Young v Downey

The court may disapply the primary limitation period where, having regard to all the circumstances, it is equitable for a claim to proceed. The statutory factors focus the exercise of an unfettered discretion, whose essence is a balance of prejudice and the prospects of a fair trial. A claimant’s delay may be excusable where civil proceedings were reasonably deferred while criminal proceedings remained possible. In a claim alleging intentional unlawful killing, liability may arise for a participant in a concerted joint enterprise even if the participant was not present at the moment of the tort. The civil standard remains the balance of probabilities, although cogent evidence is required where the allegation is grave.

The claimant was the daughter of a soldier killed in the 1982 Hyde Park bombing. After criminal proceedings against the defendant were stayed as an abuse of process, she brought civil proceedings for damages, including a claim under the Fatal Accidents Act 1976 and a personal injury claim.

The defendant denied involvement but did not participate in the trial. The court was required to determine limitation and liability, including whether the claimant could rely on historic fingerprint evidence to establish that the defendant participated in the bombing.

1. Limitation. The claims were prima facie outside the primary limitation periods under sections 11 and 12 of the Limitation Act 1980. It was unnecessary to determine the precise date of knowledge under section 14 because the court would exercise the discretion under section 33 in any event.
2. The discretion under section 33 is unfettered. The factors in section 33(3) must be considered alongside all the circumstances. The central question is whether it is equitable to allow the action to proceed by balancing prejudice to the claimant against prejudice to the defendant. The claimant’s delay was excusable because it was reasonable to await criminal proceedings, and she acted promptly after those proceedings collapsed. The scientific evidence remained cogent, the defendant had shown no specific prejudice, and a fair trial remained possible. The claims, including the claim brought for the claimant’s mother, were therefore permitted to proceed.
3. Liability. Intentional unlawful killing constitutes tortious conduct. Under the principles in Brooke v Bool [1928] 2 KB 578, Shah v Gale [2005] EWHC 1087 and Credit Lyonnais v E.C.G.D. [1998] 1 Lloyds Rep 19, a person who acts with others pursuant to a common design to commit a tort is liable as a joint tortfeasor. Mere facilitation is insufficient unless the assistance furthers the common design, and physical presence is unnecessary.
4. The claimant bore the burden of proof and had to establish liability on the balance of probabilities. The seriousness of the allegation required cogent evidence, but did not impose a different standard, consistently with Re D [2008] UKHL 33 and Re B (Children) [2008] UKHL 35.
5. The fingerprint evidence established that the defendant had moved the bombing car between two car parks shortly before the attack. His membership of the IRA and the surrounding circumstances supported the inference that he knowingly participated in the concerted plan. The court found him liable as a joint tortfeasor for the unlawful killing of the claimant’s father.
6. Liability was established. The assessment of damages was remitted to the Master for further directions.

The judgment records that criminal proceedings against the defendant were stayed by Sweeney J on 21 February 2014. The present civil claim was then issued and tried at first instance in the High Court. The judgment does not state a citation for the criminal decision.