A v Hoare
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE JACK,Mr. Justice Jack,Mr Justice Coulson |
| Judgment Date | 08 July 2008 |
| Neutral Citation | [2005] EWHC 2161 (QB),[2008] EWHC 1573 (QB) |
| Docket Number | Case No: HQ04X04155 |
| Court | Queen's Bench Division |
| Date | 08 July 2008 |
[2005] EWHC 2161 (QB)
Mr. Justice Jack
Case No: HQ04X04155
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr. Alan Newman Q.C and Mr. Paul Spencer (instructed by DLA Piper Rudnich Gray Carey, Leeds) for the Claimant
Mr. Andrew McLaughlin (instructed by Atkins Public Law Solicitors, Exeter) for the Defendant
Hearing date: 7 October 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The defendant in this action, Iorworth Hoare, has served in all seven periods of custody for serious sexual offences. In 1989 he was convicted of the attempted rape of the claimant on 22 February 1988, and was sentenced to life imprisonment. In 2004, while on day release from that sentence, he purchased a ticket for the national lottery. He won £7 million. He was later that year released from prison on licence. On 22 December of the same year, 2004, the claimant commenced proceedings against him in the High Court. She had previously obtained an order under Rule 39.2(4) providing for her anonymity. The reason why the action was commenced when it was and not before was that until his lottery win there was no prospect of the defendant meeting a judgment obtained against him. That position was changed dramatically by his win. On 14 June 2005 the action was struck out by Master Eyre on the ground that the cause of action had arisen 16 years before the issue of the claim form and so was barred by limitation. On 7n October 2005 I heard the claimant's appeal against that decision. At the conclusion of the hearing I stated that the appeal would be dismissed and that I would give my reasons subsequently, which I now do.
I should record that the hearing initially involved a number of other matters arising from what I would describe as a procedural muddle in connection with the claimant's application for an extension of time in which to serve the claim form. By the good sense of the parties those were not pursued, leaving the one matter to be determined. There was also an application made on behalf of the defendant for a wasted costs order against the claimant's solicitors. This was abandoned.
The substance of the appeal.
It is first necessary to be clear as to the nature of the claim. The claim form stated that the claim was for 'Damages for trespass to the person and/or psychiatric injury'. The claim subsequently made in the particulars of claim was for 'Damages for assault and battery and psychiatric injury'. The claimant does not make a claim for any physical injury. The defendant's actions towards her were deliberate and intentional. They were not the consequence of any absence of care towards her in the ordinary sense of the words. Her claim is not in negligence but is for assault. The cause of action accrued on the day of the assault, 22 February 1988.
The case of the defendant is that section 2 of the Limitation Act 1980 applies to the claim and is a bar to it. Section 2 provides:
"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."
Section 11 has the heading 'Special time limit for actions in respect of personal injuries', and must also be considered. It provides:
"11(1) This section applies to any action for damages, negligence, 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 of 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 of the plaintiff or any other person."
Section 38(1) provides that "'personal injuries' include any disease and any impairment of a person's physical or mental condition". The period of limitation where section 11 applies and the injured person does not die is provided by section 11(4) and is three years from the date on which the cause of action accrued – section 11(4)(a), or the date of knowledge, if later, of the person injured – section 11(4)(b). Section 14 provides for the determination of the date of knowledge. The combination of section 11(4)(b) and section 14 may have the effect of extending the period beyond the primary period of three years from date of accrual of cause of action. Section 33 titled 'Discretionary exclusion of time limit for actions in respect of personal injuries or death' provides a second means of extension. It provides for the court to direct that section 11 (or sections 11A or 12) shall not apply if, in accordance with the section, it appears equitable to allow the action to proceed. (There is an equivalent provision allowing an "equitable" extension in cases of defamation and malicious falsehood provided by section 32A).
For completeness I should also mention section 14A, which was inserted into the 1980 Act by the Latent Damage Act 1986. The section applies to actions for damages for negligence other than those to which section 11 applies. It provides for a six year period from the date of accrual of the cause of action – section 14A(4)(a), or, three years from the claimant (or a person in whom the cause of action was vested before him) having the requisite knowledge – section 14A(4)(b) taken with section 14A(5).
The defendant relies on the decision of the House of Lords in Stubbings v Webb [1993] AC 499 to establish that the claim here is covered by section 2 of the Limitation Act rather than by section 11. The claimant in that case had come of age in 1975. In 1987 she issued proceedings against members of her family alleging sexual and physical abuse during her childhood resulting in psychological disorders and mental illness. It was her case that she had only connected her illness with the abuse after consultation with a psychiatrist within 3 years of the issue of proceedings. The House held that claims for injuries arising from complaints of deliberate assault, including indecent assault, were subject to a 6 year limitation period, imposed by section 2 or by section 28 in cases of disability. In his speech with which the remainder of their Lordships agreed, Lord Griffiths referred to the report of the Tucker Committee in 1949 which, he held, made clear that actions of intentional trespass to the person were intended to be governed by the six year period imposed by the predecessor of section 2. In his speech Lord Griffiths considered the decision of the Court of Appeal in Letang v Cooper [1965] 1 QB 232 in which Diplock LJ had held that the words 'breach of duty' then in the proviso of section 2(1) of the Limitation Act as inserted by the Law Reform (Limitation of Actions, etc.) Act 1954, now in section 11 of the 1980 Act, were wide enough to cover any cause of action giving rise to a claim for damages for personal injuries. Lord Denning MR and Danckwerts LJ had taken the same view in their alternative ground of decision. Lord Griffiths held that 'breach of duty' was not to be construed as including a deliberate assault – page 508B.
Stubbings v Webb was applied by the Court of Appeal in KR and Others v Bryn Alyn Community [2003] Q.B. 1441, in which the Court had to consider the application of sections 2, 11, 14 and 33 of the 1980 Act in the context of sexual abuse occurring in a children's home. A petition by one of the claimants for leave to appeal to the House of Lords was dismissed: [2004] 1 W.L.R. 1394.
It follows from the decision in Stubbing v Webb that the claimant's case is covered by section 2 and is met with the non-extendable six year period.
In order to avoid that result Mr Alan Newman QC called to the claimant's aid Article 6.1 of the European Convention on Human Rights. It provides:
"6.1. In determination of his civil rights ……. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ……."
He submitted that the claimant's right to have her claim tried was breached by the six year limitation provision. He said that during the whole of the six year period her claim was valueless. He accepted that the limitation of actions by reason of time was a legitimate concern of the legislature, but, he submitted, the rigid application of a six year period was here disproportionate. He referred to section 3 of the Human Rights Act 1998, which requires legislation to be read and given effect to in a way which is compatible with the Convention rights, in so far as it is possible to do so. He suggested that there were two ways in which that aim might be achieved. The first was for the court to assume a power equivalent to that given, where it applies, by section 33. This has obvious difficulties, which I think Mr Newman recognised. For there is a stark contrast between section 2 where the Act makes no provision for an extension and section 11 where the Act does make such provision by section 33. The second way was that section 11 should be construed as its predecessor had been construed by the Court of Appeal in Letang v Cooper and not in accordance with the ruling of the House of Lords in Stubbings v Webb. If that construction was adopted, then the claimant would come within section 11 and would have section 33 open to her. It could not then be said that her case had no real prospect of success. (I should make clear that I was not asked to rule whether the claimant could successfully make out a case under the section and would not have been in a position to do so.). Mr Newman submitted that the Court would otherwise have to make a declaration of incompatibility under section 4 of...
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