Cross v Liverpool City Council

At the permission stage, subsequent authoritative guidance can provide a compelling reason to revisit a dismissal where it materially changes the legal approach and makes a different outcome arguable. In late abuse claims, A v Hoare and others [2008] UKHL 6 shifted emphasis from section 14 to section 33 of the Limitation Act 1980. A local authority may also face an arguable case of vicarious liability for abuse by carers operating a children’s home on its behalf, irrespective of the authority’s knowledge. Apparent unfairness caused by lack of legal representation and inconsistent outcomes may reinforce the case for permission.

Mr Brian Cross sought permission to appeal from an order of Irwin J dated 28 February 2007 dismissing his claim for damages for personal injuries arising from alleged physical, emotional and sexual abuse while in foster or voluntary accommodation associated with Liverpool City Council. The judge accepted that Cross had been cruelly treated but found that the council lacked knowledge of the abuse. The claim was dismissed as statute-barred because time could not be extended under section 33 of the Limitation Act 1980.

Smith LJ had refused permission on paper. Before Ward LJ, Cross relied on the subsequent decision in A v Hoare and others [2008] UKHL 6 and on possible vicarious liability. The central issues were whether the later limitation guidance made the appeal arguable and whether the council might be liable irrespective of knowledge.

1. Permission granted. Ward LJ held that there was a compelling reason for the Court of Appeal to reconsider the dismissal. The court was not deciding the merits of the underlying claim or predicting that Cross would succeed.
2. The first-instance decision had treated the claim as statute-barred because time could not be extended under section 33 of the Limitation Act 1980. The House of Lords’ subsequent decision in A v Hoare and others [2008] UKHL 6 restated the approach to late claims by victims of abuse and shifted the emphasis from section 14 to section 33. It was arguable that, had that guidance been available, Irwin J might have reached a different conclusion.
3. The council’s lack of knowledge did not necessarily defeat the claim. The evidence arguably showed that the children’s home was operated on the council’s behalf, with the carers acting as parental figures. The claim could therefore arguably be examined as one of vicarious liability, rather than solely as a claim based on systemic abuse requiring knowledge by the council. This was an arguability point, not a final determination of liability.
4. Further concerns reinforced the need for reconsideration. Cross had been removed from a group action, appeared without legal advice, and said that siblings in the same home had received legal representation and recovered damages. The apparent disparity was regarded as odd and unsatisfactory in light of the finding that Cross had been abused.
5. Ward LJ strongly recommended mediation and directed that the usual mediation letter be sent. The court office was asked to explore pro bono representation or assistance in finding suitable personal injury lawyers and obtaining legal aid.

1. Court of Appeal (Civil Division): Ward LJ granted permission to appeal on 7 February 2008, relying principally on the subsequent limitation guidance in A v Hoare and others [2008] UKHL 6. Mediation was strongly recommended.
2. Queen’s Bench Division, Liverpool District Registry: Irwin J dismissed Cross’s damages claim on 28 February 2007 because the claim was statute-barred and time could not be extended under section 33 of the Limitation Act 1980.
3. Permission stage: Smith LJ refused permission on paper in December 2007. Ward LJ subsequently granted permission.