Ellam v Ellam

When deciding whether to disapply the personal injury limitation period under section 33 of the Limitation Act 1980, the court must determine whether allowing the action to proceed would be equitable to both parties. It must consider all the circumstances, including the statutory factors, without assigning any factor predetermined importance.

The possibility of a fair trial is important and ordinarily necessary, but it is not sufficient. The court must also assess the length and effect of the delay, the reasons for it, prejudice to each party, the claimant’s promptness and the steps taken to obtain advice. Delay attributable to advisers does not invariably relieve the claimant of its consequences.

The claimant sought damages from her father for personal injury allegedly caused by persistent sexual abuse during her childhood. The allegations were denied. Proceedings were commenced approximately 26 years after she attained her majority and more than four years after she had been informed that the decision in A v Hoare [2008] UKHL 6 made an application under section 33 of the Limitation Act 1980 possible.

His Honour Judge Harris QC, sitting as a Deputy High Court judge, determined limitation as a preliminary issue. He refused to disapply section 11 under section 33 and dismissed the action. The claimant appealed, alleging that the judge had applied the wrong test, failed to balance prejudice, overlooked psychiatric evidence, inadequately assessed the reasons for delay and treated the discretion as available only exceptionally.

The central issue was whether the judge had misdirected himself or reached a conclusion outside the permissible exercise of his discretion.

1. Appeal dismissed. McCombe LJ held that section 33 of the Limitation Act 1980 asks whether it would be equitable to allow the action to proceed despite expiry of the primary limitation period. That is equivalent to asking whether a trial would be fair in all the circumstances. The court must consider every relevant circumstance, including the factors specified in section 33(3). No factor has predetermined importance; its weight varies with the case.
2. The possibility of conducting a fair trial is important, but it does not supersede the other considerations. The judge had addressed both whether it was fair to require the defendant to face a trial and whether a fair trial could be conducted. He had also balanced the parties’ prejudice, including the loss and deterioration of peripheral evidence, against the surviving records and the parties’ likely recollection of the central allegations.
3. References to an “exceptional indulgence” did not impose an additional threshold. They meant only that the claimant sought permission to proceed outside the limitation period. The discretion remains broad and unfettered, although the claimant bears the burden of showing by reference to the statutory criteria that disapplication is equitable.
4. The psychiatric report was not evidence which the judge had been required to consider. Permission to rely upon it had been left open, but the claimant made no renewed application. The defendant consequently had no opportunity to obtain responsive expert evidence.
5. The judge was entitled to find that the delay was inadequately explained. More than four years elapsed after the claimant learned of the change in the law. A claimant who seeks relief long after expiry must proceed with despatch. Delay attributable wholly or partly to advisers does not invariably insulate the claimant from its consequences. On the facts, the post-2008 delay was egregious, and the factors concerning its length and reasons, promptness and the obtaining of advice weighed heavily against relief.
6. Lewison LJ agreed. He emphasised that a fair trial is a necessary but not sufficient condition for disapplication. The court must examine the section 33(3) factors and then stand back to assess all the circumstances, fairly to both claimant and defendant. Pitchford LJ agreed with both judgments.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the refusal to disapply the limitation period under section 33 of the Limitation Act 1980.
• High Court, Queen’s Bench Division: His Honour Judge Harris QC, sitting as a Deputy High Court judge, determined limitation as a preliminary issue, refused to disapply section 11 and dismissed the action with costs. No neutral citation is stated.