Rowe v Kingston-Upon-Hull City Council & Anor

For limitation purposes, a claimant's knowledge is knowledge of the material facts of injury and its cause, not knowledge that those facts give a legal cause of action. Where a congenital condition could have been alleviated, the relevant injury may be the failure to mitigate its adverse consequences.

The three-year limitation regime in the Limitation Act 1980 is compatible with article 6 where it pursues the legitimate and proportionate aim of preventing stale claims. Under section 33, the central question is whether the claim can fairly be tried. The court must consider the whole period since the events, including the practical effect of lost records and unavailable witnesses on the defendant's ability to defend.

The claimant alleged that two education authorities were negligent in failing to identify and alleviate the effects of his dyslexia while he attended their schools between 1979 and 1991. He issued proceedings in September 1998, after learning of the decision in Phelps.

His Honour Judge Anthony Thompson QC, sitting as a deputy High Court judge, held that the claim was not time-barred because the claimant lacked knowledge of a significant injury until 1997. Alternatively, the judge would have disapplied the limitation period under section 33 of the Limitation Act 1980.

The education authorities appealed. The central issues were when the claimant acquired the statutory knowledge required by section 14 and whether it was equitable to permit this long-delayed claim to proceed.

1. Appeal allowed unanimously. Keene LJ, with whom Mummery LJ agreed, held that the action was statute-barred. The claimant had the requisite knowledge by his eighteenth birthday, so the three-year period began then and expired before the writ was issued.

2. The relevant injury was not the congenital dyslexia itself. It was the failure to mitigate its adverse consequences, an approach approved in Phelps [2001] 2 AC 619 and followed in Robinson [2002] ELR 681. The judge's unchallenged findings established that, before majority, the claimant knew that he was dyslexic, that measures could have helped him, and that his schools had not taken them. Those facts gave him knowledge of the injury and its significance. Knowledge that he could sue, or that the conduct was legally negligent, was irrelevant under section 14.

3. The proposed interpretation based on article 6(1) of the European Convention was rejected. The limitation provisions pursue the legitimate aim of protecting defendants from stale claims and are proportionate. A claimant is not denied access to a court merely because a later decision clarifies that the facts may found a legal claim.

4. The judge had also erred in exercising the section 33 discretion. He focused too narrowly on the additional delay after expiry of the primary period. The statutory balancing exercise requires consideration of the whole lapse of time and whether a fair trial remains possible. Here the events were between seven and nineteen years old; witnesses could not be traced or had no recollection, and records were absent or sparse. Those handicaps materially impaired both authorities' ability to defend, while the later authority in E v Dorset County Council showed that the legal claim was arguable within the primary period.

5. The claimant had not discharged the heavy burden of showing that it was equitable to disapply the time limit. The application for an extension under section 33 was refused. Mummery LJ additionally considered that section 3 of the Human Rights Act 1998 was not generally available retrospectively to remove a limitation defence for a cause of action arising before that Act came into force.

• Court of Appeal (Civil Division) Allowed the education authorities' appeal and held the claim statute-barred.
• Queen's Bench Division His Honour Judge Anthony Thompson QC, sitting as a deputy High Court judge, had held that the claim was in time and would alternatively have disapplied the limitation period under section 33 of the Limitation Act 1980.