M (A Minor) v Ministry of Justice

A time bar under section 7(5) of the Human Rights Act 1998 is an ordinary limitation defence, not a restriction on the court’s jurisdiction. A defendant may therefore plead it without making an application under CPR Part 11.

When deciding whether to extend the one-year period under section 7(5)(b), the claimant bears the ordinary burden of persuading the court that an extension is equitable. The discretion is wide and requires a balance of all circumstances. Factors analogous to those in section 33(3) of the Limitation Act 1980 may assist, but they are neither exhaustive nor ranked. An appellate court will interfere only for an error of principle or where the discretionary decision lies plainly outside the permissible range.

The appellant, a young child acting through his mother as litigation friend, claimed damages under Articles 2 and 8 of the Convention following his father’s suicide while in prison. The claim was issued almost four years after the death and was therefore outside the primary one-year period in section 7(5) of the Human Rights Act 1998.

His Honour Judge Trigger, sitting in Liverpool County Court, determined a preliminary issue. He held that it was not equitable to extend time under section 7(5)(b), having considered the child’s minority, the delay after the prison investigation and inquest, the knowledge of his advisers, and prejudice to the defendant. He dismissed the claim.

The appeal raised whether section 7(5) was jurisdictional and had to be raised under CPR Part 11, the proper criteria for an equitable extension, and whether the judge had wrongly exercised his discretion.

1. Appeal dismissed. Rix LJ gave the substantive judgment, with which Lord Neuberger and Bennett J agreed.

2. Section 7(1) of the Human Rights Act 1998 confers jurisdiction to bring proceedings, but section 7(5) imposes a limitation period. The expressions that proceedings “must be brought” within a stated time and that an action “shall not be brought” after a stated time were legally indistinguishable for this purpose. Section 7(5) itself referred to stricter procedural time limits. It therefore operated as a defence and did not require the Ministry to challenge jurisdiction under CPR Part 11.

3. The court followed Dunn v The Parole Board [2008] EWCA Civ 374. The wider approach to jurisdiction in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 concerned late service of a claim form, which could affect the court’s authority to try the claim. It did not convert the statutory time limit in section 7(5) into a jurisdictional requirement.

4. For section 7(5)(b), the claimant bore the ordinary burden of showing that an extension was equitable. The discretion was broad and depended on all the circumstances. It was legitimate to consider factors analogous to section 33(3) of the Limitation Act 1980, as recognised in Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133, but no fixed list or hierarchy governed the exercise.

5. The judge had considered the relevant matters: the claimant’s minority, substantial delay after the inquest, the mother’s and solicitors’ knowledge, the opportunity to seek an agreed extension or issue proceedings protectively, evidential prejudice, and fairness to both parties. He had not erred in principle. The loss of the claimant’s claim was inherent in the balancing exercise and had not been overlooked. Applying the appellate restraint stated in G v G [1985] 1 WLR 647, the decision was within the proper scope of the judge’s discretion.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the refusal of an equitable extension under section 7(5)(b) of the Human Rights Act 1998.
• Liverpool County Court (HHJ Trigger): On 2 April 2008, determined a preliminary limitation issue, refused an extension of time, and dismissed the claim.