29.7.09  

Court of Appeal considers application of s.33 Limitation Act 1980 in abuse claims

In these claims, appeals were brought against decisions relating to the exercise of discretion under s.33 Limitation Act 1980. All the Claimants alleged they had suffered sexual abuse at a children’s home or homes.

Held: The Court of Appeal commented that these appeals follow:

  • The decision of the House of Lords in A v Hoare [2008], where it was held that s.11 of the Limitation Act (as opposed to s.2) applied to cases of deliberate assault. This meant that claimants could ask the courts to exercise their discretion under s.33. As a result, in order to be able to seek an extension to the limitation period under s.33, it is no longer necessary to establish systemic negligence.
  • The finding in Hoare that s.14, relating to the date of knowledge, should be applied more narrowly than previously. The test should be an impersonal one, based on whether the claimant reasonably would have considered the injury sufficiently serious to justify proceedings. The right place to consider the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is under s.33.  

The starting point for considering whether discretion should be exercised under s.33 was set out by the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd [2003]. 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 to all the circumstances of the case, including those specifically mentioned in s.33(3). However, the developments referred to above should be taken into account.

On this basis, the Court of Appeal reviewed the decisions that had been taken in these cases. It was noted that the ambit of the discretion granted under s.33 is generous. In all three Nugent Care Society cases, the exercise of discretion under s.33 was upheld (twice in favour of the Claimant and once in favour of the Defendant). In the Wirral case, the exercise of discretion in favour of the Claimant was upheld.

Comment: Whilst this decision has not made new law, it has provided helpful clarification and guidance on the application of the s.33 discretion.

Defendants and their insurers will be disappointed to note that, in the majority of cases, the Claimants were able to proceed with their claims many years after the alleged events.

However, this will not always be the case. The Court of Appeal commented that it is important to consider what effect the passage of time would have on the question of whether the defendant was prejudiced and, if so, balance any prejudice against other factors. Prejudice to the defendant can include prejudice in consideration of issues of causation.

Each claim will be considered on its own merits and the Court of Appeal indicated that oral evidence may be necessary for the issues to be properly determined. Defendants should, in appropriate cases, continue to contest attempts to bring claims for abuse at a late stage. The decision to contest should involve careful consideration of their access to evidence, both in relation to liability and causation. As a rule of thumb, where the claim arises as a result of a successful prosecution then there will be little issue surrounding exercising s.33 discretion. That said, we have dealt with cases where the abuser has been convicted of some abuse but not the extensive abuse alleged at a later date in the civil case or in circumstances where the abuser was acquitted of some of the charges. In those cases, it may be open to the defendant to argue against the application of s.33 discretion.