in the summer of 2017. They corresponded with the Council, and filed a money claim at the County Court on 18 th November 2019. It was issued six days later.
Over the course of the following year, time for service of particulars of claim was extended. The Council made the present application for the case to be struck out on grounds of time limitation on 7 th October 2020. It filed its defence on 20 th January 2021, pleading limitation. Mr Rafiq made the present application for an extension of time on 8 th February 2021.
Legal framework
The Human Rights Act 1998 includes the prohibition in ECHR Art.3: ‘ No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Mr Rafiq wishes to claim the Council subjected him to inhuman and degrading treatment. He relies on the decision of the House of Lords in Limbuela v SSHD [2006] 1 AC 396 as authority that being made street homeless, even for only a few days, can amount to such treatment. Their Lordships noted that unsuccessful asylum seekers are barred from working or claiming benefits, but are entitled to protection from destitution, and from the physical discomfort, loss of self-respect, threat to health, and despair of having to sleep rough without knowing how or when that may be brought to an end.
Mr Rafiq also wishes to claim that the Council unjustifiably interfered with his private and home life by making him homeless (ECHR Art.8).
Section 7 of the Human Rights Act provides for claims against public authorities for breach of human rights. Section 7(5) provides:
Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
There is guidance in the caselaw for courts exercising discretion under s.7(5)(b). The Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 said this (paragraph 75):
The court has a wide discretion in determining whether it is equitable to extend time in the particular circumstances of the case. It will often be appropriate to take into account factors of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time for a domestic law action in respect of personal injury or death. These may include the length of and reasons for the delay in issuing the proceedings; the extent to which, having regard to the delay, the evidence in the case is or is likely to be less cogent than it would have been if the proceedings had been issued within the one-year period; and the conduct of the public authority after the right of claim arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information for the purpose of ascertaining facts which are or might be relevant. However … the words of section 7(5)(b) of the HRA mean what they say and the court should not attempt to rewrite them. There can be no question of interpreting section 7(5)(b) as if it contained the language of section 33(3) of the Limitation Act 1980.
So it is not wrong for a court to have regard to the s.33 factors if it considers it proper to do so in the circumstances of a particular case, but they must not be treated as a fetter on discretion. Instead, the court is to examine all the relevant factors in a case and consider whether it is equitable to allow a period of longer than one year. There is no predetermined list of relevant factors, although proportionality will generally be taken into account. The weight to be given to any particular factor is a matter for the court. ( P v Tameside MBC [2017] 1 WLR 2127 at paragraph 67).
P v Tameside (paragraphs 77–79) is also authority that a court must have regard to the policy reasons for Parliament adopting a much tighter limitation period in HRA claims than usual, and that these may be similar to those for the tight 3-month limit in judicial review proceedings.
It is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities, and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event.
The court must look critically at the explanations given for the delay, set against these policy considerations. Delay is always a relevant consideration whether or not there is actual trial prejudice to a defendant. However the ‘burden of persuasion’ on a claimant is not necessarily a heavy one and there is no burden to establish lack of prejudice to the defendant.
The High Court in Alseran & Ors (Iraqi Civilian Litigation) v MoD [2017] EWHC 3289 (QB) took emphasis from the judgments of Lord Dyson and Lady Hale in Rabone that the merits of a claim may be the ‘ most important of all’ the points which may militate in favour of granting an extension, and that it is ‘ important that fundamental human rights are vindicated’. It also noted that ‘evidential prejudice’ to a defendant, where delay means that witnesses cannot be traced or memories have faded, may militate against the fairness of granting an extension.
Most recently, the High Court in Newell v MoJ [2021] EWHC 810 (QB) directed itself not to put any qualification to, or gloss on, ‘ equitable having regard to all the circumstances’. It must mean being fair to each side.
Analysis
I remind myself therefore that Parliament has determined a one-year primary limitation period for HRA damages claims to be brought as of right. There are reasons for that: general public policy reasons to do with the increasing obstacles the passage of time presents to holding a fair trial; and particular public policy reasons for limiting the exposure of public...
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CJ v The Chief Constable of Wiltshire Police
...s.6 HRA, and the principles to be applied, I am grateful to Collins Rice J for her exposition in Rafiq v Thurrock Borough Council [2022] EWHC 584 (QB) which I adopt: “14. There is guidance in the caselaw for courts exercising discretion under s.7(5)(b). The Supreme Court in Rabone v Pennin......