TA v Westminster City Council & Anor

Under section 33 of the Limitation Act 1980, the court must balance the claimant’s prejudice against the defendant’s prejudice, having regard to all the circumstances and the statutory factors. The central question is whether a fair trial remains possible.

Very substantial delay is not determinative by itself. However, the absence of key witnesses and documents, impaired recollection, evidential inconsistency, unavailable expert evidence and difficult medical causation may together establish overwhelming prejudice. The claimant bears the ultimate burden of showing that it would be equitable to disapply the limitation period, while the defendant bears the evidential burden of demonstrating that delay has reduced evidential cogency. Serious historic abuse does not, without more, justify allowing a stale claim to proceed.

The claimant brought two negligence claims against Westminster City Council and the London Borough of Lambeth concerning alleged abuse and neglect during childhood. One claim concerned his placement with his mother under a care order and later supervision order. The other concerned his placement at Fairways Children’s Home, where he alleged physical and sexual abuse and failures by Lambeth to respond to complaints.

The claims were issued approximately 36 years after expiry of the limitation period. At a preliminary hearing, the court considered whether limitation should be disapplied under section 33 of the Limitation Act 1980, focusing on delay, evidential cogency, disability and the possibility of a fair trial.

1. Outcome. The court refused to disapply the limitation period under section 33 of the Limitation Act 1980. It was not equitable to allow either claim to proceed.
2. The court applied the principles summarised in Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 1992. Section 33 gives an unfettered discretion, but the claimant bears the ultimate burden of showing that the balance of prejudice favours disapplication. The defendant bears the evidential burden of showing that delay has made the evidence less cogent.
3. The length of delay was exceptionally substantial. The court considered the reasons advanced by the claimant, including psychiatric problems, memory suppression, drug use and the triggering effect of the IICSA Report. These matters were relevant but did not establish that the claimant had been disabled from investigating or bringing proceedings. Section 33(3)(d) was therefore of little relevance on the evidence.
4. The decisive issue was trial fairness. Key witnesses, including the relevant social workers, were unavailable or probably deceased. Important documents, including the supervision order, court records, risk assessments and police reports, were missing. The claimant’s evidence contained inconsistencies and depended on recollection of events occurring when he was a young child. The defendants could not obtain expert evidence concerning social-work practices at the time, and medical causation would be difficult to determine.
5. The claimant’s prejudice from being unable to pursue allegations of serious abuse was substantial. Nevertheless, the defendants’ prejudice was materially greater. The court held that a fair trial was not possible and that the claims should not proceed.