Case results regarding chages in the law of limitation

In our last edition of Specialist we reported on the types of cases we had been seeing since the change in the law on limitation. Only a small number have made it to the courts but the results of these appear to be as predicted.

The most significant is the case of Pierce v Doncaster MBC which recently went to the Court of Appeal. The judgment was handed down on 12 December and is a welcome outcome for local authorities and other care providers.

The circumstances of this case involved a man, now aged 32, who said that he should have been removed from his abusive and neglectful parents at various stages. The claim was not issued until 2004, when he was already aged 28, so that limitation was a significant issue.

The allegations involved three separate occasions throughout his childhood when the claimant said that he should have been protected from his parents, the first being in 1977 when he had been in voluntary foster care for some months but was returned home despite concerns. The judge at first instance agreed with experts that this was not a reasonable thing for the council to have done. The council appealed this decision and also challenged the interpretation of Section 14 of the Limitation Act 1980 and the correct date for the claimant’s “date of knowledge”.

The Court of Appeal agreed that the claimant should not have been returned to his parents’ care. In deciding that the claimant had a case in negligence they were then required to consider when he had “constructive” knowledge that he had suffered a significant injury. It was necessary to look at constructive knowledge as it was accepted that he could not have had actual knowledge at the time of injury when only 18 months old.

In making their decision the Appeal Justices took account of the fact that the claimant had asked for access to his records as long ago as 1992 even though he had not taken up the opportunity to inspect them until 2004.  The fact that the claimant had sought the records in the 1990s was considered significant as this was when he could have been expected to acquire knowledge from “facts ascertainable by himself or with the help of expert advice.”

As a result it was found that the claim was statute barred but because Section 33 was still a live issue the Court of Appeal have referred the matter back to the lower court to decide whether discretion would be given to allow the case to proceed out of time.

Two other interesting cases, both at first instance, are TCD v Harrow Council and others decided by Justice Eady on 10 December and Robinson v Wirral MBC decided the previous day.

TCD was another case alleging a failure by three local authorities to remove the claimant from the care of an abusive parent. The claimant, who is now 42, was sexually abused by her adoptive father for many years. Despite a conviction for sexual assault against her in 1977 the claimant was allowed to continue living in the same household with him until he was convicted of her rape in 1982. As the claimant had made complaints during her childhood the court was satisfied that she was fixed with actual knowledge of a significant injury at least when she reached her majority so that the claim was statute barred. Section 33 discretion was not allowed as, in the case of each local authority, it was found that there could not be a fair trial on negligence due to missing witnesses and documents. Another good case for defendants.

A less satisfactory result was reached in Robinson where the court did give discretion for the claim to proceed out of time despite the date of knowledge being at least his 16 th birthday in 1980.

This case involved the claimant saying that he had been sexually abused by an employee of the defendant council, a Mr H. No complaint was made until 2000 when the claimant was approached by the police investigating another abuse case. At that time the claimant developed psychiatric problems having not done so before but it was accepted that he would have known the assaults were wrong at the time. The alleged abuser was interviewed and denied the allegations. He died shortly afterwards. The claimant’s evidence was not particularly cogent as he had difficulty with dates.

The judge had to decide, as a preliminary issue, on whether the case should be allowed to proceed out of time. Surprisingly, despite the problems referred to above, the judge found that there could be a fair trial. This was because the claimant’s evidence was corroborated by a number of others who had also complained about Mr H and his view that even if Mr H had been alive he would have contributed little more than denying the allegations. Lastly, and probably most significantly, the judge found that the defendants had made little effort over the last six years to try and trace significant witnesses so that they had no evidence to offer the court. A lesson to defendants to do everything possible to try and trace witnesses and documents if you want to argue prejudice in defending this type of case.

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