Are you sitting comfortably?

There is a tendency for many lawyers on the part of defendants to assume that claimants contemplate the prospects of commencing any civil action against the police from the luxury of a comfortable armchair with all the information that they might need to take any decision, conveniently at their fingertips.

As many lawyers on the part of claimants would point out, this 'person in a comfortable armchair' assumption is often far from the reality and there can be many very good reasons why actions are not commenced within the three-year limitation period.

Traditionally, the difference in approach has focused around sexual assault cases. Sedley LJ encapsulated the issue in Ablett v Derby County Council [2001] (unreported) when he said 'it is in the nature of abuse of children by adults that it creates shame, fear and confusion, and these in turn produce silence. Silence is known to be one of the pernicious fruits of abuse. It means that allegations commonly surface, if they do, only many years after the abuse has ceased.'

The ruling in A v Hoare [2008] UKHL 6 has not removed some of the uncertainties, and there are other reasons why allegations, particularly those made by claimants wishing to start a civil action against the police, might not find their way into a Particulars of Claim until some time after the allegation complained of.

The demise of publicly funded work

Following the changes to the legal aid regime, anyone who might be eligible to apply for legal aid may now have to travel up to 75 miles (or more) to be seen by a solicitor who has a franchise to deal with his case because even if the firm has a family franchise which entitles civil work to be undertaken this does not mean there will be a civil litigator able and willing to take the case on.

To those who specialise in dealing with civil actions against the police and prison law cases, the problem takes on a further dimension of difficulty because even when one gets past the hurdles of arranging a meeting with a client, one then has to face the, at times, seemingly insurmountable obstacles laid out by the Legal Services Commission.

Of course it is right that public funding should only be reserved for deserving cases and of course cases must meet set criteria before funding is granted. However, to those of us used to dealing with the restrictions placed upon and by the LSC, one sometimes wonders whether there is any case that the LSC would fund before the very lengthy appeals procedures are completed.

Our experience is that claimants (who in due course may be proved to have suffered significant mental and other injury) may often take up to a year to see their solicitor and we have been in cases where it has taken much longer. Once the funding application is made, the LSC invariably declines on the preliminary basis that the IPCC process (Independent Police Complaints Commission) must first be exhausted. Once that has been done, the subsequent further refusal by the LSC has been received and that appeal process has ended successfully, a letter of claim has to be sent and the response should hopefully be received within three months. CPR PD 16, paragraph 4.1(3) requires that a medical report needs to be attached to the Particulars of Claim and so medical evidence needs to be obtained.

By the time our 'person in his comfortable armchair' is finally ready to issue proceedings, the limitation period may have long have expired.

We have of course assumed that the LSC process has finally ended positively. Unless there are solicitors who are prepared to drive cases forward in the face of the numerous knockbacks from the LSC, a large number of claimants will be unable to have their cases considered despite the strong merits of their cases.

And so our claimant, who has managed to persevere with his case, is faced with an 'outraged' application on the part of a defendant that there should be summary judgment or that the action should be struck out by reason of a limitation defence.

The general rule is that the period of limitation for an action in tort is six years from the date on which the cause of action accrues (section 2 of the Limitation Act 1980). Sections 11-14 contain provisions, first introduced by the Limitation Act 1975, which create a different regime for actions for 'damages for negligence, nuisance or breach of duty', where the damages are in respect of personal injuries.

In such cases, the limitation period is three years from either the date when the cause of action accrued or the 'date of knowledge' as defined in section 14, whichever is the later.

Section 33 gives the court a discretion to extend the period when it appears that it would be equitable to do so having regard to both the degree to which the provisions of the Act prejudice the claimant and to the extent to which a decision to allow the action to proceed would prejudice the defendant.

Refocusing the law

Before Hoare the problem arose in Stubbings v Webb [1993] AC 498 where it was held that deliberate assault, including indecent assault, was held not to fall within section 11. In this analysis the section 33 discretion was not activated and there was therefore no discretion to 'do the right thing'.

The anomaly that this led to was seen in S v W (Child Abuse: Damages) [1995] 1 FLR 862 in which the plaintiff sued her father and mother for sexual abuse by the father. The action was commenced over nine years after the last act of abuse. The cause of action against the father was intentional assault and the claim was therefore struck out. The cause of action against the mother was negligent failure to protect the plaintiff from the father. This fell under section 11 of the Limitation Act 1980 and was subject to the discretionary extension under section 33 which the court exercised.

The decision in Hoare is to be welcomed in many ways for refocusing the law on the interests of justice through the reaffirmed and genuinely wide discretion within section 33. However, what it also did, and many lawyers for claimants and defendants are still catching up with the implications, is in effect to reduce the limitation period for deliberate assault type cases from six years to three. This has led to a number of claimants finding themselves outside the newly imposed limitation period of three years. One would hope that the lords, in giving with one hand yet taking with the other, might consider just such a factor to be fully taken into account in this 'even broader than before' discretion.

There is still a large measure of ambiguity as to whether a false imprisonment claim or malicious prosecution is or is not a 'personal injury' based claim which thereby falls within section 11. There are a few cases going through the courts at the moment where this issue is about to be tested.

The implications may be of considerable significance because either it is a six-year limitation term with no discretion to extend (section 33 allows for the discretion to be exercised only in respect of actions involving personal injury or death) or it is an extendable three-year term.

The answer will probably turn on the precise circumstances of the case. For example, a false imprisonment claim based solely on Thompson v Commissioner of Police [1997] EWCA Civ 3083 principles of so much per hour by way of assessment of damages, might be considered as non-personal injury as compared with an adjustment disorder caused by a particularly traumatic stay in custody which might be considered a personal injury claim.

Date of knowledge

Returning to the issue of discretion, a large part of Hoare dealt with the issue of the date of knowledge under section 14(2) of the Act. Baroness Hale certainly felt that the date of knowledge issue was better considered within a judge's section 33 discretion and she emphasised that she agreed that the section 33 discretion should be exercised even more broadly than before.

At paragraph 60 she says: 'The injustice to a claimant who may be deprived of his claim, perhaps as a result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event when important evidence may no longer be obtainable.'

She goes on to conclude: 'I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffman'¦ With a properly directed discretion one should not need the date of knowledge provision at all.'

Lord Hoffman stated at paragraph 45 that: 'Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some way suppressed, counts as knowledge for the purposes of the Act.'

The discretion conferred on the court by section 33 requires that the court must have regard to all the circumstances of the case.

In Davis v Jacobs [1999] EWCA Civ 911, it was emphasised by the Court of Appeal that the judge is entitled to have regard to theultimate prospects of success and that it is incumbent on the judge to take great care in so doing. This may be one reason why if this is to be a preliminary issue, it should only take place once the evidence has been filed and served and that dealing with the matter before the evidence is available would be premature.

A list of specific considerations to take into account in the question of the exercise of discretion is set out in section 33(3):

a) The length and reasons for delay on the part of the claimant.

b) The effect of any delay on the cogency of the evidence.

c) The conduct of the defendant.

d) The duration of any disability of the claimant arising after accrual of the cause of action.

e) The conduct of the claimant.

f) The diligence on the part of the claimant in obtaining medical, legal or other expert advice.

Lord Griffiths in Donovan v Gwentoys Ltd [1990] 1WLR 472 emphasised that these specific considerations are not intended to place any fetter on the court's general discretion.

The judge will decide the issue as a matter of equity. The question is whether it would be equitable for the action to be allowed to proceed.

Lord Bingham in Horton v Sadler [2006] UKHL 27 said: 'In resolving an application under section 33 the court must make a decision which the inevitable effect is either to deprive the defendant of an accrued statute bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes, the court must be guided by what appears to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed [above].'

Our contention is that once our claimant has managed to get himself out of his comfortable armchair, to then negotiate the obstacle course of being ready, that these real world difficulties should be considered as factors to be fully taken into account.