Smith v Hampshire County Council

For the purposes of the Limitation Act 1980, knowledge does not await a formal dyslexia diagnosis. The question is what a reasonable person in the claimant’s position would have done, including a reasonable person with dyslexia. Observable difficulty with reading and writing, together with advice to obtain an assessment, may establish knowledge. A claimant cannot postpone time by failing to take recommended steps to obtain expert advice. Under section 33, the court must balance both parties’ prejudice. Long delay, lost documents and fading memories may outweigh a claim with only some prospect of success. The appellate court should not re-try that discretionary assessment.

The claimant alleged that Hampshire County Council had negligently failed to identify and appropriately educate him in relation to dyslexia. Proceedings were issued on 4 January 2002. The High Court, after trying preliminary issues, held that he had the relevant knowledge by about 20 October 1998 and declined to disapply the limitation period under section 33 of the Limitation Act 1980: [2006] EWHC 743 (QB).

The appeal challenged both the finding of knowledge under section 14 and the exercise of the section 33 discretion. The central issues were whether knowledge required a formal expert diagnosis, and whether the evidence justified allowing the claim to proceed despite the delay.

The appeal was dismissed. Longmore LJ gave the leading judgment. May LJ and Smith LJ agreed.

1. Constructive knowledge under section 14(3) of the Limitation Act 1980 is assessed by asking how a reasonable person in the claimant’s position would have acted. The comparator was a reasonable person with dyslexia, not a person without the condition. The court rejected the submission that the assessment had to await a formal diagnosis.
2. The claimant knew by about 20 October 1998 that he could not read and write, that the condition was or might be dyslexia, and that it was attributable to his schooling. A formal diagnosis was unnecessary. His knowledge of the observable difficulties and their possible connection with the school’s failure was sufficient. In any event, he had failed to take reasonable steps to obtain expert advice after being advised to seek an assessment.
3. The fourth principle in Spargo v North Essex District Health Authority [1997] PIQR 235 concerned uncertainty about attributability. It did not postpone the claimant’s knowledge where attributability was already known.
4. In exercising the section 33 discretion, the judge had properly considered the statutory factors and balanced prejudice to both sides. Hampshire faced substantial prejudice from the loss of documents and fading memories. The claimant’s case had only some prospect of success. Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099 was not confined to the circumstances suggested by the appellant.
5. The court should resist trying the underlying negligence claim on a section 33 application. The absence of surviving documents did not justify assuming that earlier educational decisions were negligent. The judge’s factual findings and discretionary conclusion disclosed no appealable error.

• Court of Appeal (Civil Division) — Appeal dismissed.
• High Court of Justice (Queen’s Bench Division) — HHJ Richard Seymour QC held that the claimant had acquired the relevant knowledge by about 20 October 1998 and refused to disapply the limitation period under section 33: [2006] EWHC 743 (QB).