MR SARHAD RAFIQ v THURROCK BOROUGH COUNCIL

Time may be extended for a claim under Human Rights Act 1998, section 7(5)(b), only where extension is equitable having regard to all the circumstances. The discretion is broad and must not be replaced by the factors in section 33 of the Limitation Act 1980, although those factors may be relevant. The court should assess the apparent merits, length and explanation of delay, evidential prejudice, prospects of a fair trial, proportionality and the public policy underlying the one-year limit. Delay remains relevant even without proved trial prejudice. A claimant’s apparent merits and the importance of vindicating fundamental rights may favour an extension, but do not outweigh substantial unexplained delay, a prior resolution of the grievance, serious evidential difficulties and disproportionate public expense.

The claimant alleged that the defendant local authority unlawfully withdrew accommodation and support, leaving him street homeless for about a week in 2017, contrary to Articles 3 and 8 of the European Convention on Human Rights. He sought damages under section 7 of the Human Rights Act 1998, but issued his claim more than two years after the events.

The defendant applied to strike out the claim as out of time. The claimant applied for an extension under section 7(5)(b). The central issue was whether, considering the apparent merits, the delay and its explanation, prejudice, fairness and proportionality, it was equitable to permit the late claim.

1. Applications and statutory discretion. The claimant’s application for an extension of time was refused and the defendant’s strike-out application succeeded. Section 7(5)(b) of the Human Rights Act 1998 confers a broad discretion to extend the one-year limitation period where that is equitable, meaning fair to both sides. The court must consider all relevant circumstances and must not treat section 33(3) of the Limitation Act 1980 as a statutory fetter.
2. Merits. On the interlocutory material, there was a prima facie case that the claimant had been made street homeless without proper consideration of whether he could practically return to Iraq without travel documents or money. Applying Limbuela v SSHD [2006] 1 AC 396 and Clue v Birmingham City Council [2011] 1 WLR 99, that gave the claim arguable merit. The merits therefore weighed materially in favour of an extension.
3. Delay and explanation. The delay was more than twice the primary limitation period and had to be examined critically in light of Parliament’s policy favouring swift and economical determination of human-rights claims. The evidence did not establish solicitor negligence or inability to instruct. The more likely explanation was that the claimant’s earlier solicitors had deliberately pursued urgent reinstatement of accommodation and support, after which the grievance appeared to have been resolved.
4. Fair trial and proportionality. The defendant faced material, though incompletely demonstrated, evidential prejudice because witnesses were unavailable and memories had faded. The passage of time also impaired the ability to assess causation and quantum in a multi-factorial and fluctuating mental-health claim. The likely cost of litigating the claim was disproportionate to the additional vindication realistically capable of being achieved, particularly where accommodation and support had promptly been restored.
5. Overall balance. The court adopted and adapted the approach in P v Tameside MBC [2017] 1 WLR 2127. The claimant’s loss of the opportunity to litigate was prejudice inherent in limitation, but refusal of an extension did not produce injustice. It was not equitable to reopen a grievance which the defendant had reasonably understood to have been concluded.

First-instance decision. No prior appellate decision is stated in the judgment.