AB & Ors v Leicestershire County Council

In delayed claims for historic personal injury, the discretion under Limitation Act 1980, s 33, requires a broad assessment of all the circumstances and a balance of prejudice. The claimant bears the ultimate burden of showing that it would be equitable to allow the claim to proceed, while the defendant bears the evidential burden of showing that delay has impaired the evidence. The possibility of a fair trial is necessary but not sufficient. No statutory factor has automatic priority. Where limitation and the merits are tried together, the court may assess whether the case is capable of answering before undertaking the s 33 balancing exercise, but should avoid finally determining whether the abuse occurred before that exercise. The assessment is made separately for each cause of action, though sensible grouping may be appropriate.

Three former residents of children’s homes operated by the defendant alleged physical and sexual abuse during the 1980s by Frank Beck, an employee, and Greville Janner. The defendant accepted vicarious liability for abuse facilitated by Beck, but denied that the abuse occurred and pleaded limitation.

Preliminary issues concerning limitation and liability were tried after a contested hearing involving factual and psychiatric evidence. The claimants sought disapplication of the primary three-year limitation period under Limitation Act 1980, s 33. The central issue was whether, having regard to the delay, the evidence and all the circumstances, it would be equitable to allow the claims to proceed.

1. Outcome. The applications under s 33 of the Limitation Act 1980 failed in respect of every claimant and each alleged perpetrator. Judgment was entered for the defendant. The court made no finding whether any claimant had been abused or whether Janner was an abuser.
2. Analytical sequence. The court adopted a three-stage process: first, determine whether the available evidence is capable of raising a case to answer against the relevant alleged perpetrator; secondly, undertake the s 33 balancing exercise without deciding finally whether the abuse occurred; and thirdly, only if limitation is disapplied, determine the substantive allegations on the balance of probabilities.
3. Section 33 principles. The discretion is unfettered and requires a broad balance of prejudice. The claimant bears the ultimate burden, although the evidential burden of demonstrating reduced cogency ordinarily lies on the defendant. The prospects of a fair trial are important, but a fair trial is a necessary rather than sufficient condition. No factor has a priori importance, and the court must assess the statutory factors and all other circumstances without general preconceptions.
4. Application. The very lengthy delay materially impaired the evidence. The deaths of Beck and Janner were relevant, particularly Janner’s, because potentially useful evidence about opportunity, timing and surrounding circumstances could no longer be tested. The absence of contemporaneous complaints did not justify automatic rejection of the claims, especially given the defendant’s admitted inadequacies in recording complaints, but it did not establish that complaints had been made.
5. The reasons advanced for delay, including alleged psychological inhibition and fear of disbelief, did not sufficiently qualify the prejudice. The claims had to be considered separately by claimant and alleged perpetrator, although individual incidents could sensibly be grouped where separate balancing outcomes would be unrealistic.