Greater Manchester Police v Carroll

Under section 33 of the Limitation Act 1980, the court must make an unfettered and broad assessment of all the circumstances. It must balance the prejudice to the claimant if the claim is barred against the prejudice to the defendant if it proceeds. The statutory factors guide that assessment but do not restrict it.

A defendant alleging evidential prejudice must show that delay has made its evidence less cogent. Speculation about missing documents or witnesses is insufficient, particularly where there is no evidence that the material was lost during culpable delay. The reasons for delay, including reasonable fears of employment and criminal consequences and delay attributable to advisers, may properly favour disapplication. An appellate court will not interfere unless the discretionary decision involved an error of principle or fell outside the generous ambit of reasonable disagreement.

A former undercover police officer claimed damages against the Chief Constable for negligence and alleged breaches of health and safety regulations. He alleged that exposure to heroin during undercover work and training caused his heroin addiction and consequential psychiatric harm.

On a preliminary issue, HHJ Armitage QC held that the claim was brought within time under sections 11 and 14 of the Limitation Act 1980. The judge also held, alternatively, that the limitation period should be disapplied under section 33. On appeal, the claimant conceded that the judge had been wrong on the date of knowledge. The issue was therefore whether the judge had been entitled to exercise the section 33 discretion in the claimant’s favour.

1. Appeal dismissed. The claimant’s concession meant that the claim was outside the primary limitation period. The court nevertheless upheld the judge’s alternative decision to disapply that period under section 33 of the Limitation Act 1980.

2. Section 33 requires a broad and unfettered balancing exercise. The court must consider all the circumstances, including the statutory matters in section 33(3), and decide whether the claimant’s prejudice if barred outweighs prejudice to the defendant if the action proceeds. The claimant bears the ultimate burden, but the defendant bears the evidential burden of showing that delay has made the evidence less cogent.

3. The alleged documentary prejudice did not demonstrate real prejudice caused by culpable delay. There was no evidence of when the documents became unavailable. Some records were for the police to retain, without explanation for their absence. Other material might never have existed, and there was no evidence that potentially relevant police witnesses had been approached or could not recall events. The asserted prejudice was therefore speculative.

4. The judge was entitled to treat the claimant’s reasons for delay as material. His fear that disclosure of heroin addiction would lead to dismissal and criminal proceedings could reasonably explain his incomplete disclosure when seeking medical assistance. He instructed solicitors only a few months after expiry of the limitation period, while facing investigation and arrest. The later delay was attributable to legal advisers who considered, albeit wrongly, that time had not expired.

5. The claim was not so weak that it could properly be dismissed without trial. The appellant had shown neither an error of principle nor a conclusion outside the generous ambit of legitimate discretionary judgment. The claimant’s late application to rely on an unsigned witness statement was refused because it was served very late and was unnecessary to the result.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the alternative exercise of discretion under section 33 of the Limitation Act 1980: [2017] EWCA Civ 1992.
• County Court at Manchester: HHJ Armitage QC held that the claim was in time under sections 11 and 14 and, alternatively, would have disapplied the limitation period under section 33. The Court of Appeal accepted that the first conclusion was wrong but upheld the alternative conclusion.