AP v Tameside Metropolitan Borough Council

The discretion under section 7(5)(b) of the Human Rights Act 1998 is broad and must be exercised by examining all relevant circumstances. It is not governed by a predetermined list of factors or a presumption in favour of extending time for a claimant who lacks capacity. Mental incapacity is relevant, but the weight given to it depends on the facts, including when representatives became aware of the essential facts and whether they had access to appropriate expertise. Delay, the legislative policy for prompt human-rights claims, prejudice, proportionality and the broad merits may all be considered. On the facts, the claimant had been represented by family, an advocate and specialist solicitors, yet proceedings were issued 18 months after expiry of the primary limitation period. It was therefore not equitable to extend time.

The claimant, a protected party with Down’s syndrome and significant care needs, sought declaratory relief and damages under Articles 5 and 8 of the ECHR for his removal from the family home and residence in accommodation between February 2011 and August 2013. Proceedings were issued on 24 February 2016.

The claim was outside the one-year limitation period in section 7(5)(a) of the Human Rights Act 1998. The claimant accepted that section 28 of the Limitation Act 1980 did not displace that period, but argued that his lack of capacity created a rebuttable presumption in favour of an extension under section 7(5)(b). The central issue was whether an extension would be equitable having regard to all the circumstances.

1. Governing approach. The discretion under section 7(5)(b) of the Human Rights Act 1998 is expressed in broad terms. The court must examine all relevant circumstances and decide whether a longer period would be equitable. Section 7(5) must not be treated as if it reproduced section 33 of the Limitation Act 1980, although section 33-type factors may be considered where appropriate. There is no predetermined list of factors and no pre-ordained weight to be given to any particular factor.
2. Mental incapacity. The claimant’s lack of capacity and dependence on others to vindicate his rights are relevant factors, but they do not create a rebuttable presumption in favour of an extension. Parliament had not provided an exception equivalent to section 28 of the Limitation Act 1980. The weight given to dependency depends particularly on when someone began acting for the claimant, when that person could obtain knowledge of the essential facts, and the expertise available.
3. Application. The claimant had family representatives, an Independent Mental Capacity Advocate and specialist solicitors. They had knowledge of the essential facts, and of the possible human-rights issues, by at least January or February 2014 and arguably earlier. Their knowledge and failure to protect the limitation position by issuing a protective writ could not be discounted because of the claimant’s incapacity.
4. The requested extension was substantial. The primary limitation period had expired in August 2014, but proceedings were not issued until February 2016. The court was entitled to consider the statutory policy favouring prompt and economical determination of claims against public authorities, the unexplained delay, the real trial and administrative prejudice to the defendant, and proportionality. The court assumed, without deciding, that the underlying claim was good and valuable.
5. It would not be equitable to extend time. The application for an extension under section 7(5)(b) was refused and the human-rights claim was consequently time-barred.