The Court of Appeal clarifies the test for the court's discretion to disapply a limitation period

http://www.bailii.org/ew/cases/EWCA/Civ/2015/287.html

Section 33 of the Limitation Act 1980 gives the courts a discretion to disapply a limitation period "if it appears to the court that it would be equitable to allow an action to proceed" having regard to the degree of prejudice which would be suffered by both the claimant and the defendant. The section also provides that the court shall have regard to all the circumstances, and lists various factors which should be taken into account.

In this case, the claimant's claim for sexual abuse was time barred and at first instance the judge declined to exercise his discretion under section 33. The claimant appealed. One of the grounds of the appeal was that the judge had applied the wrong test as to the exercise of his discretion by not considering whether a fair trial was still possible, but instead asking whether it was fair to the defendant to face such a trial.

The Court of Appeal rejected that argument. Although the issue of whether a fair trial can still take place is "undoubtedly a very important question", that fact that a fair trial can still take place "is by no means the end of the matter" (although, conversely, if a fair trial cannot take place, it is very unlikely to be "equitable" to expect the defendant to have to meet the claim"). Nor had the judge erred in determining that the discretion was only to be exercised "in exceptional cases". The Court of Appeal held that the judge had been saying no more than that the claimant was asking for the "exceptional indulgence" of proceeding outside the limitation period. The judge had accepted that he had a wide and unfettered discretion.

Accordingly, the claim was time-barred.