T v Boys & Girls Welfare Service

Section 33 of the Limitation Act confers a broad equitable discretion. The court must weigh potential prejudice and consider all the circumstances, including the statutory factors, which are non-exhaustive.

In historic abuse claims, longer delay generally increases prejudice to the defence. Reasons for delay after the date of knowledge usually carry limited weight because the statutory date-of-knowledge provisions already address excusable ignorance. A stale claim itself causes prejudice, so section 33 is ordinarily reserved for special cases. An appellate court should intervene only where the first-instance decision was plainly wrong and outside the range of reasonable disagreement.

The appellant alleged that he suffered severe emotional and psychological injury from sexual abuse while in an assisted community home managed by the respondent. He issued negligence proceedings in June 2002, about 28 years after the alleged events.

At a preliminary limitation hearing, HHJ Trigger held that the primary limitation period had expired in May 1984 and that the appellant’s date of knowledge was in June 1997. He declined to disapply limitation under section 33 of the Limitation Act and dismissed the claim. The parties did not challenge the conclusions under sections 11 and 14. The issue on appeal was whether the refusal to exercise the section 33 discretion was one with which the Court of Appeal could interfere.

The appeal was dismissed unanimously. Latham LJ gave the leading judgment, with Chadwick LJ and Sir Swinton Thomas agreeing.

1. Nature of the discretion. Section 33(1) requires the court to decide whether it would be equitable to disapply the limitation provisions, having regard to prejudice to the claimant and defendant. Section 33(3) provides a non-exhaustive list of factors. The court must consider all the circumstances rather than determine the matter by a simple comparison of hardship.
2. Appellate restraint. The discretion is broad. The Court of Appeal should not intervene unless the judge was plainly wrong and exceeded the range within which reasonable disagreement is possible. The central practical question is whether the claim can still be fairly tried. This approach was taken from CD v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, with support from Donovan v Gwentoys Ltd [1990] 1WLR 472.
3. Relevant delay and prejudice. Applying Thompson v Brown [1981] 1WLR 744, the relevant delay under section 33(3)(a) and (b) was the period after expiry of the primary limitation period. The judge had correctly treated this as the two years from June 2000 to June 2002. That did not eliminate the significance of the 28-year interval since the alleged abuse or the fact that the respondent first learned of the allegations when proceedings were served.
4. Evidence. The judge was entitled to find that the evidence was less cogent. The alleged abuse was uncorroborated, witnesses might be difficult to trace, records had been lost or destroyed, and the absence of contemporaneous notes limited the psychiatric evidence. The absence of earlier references to abuse also made causation and the extent of injury difficult to assess.
5. Special cases. The generous date-of-knowledge provisions in sections 11 and 14 ordinarily mark the limit of permissible prejudice. Section 33 is therefore available only in special cases. The claimant could succeed only by showing that the delay caused no additional prejudice of any kind to the defendant. A stale claim, particularly one of which the defendant was unaware until after limitation expired, is itself prejudicial.
6. The judge had not misdirected himself and was entitled to conclude that this was not a case for exceptional disapplication of limitation.

1. Court of Appeal (Civil Division): The appeal from the limitation decision was dismissed: [2004] EWCA Civ 1747.
2. Liverpool County Court (Birkenhead): HHJ Trigger dismissed the claim after a preliminary hearing, refusing to direct that section 33 limitation provisions should not apply. No separate citation was stated in the judgment.