Case No: HQ04X04155
Neutral Citation Number: [2005] EWHC 2161 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/10/2005

Before :

MR. JUSTICE JACK
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Between :

	A	Claimant	
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	Iorworth Hoare	Defendant	

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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
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Judgment

Mr. Justice Jack : 

Introduction
1.	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.
2.	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.
3.	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.
4.	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.”
5.	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).
6.	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).
7.	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.
8.	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.
9.	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.
10.	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 …….”
11.	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 the Human Rights Act.
12.	Mr. Newman’s submission that the claimant’s right of access to the court has been disproportionately restricted because she is barred from suing now that the defendant has become worth suing many years after she acquired her cause of action, is one which raises what are, I believe, novel and perhaps difficult considerations.  Similar considerations might arise if her case had to be considered under section 33 of the Act.  They were not, however, developed in argument.
13.	On behalf of the defendant Mr Andrew McLaughlin submitted that the answer was to be found in the European Court’s consideration of the Stubbings case – Stubbings v United Kingdom (1996) 23 EHRR 213.  There were four claimants before the European Court. The first was Miss Stubbings. The second, third and fourth were individuals who had commenced proceedings in respect of sexual abuse, but had been obliged to discontinue them following the decision of the House of Lords. The issues were, first, whether there had been a violation of Article 6.1 alone or in conjunction with Article 14 in that the applicants had been denied access to the court to obtain a determination of their civil rights as a result of the applicable limitation period, and, second, whether there had been a violation of Article 8 alone or in conjunction with Article 14 in that the applicants had been denied practical and effective protection of their right to respect for their private life.
14.	The European Court began its majority judgment with a review of the background to the Limitation Act 1980 stating that between 1936 and 1974 no fewer than six official bodies had reported on the law of limitation to Parliament. It set out sections 2, 11, 14 and 28 of that Act. It referred to the Law Commission’s intention, announced in 1995, to undertake a comprehensive review of the law of limitation. It stated that in each case the applicant’s claim for damages for the injuries caused by the abuse had become time-barred before she had even realised that she had a cause of action. The court’s ruling in respect of Article 6 is contained in paragraphs 48 to 55 of its judgment. I will set out only paragraphs 53 to 55:
“53.  The Contracting States properly enjoy a margin of appreciation in deciding how the right of access to court should be circumscribed.  It is clear that the United Kingdom legislature has devoted a substantial amount of time and study to the consideration of those questions.  Since 1936, there have been four statutes to amend and reform the law of limitation and six official bodies have reviewed aspects of it.  The decision of the House of Lords, of which the applicants complain, that a fixed six-year period should apply in cases of intentionally caused personal injury, was not taken arbitrarily, but rather followed from the Tucker Committee upon which the Act had been based.
54.  There has been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims, and it is possible that the rules on limitation of actions applying in Member States of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future.
      However, since the very essence of the applicants’ right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the Court to substitute its own view for that of the State authorities as to what would be the most appropriate policy in this regard.
55.  Accordingly, taking into account in particular the legitimate aims served by the rules of limitation in question and the margin of appreciation afforded to States in regulating the right of access to a court, the Court finds that there has been no violation of Article 6(1) of the Convention taken alone. ”
The majority of the court found no violation of Article 6, or of Article 14 taken in conjunction with Article 6 or of Article 8.
15.	There were two dissenting opinions. Judge Foighel and Judge Macdonald each held that because the right to sue had been barred before the applicants were aware that they had a right, the bar was not proportionate. That is not a factor which applies in the present case. What can be said here is that the right to sue was lost at a time when it had no value, that is, before, by reason of the defendant’s lottery win, it acquired a value.  In my view the two situations are very different.  In the present case the claimant could have pursued her case against the defendant and obtained a judgment.  But she would not have been able to recover any money in consequence.  In Miss Stubbings’ case she did not know she had a cause of action.  It seems to me less difficult to argue that the limitation bar was disproportionate in Miss Stubbings’ case than in the present case.  If so, the decision of the European Court in Stubbings has greater force in the present situation than is the situation there actually before the court.
16.	Mr McLaughlin submitted that in Stubbings the European Court had considered whether the English law of limitation as it applied to cases of sexual abuse where there was a six year limitation period with no possibility of extension and had concluded that it complied with the Convention. That, he said, was the end of the matter.
17.	Mr Newman submitted that the judgment showed that a contracting state had a margin of appreciation in deciding how the right of access to court should be circumscribed. That was stated in paragraph 53 of the judgment. Paragraph 54 shows that the effect is that, provided that the very essence of the right of access is not impaired and the restriction in question pursues a legitimate aim and is proportionate, the European Court will not substitute its view for that ‘of the State authorities as to what would be the most appropriate policy in this regard.’ Mr Newman submitted to this effect as I understood him, namely that an English court could and should step in where the European Court would not, and should consider and form its own view whether the legislative provision infringed the Convention regardless of any ‘margin of appreciation’.
18.	In my view this submission misunderstands the reasoning of the European Court. The ‘margin of appreciation’ means that it is for the legislature of a contracting state to decide how it will restrict a litigant’s right of access to the court provided that in doing so it pursues a legitimate aim and that the restriction which it adopts is proportionate - namely that there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’ – paragraph 48 of the judgment. The European Court will not then substitute its own view. Neither will a national court. In my view, there is in this respect no difference between the function of the European Court and a national court when called upon to determine whether a restriction such as a limitation provision infringes rights under the Convention. I conclude, therefore, that the issue whether Article 6 would be infringed in the present case is determined by the decision of the European court in Stubbings.
19.	 There is, however, one important aspect of the European Court’s judgment which requires specific consideration before I leave the issue. It is one on which I was not addressed by counsel. Paragraph 54 of the judgment states that in view of the growing awareness of child abuse problems and their psychological effect ‘it is possible that the rules on limitation of actions applying in Member States of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future’. The court had earlier referred to the Law Commission’s impending review of the law of limitation. The outcome was the Law Commission’s Report on the Limitation of Actions dated 3 April 2001, and subsequently laid before Parliament and published. In the KR case the Court of Appeal referred in paragraph 100 of its judgment to Seymour v Williams [1995] PIQR P470, saying the Court of Appeal had there invited the Law Commission to consider the anomaly that different periods of limitation apply to a claim against a perpetrator of abuse and to a claim against someone for negligently failing to prevent that abuse with only the latter having a potential extension. The court in KR continued:
“They invited the Law Commission to consider the anomaly. It has done so, recommending that claims for personal injuries, including those of child abuse, whether in trespass to the person or in negligence, should be subject to the same core regime of an extendable three year limitation period with discretion to disapply: see Limitation of Actions (Law Com No 270), paras 1.5, 3.156, 3.162, 3.169 and Appendix A, Draft Bill, clauses 1, 2, 12 and 38. For what it is worth, we warmly commend such a proposal. Early statutory implantation of it would obviate much arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.”
This report, covering the whole law of limitation, is the result of the comprehensive review to which the European Court referred in its judgment in Stubbings. Section 12 of the draft bill annexed to the report would give the court a discretionary power, to be exercised in accordance with the provisions of the section, to extend the proposed primary limitation period of 3 years
20.	The Law Commission’s Report has not yet been implemented. I have no information as to what the Government’s intentions may be. There is a hint in paragraph 54 of the European Court’s judgment in Stubbings that, if Member States - that is primarily their legislatures, do not act, the European Court would at a later date take a second look at the issue with possibly a different outcome. If that moment arrived for the European Court, a national court considering the issue would be in no different position. On this analysis the issue for me is whether that moment has arrived. I do not consider that the passage of four years since the Report is so long a period that what was within the ‘margin of appreciation’ has ceased to be so.
21.	For these reasons I considered that the master had been right to dismiss the claim on the ground that it had no real prospect of success, and I dismissed the appeal.
Section 12 of the Administration of Justice Act 1969
22.	At the close of the hearing Mr Newman invited me to grant a certificate under section 12 of the Administration of Justice Act 1969. This would have the effect of enabling the House of Lords to grant leave under section 13 of the Act for an appeal against my decision to be brought directly to the House. There are a number of requirements before such a certificate can be granted. Among them section 12(3) makes it a condition that a point of law of public importance is involved in the decision. Section 12(3) provides two further conditions, one or other of which must be satisfied. The first of these alternative conditions is that the point ‘relates wholly or mainly to the construction of a statute or of a statutory instrument, and has been fully argued in the proceedings, and fully considered in the judgment of the judge in the proceedings’. I do not consider that this is satisfied because, as I have stated in paragraph 12 of my judgment, I heard really no submissions on the proportionality argument; likewise the matters considered in paragraphs 19 and 20 . The second condition is that the point ‘is one in respect of which the judge is bound by a decision of the Court of Appeal or of the House of Lords, and was fully considered in the judgments given by the Court of Appeal or the House of Lords (as the case may be) in those previous proceedings’. The House of Lords did not consider the application of Article 6 in Stubbings. I should record that Mr McLaughlin did give the consent on behalf of the defendant that section 12(1)(c) requires.
23.	Accordingly any appeal must be to the Court of Appeal, and as a second appeal it is for the Court of Appeal to consider whether permission should be given: Rule 52.13. Pursuant to Rule 52.4(2)(a) I will extend the period of 14 days in which any notice of appeal is to be served and permission applied for so that it runs from the date of delivery of this judgment.