Neutral Citation Number: [2004] EWCA Civ 1747
Case No: A3/2004/1205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT (BIRKENHEAD)
HHJ TRIGGER

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21 December 2004
Before :

LORD JUSTICE CHADWICK
LORD JUSTICE LATHAM
and
SIR SWINTON THOMAS

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Between :

	T	Appellant	
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	BOYS & GIRLS WELFARE SERVICE	Respondent	

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Mr Andrew Pickering (instructed by Hillyer McKewon of Chester for the Appellant
 Ms KM Thirwall QC & Mr Adrian Wallace (instructed by Halliwells) for the Respondent

Hearing dates : 24th November 2004
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Judgment
Lord Justice Latham: 
1.	The appellant is 41 years of age.  In 1973 when he was 10, he was taken into care and remained in care until he was 16.  Between January 1975 and September 1976 he was placed in an Assisted Community Home, as it was then called, known as Tanllwyfan for the management of which the respondents were responsible.  Among the staff of the home at that time was Kenneth Scott.  On the 20th June 2002 the proceedings in question were issued against the respondents by the appellant claiming damages for severe emotional and psychological damage resulting from sexual abuse committed by Mr Scott.  The claim is based on the respondent’s alleged negligence in failing to protect the claimant from harm and in particular failing to manage the home or supervise the staff with reasonable care, so as to prevent abuse.
2.	In 1986, Mr Scott was sentenced to eight years imprisonment for offences of buggery and gross indecency committed between 1982 and 1985 when he was employed as an officer in charge at a children’s home in Leicestershire.  In 1993 the appellant was first asked about sexual abuse by the North Wales Police and provided a statement in which he described some of the sexual abuse to which he alleged that he had been subjected by Mr Scott at the home.  As a result of giving that statement, he was called as a witness at the inquiry into abuse in children’s homes in North Wales under the chairmanship of Sir Ronald Waterhouse.  He gave his evidence in March 1997.  In his report, Sir Ronald Waterhouse considered that he was a credible witness.
3.	In May 1997 the appellant instructed solicitors to make a claim for compensation to the Criminal Injuries Compensation Authority and the appropriate form was completed and signed by the appellant.  For some reason it was not submitted to the Criminal Injuries Compensation Authority until the end of November 2000.  No intimation of any claim against the respondents was made to them until service of the claim form and particulars of claim on the 18th June 2002.  The order with which we are concerned was made by HHJ Trigger on the 21st May 2004 when he dismissed the claim after a preliminary hearing to determine whether or not the limitation period under Section 11 of the Limitation Act had expired, and if so, whether it would nonetheless be equitable to allow the action to proceed pursuant to the provisions of Section 33 of the Act.  The judge held that the primary limitation period would have expired in May 1984, that is three years after he reached his majority, but that his date of knowledge for the purposes of Section 11(4)(b), applying the provisions of Section 14 of the Act, was June 1997.  He declined however to give a direction under Section 33 of the Act that those provisions should not apply to the action.  Neither the appellant nor the respondent challenge the judge’s conclusions under Sections 11 and 14 of the Act.  The sole issue in this appeal is whether the judge’s conclusion under Section 33 was one with which this court can interfere.
4.	I put it that way because the issue with which we are concerned was essentially a matter of discretion for the judge.  The provisions of Section 33 make that clear.  The relevant provisions are:
“(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 sub-section 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 the 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….
(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 the 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.

…”
5.	In making his submissions to us on behalf of the appellant, Mr Pickering accepted that he had a difficult task in persuading us that the judge’s exercise of discretion was flawed.  But, he submits, it was.  He submits that the judge’s fundamental mistake was to consider the whole of the delay in bringing the claim when determining prejudice as opposed to concentrating on the two years of delay which were relevant, namely from June 2000 to June 2002.  He refers us to the well known passage in the speech of Lord Diplock in Thompson –v- Brown [1981] 1WLR 744 at page 751 where Lord Diplock points out that the “delay” for sub-section 33(3)(a) is the same as the “delay” for sub-section 33(3)(b), namely the period after the expiry of the primary period of limitation.  
6.	His remaining submissions essentially flow from this.  He submits that if the judge had properly applied his mind to a two year delay the delay was relatively short, and it could not have affected to any significant extent the cogency of the evidence.  There was no material upon which he could have come to the conclusion that either the respondents or the Court would be in any significantly worse position to deal with the issues in a trial than they would have been had the claim had been commenced prior to June 2000.  He accepts that there can be no criticism of the defendant’s behaviour at any stage in relation to the claim.  Equally, he submits, no blame can be attached personally to the appellant.  Such delay as could be identified appears to be entirely due to the failure of his solicitors.  He referred us to the case of Das –v- Ganju [1999] Lloyds Law Reports page 198 in which this court held that the failures of the plaintiffs lawyers should not be visited on her for the purposes of assessing the impact of Section 33(3)(e) on the exercise of the Court’s discretion.  In particular the court held that in that case there would be prejudice to her in commencing a speculative action against her solicitors which the judge was entitled to take into account as he did in exercising his discretion in her favour in that case.
7.	In evaluating these submissions, it is important to emphasise, it seems to me, that the question which the court has to answer is contained in Section 33(1).  The matters set out in Section 33(3) are only factors which must be taken into consideration by the court when determining how to answer that question.  Further Section 33(3) requires the court to have “regard to all the circumstances of the case”; see in particular Donovan –v- Gwentoys Ltd [1990] 1WLR 472.  This court has recently considered the application of Section 33 in this type of case where the complaints are about matters which occurred many years ago in CD –v- Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85.  This was an appeal of fourteen adults all whom had suffered sexual and/or physical and/or emotional abuse between 1973 and 1991 while children in the care of the defendant’s Children’s Home in Wales.  The judge had the benefit of this judgment; and in my view correctly concluded that he was helped by a passage in the judgment at paragraph 80 where the court said as follows:
“…. We consider:
(i)		that, as a general rule of thumb, the longer the delay after the occurrence of the matters giving rise to the cause of action the more likely it is that the balance of prejudice will swing against disapplication;
(ii)	that in cases of this nature where issues of liability, causation and quantum can be so difficult with or without delay the permissible delay in each case is likely to be highly sensitive to the prejudice it causes to the defence not withstanding good reasons the claimant for its length; and 
(iii)	that, if the date of knowledge test in Section 14 is properly applied so as to provide a claimant with an extension of the period by reference to it, the weight to be given to his reasons for delay thereafter should in normal circumstances be limited.  As Lord Diplock observed in Thompson –v- Brown in the passage which we have sent out, the law has already catered for the delay in starting proceedings that is due to excusable ignorance of material acts as distinct from his knowledge that they may give him a good cause of action in law…..”
8.	The court in that case said this about the nature of the discretion and the task of this court:
“68.	The discretion of a judge under section 33 is only fettered to the extent that it provides a non-exhaustive list of circumstances to which he should have regard.  However the matter is not determined simply by assessing comparative scales of hardship; Long –v- Tolchard & Sons Ltd [2001] PIQR P18, CA.  The overall question is one of equity, namely whether it would be “equitable” to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard all the circumstance of the case, including those specifically mentioned in Section 33(3) ….
69,	The width of the discretion is such that an appellate court should not intervene save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible.”
9.	It identified the judge’s task in paragraph 71 as follows:
“Stripping away legal niceties, the question for the judge under section 33 was, whether, given the delays, he could fairly try claims that the first defendant had culpably failed to improve the claimant’s physical and/or mental condition and/or culpably caused it to worsen.”
10.	In considering the facts, the judge took into account a substantial body of evidence relating to the material which had been obtained by the appellant’s advisors from June 1997 onwards.  Amongst that were reports from a Dr Spratt who had interviewed the claimant in September 1997 in which he set out the complex history of the appellant’s psychiatric and behavioural problems which identified that a significant difficulty which would face the court would be the extent to which after such a length of time it would be possible to disentangle the various problems which afflicted the appellant so as to identify the extent to which any abuse that he might prove had resulted in damage.  Dr Spratt was handicapped by October 2002 by the fact that he had not kept contemporaneous notes of the interview which he had conducted with the claimant in September 1997, and accordingly his ability to answer questions which had been submitted by the appellant’s solicitor to him were limited.  The judge also referred to a report obtained by the respondents from a Professor Madenn, which underlined the problem which had been identified by Dr Spratt, and in particular pointed out that the absence of any reference to abuse in any of the material prior to 1993 made it extremely difficult to evaluate the claim.
11.	Contrary to the submissions of counsel, the judge it seems to me, when considering how to approach the exercise of his discretion in these circumstances clearly directed himself that for the purposes of Section 33(3) the delay in paragraph (a) was the same as the delay in paragraph (b).  He identified on page 13 of the judgment that the relevant period was the period of two years after June 2000 and then expressly repeated that on page 14 after having cited Section 33(3)(b).  He then went on to evaluate the evidence to which I have already referred together with the fact that, as he said, the abuse was uncorroborated, the respondents would find it difficult to trace any witnesses whose evidence could be relevant and that the records  of the home and its management had been lost or destroyed.  He concluded that the evidence of Dr Spratt would be less cogent by reason of the delay, a conclusion which was clearly open to the judge on the basis of the material to which I have referred.
12.	I accept entirely that a fundamental question to be asked in these cases is whether or not at the end of the day a fair trial is possible, as this court said in the passage which I have already cited from Bryn Alyn.  That question has to be answered in its context.  The context in the present case is that by the time the claim was brought 28 years had passed since the events which gave rise to the claim; and service of the claim was the first notice that these respondents had of those allegations.  The very fact of the claim, which may involve substantial compensation and would undoubtedly in any event involve substantial expenditure of time and money in investigating and seeking to meet, it will cause real prejudice to the respondents.  
13.	It is no answer, in my view, to say that the prejudice has only been marginally increased by the fact that the claim was made two years after the limitation period has expired.  The Act, with its generous provisions for claimants in personal injury actions for an extension of the primary limitation period so that it starts from the date of knowledge, has, as this court has said in Bryn Alyn, provided the limit of permissible prejudice save in special cases.  In other words Parliament has  determined in Sections 11 and 14 where the balance of prejudice should normally be struck.  It follows that Section 33 should only be available for special cases.  And it is for the claimant in any particular case to establish that his claim is one of those special cases.  
14.	As the prejudice to a claimant if the claim cannot proceed is, in effect, a given, he is only likely to succeed if he can establish that there is no additional prejudice to a defendant of any sort by reason of the delay.  That is likely to be difficult where a claim is brought against a defendant of which the defendant is entirely unaware until after expiry of the limitation period, extended if appropriate under Section 11.4(b).  The mere fact of being asked to deal with a stale claim is itself prejudice; and the staler the claim the greater the prejudice.  The policy of the law must be to permit people and organisations to arrange their affairs on the basis that there comes a time when they should not be asked to meet such claims.  There is therefore by the very nature of a stale claim a hurdle which has to be overcome by a claimant.  The judge was fully entitled to conclude that this case did not come within the category of those where an exception can be made under Section 33; he did not misdirect himself; and accordingly I would dismiss this appeal.
Sir Swinton Thomas:
15.	I agree
Lord Justice Chadwick:
16.	I also agree