Mensah v Islington Council & Anor

For limitation purposes, a claimant need not know that an act or omission was legally negligent or actionable. It is sufficient to know that a significant injury is capable of being attributed to an act or omission for which the defendant is responsible. Where knowledge arose many years before proceedings, the court may refuse to disapply the limitation period under Limitation Act 1980, particularly where the delay has seriously weakened the evidence. The court should consider all the statutory factors, including the reasons for delay, evidential cogency, the defendant’s conduct, disability, promptness and expert advice.

Mr Mensah claimed damages and an apology from Islington Council and East Sussex County Council for psychological damage allegedly caused by shortcomings in his childhood foster care. The claim was issued in September 1999, many years after he left foster care.

His Honour Judge Kennedy QC struck out the claim, finding that Mr Mensah had the necessary knowledge well before the relevant limitation period and declining to exercise the discretion under section 33 of the Limitation Act 1980. This was an application for permission to appeal following an earlier unsuccessful appeal. The central issues were when Mr Mensah acquired the statutory knowledge and whether the limitation period should be disapplied.

1. Application dismissed. Permission to appeal to the House of Lords was refused, with costs.
2. Under sections 11 and 14 of the Limitation Act 1980, knowledge does not require awareness that the defendant’s conduct amounted to negligence, nuisance or breach of duty. The claimant need only know that the injury was significant and attributable, in whole or in part, to an act or omission for which the defendant was responsible.
3. Mr Mensah’s handwritten letter of 22 July 1996 showed that he alleged mismanagement by Islington and sought compensation for his shattered life. Earlier probationary and psychiatric reports from 1989, and at the latest the 1994 report, showed awareness of his psychological and identity difficulties and their connection with his upbringing. The judge was therefore entitled to conclude that the requisite knowledge existed well before 23 September 1996, and probably from about 1989.
4. The discretion under section 33 was correctly refused. The court had to consider all the circumstances, including the statutory factors in section 33(3). The evidential difficulties were substantial because the claim concerned events extending from the 1960s to 1985, witnesses’ memories had faded, and relevant records were missing.
5. Additional considerations supported the result. There was grave difficulty in establishing that either council had breached the standard of care reasonably expected of local authorities at the relevant time. Recommendations for counselling, housing and other support also meant that litigation was unlikely to provide Mr Mensah with substantial additional benefit.
6. Lord Justice Gibson agreed with Lady Justice Arden. He additionally stated that the exceptional permission given to the Mackenzie friend to address the court created no precedent and endorsed the guidance in R v Bow County Court ex parte Pelling [1999] 1 WLR 1807.

• Court of Appeal (Civil Division): Application dismissed with costs; permission to appeal to the House of Lords refused.
• Lewes County Court: His Honour Judge Kennedy QC struck out the claim on 28 February 2000 and gave reserved reasons on 23 May 2000.