In the recent case of RE –v- GE, the Court of Appeal provided some welcome guidance on limitation in abuse claims. Ian Carroll considers the decision and likely impact on both claimants and defendants.
Before January 2008, people bringing personal injury claims arising from alleged deliberate assaults had to do so within a rigid non-extendable six year window. Otherwise, their claim was barred under section 2 of the Limitation Act 1980. Therefore, someone who had been sexually abused as a child had until his or her 24th birthday to bring a claim i.e. within six years of them attaining majority.
However, in 2008 in the case of A –v- Hoare the House of Lords decided that these claims fell under section 11 of the Act. It was held that victims of alleged deliberate assaults now had a ‘more generous’ three year period in which to bring a claim. The generosity of this shorter period arose because it also meant that section 33 of the Act now applied. Section 33 permits the court to override the limitation period where it is equitable to do so. This was seen as a welcome development for victims of historic sexual abuse, for whom a rigid six year limitation period had been an insurmountable hurdle. Not surprisingly, the result has been a flurry of claims arising from abuse alleged where claimants, despite long delays, are seeking to persuade the court to exercise its discretion in their favour.
RE (the claimant) alleged that her father GE (the defendant) had sexually abused her as a child between 1974 and 1982. She complained on numerous occasions of the alleged abuse, most notably during her parents’ divorce proceedings, during which her mother had relied on the alleged abuse as evidence of the defendant’s unreasonable behaviour. Nonetheless, the claimant did not ultimately issue a civil claim until 2012; 26 years after attaining her majority and almost 5 years after the Hoare judgment to which her solicitors had promptly alerted her. The judge at first instance, HHJ Harris QC, declined to exercise his discretion under section 33 to extend the limitation period and therefore dismissed her claim. The claimant appealed.
Court of Appeal judgment
The claimant appealed on four grounds. All were rejected by McCombe LJ in his leading judgment.
The first was that the judge had applied the wrong test under section 33 of the Act by not considering whether a fair trial was still possible, but rather asking whether it was fair to the defendant to face such a trial. LJ McCombe stated that the test under section 33 was whether it ‘would be equitable to allow the action to proceed’. He considered that this was no different a question from the question HHJ Harris asked, namely whether it is fair in all the circumstances for the trial to take place. McCombe LJ added that this question can only be decided with reference to all the circumstances. These include the factors set out in section 33 as well as factors specific to the case. All are potentially important though their intensity will vary from case to case.
The claimant’s second ground was that the judge erred in stating that the section 33 discretion was only to be exercised in exceptional cases. However, McCombe LJ found that the judge had not said any more than that the claimant was asking for the ‘exceptional indulgence’ of proceeding outside the limitation period.
The third ground was that the judge had failed to consider the balance of prejudice. In rejecting this, McCombe LJ noted that the judge had in fact recognised that the memories of the parties could not be supposed to have dimmed, but also correctly weighed in the balance the loss of some evidence.
The claimant’s fourth and final ground was that the judge had erred in finding that the reasons for the delay had not been adequately explained. In rejecting this ground, McCombe LJ emphasised that while it might have been possible to explain away some of the early period following the claimant’s 18th birthday, it was quite impossible to do so for the period after 2008, when it was clearly incumbent upon the claimant and her solicitors to proceed with despatch. Although much of the near five year delay was caused by problems obtaining a report from the first medical expert, there is no evidence that the claimant was anxious about the progress of her claim. As a result, the judge was fully entitled to conclude that there was a lack of good reason for the delay.
Although the Court of Appeal did not appear to take into account the entire period of the claimant’s delay, and not just the post-Hoare period, this is clearly a helpful judgment for defendants. This is particularly so where there is evidence that a claimant took legal advice following Hoare, or indeed where a claimant has issued a letter of claim but has then failed to issue proceedings promptly and without any reasonable explanation for the further delay.