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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> A v Hoare [2005] EWHC 2161 (QB) (14 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/2161.html Cite as: [2005] EWHC 2161 (QB), [2006] ACD 12 |
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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A |
Claimant |
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Iorworth Hoare |
Defendant |
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Mr. Andrew McLaughlin (instructed by Atkins Public Law Solicitors, Exeter) for the Defendant
Hearing date: 7 October 2005
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Crown Copyright ©
Mr. Justice Jack :
Introduction
The substance of the appeal.
"2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."
"11(1) This section applies to any action for damages, negligence, or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or of any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of the plaintiff or any other person."
Section 38(1) provides that "'personal injuries' include any disease and any impairment of a person's physical or mental condition". The period of limitation where section 11 applies and the injured person does not die is provided by section 11(4) and is three years from the date on which the cause of action accrued – section 11(4)(a), or the date of knowledge, if later, of the person injured – section 11(4)(b). Section 14 provides for the determination of the date of knowledge. The combination of section 11(4)(b) and section 14 may have the effect of extending the period beyond the primary period of three years from date of accrual of cause of action. Section 33 titled 'Discretionary exclusion of time limit for actions in respect of personal injuries or death' provides a second means of extension. It provides for the court to direct that section 11 (or sections 11A or 12) shall not apply if, in accordance with the section, it appears equitable to allow the action to proceed. (There is an equivalent provision allowing an "equitable" extension in cases of defamation and malicious falsehood provided by section 32A).
"6.1. In determination of his civil rights ……. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ……."
"53. The Contracting States properly enjoy a margin of appreciation in deciding how the right of access to court should be circumscribed. It is clear that the United Kingdom legislature has devoted a substantial amount of time and study to the consideration of those questions. Since 1936, there have been four statutes to amend and reform the law of limitation and six official bodies have reviewed aspects of it. The decision of the House of Lords, of which the applicants complain, that a fixed six-year period should apply in cases of intentionally caused personal injury, was not taken arbitrarily, but rather followed from the Tucker Committee upon which the Act had been based.
54. There has been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims, and it is possible that the rules on limitation of actions applying in Member States of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future.
However, since the very essence of the applicants' right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the Court to substitute its own view for that of the State authorities as to what would be the most appropriate policy in this regard.
55. Accordingly, taking into account in particular the legitimate aims served by the rules of limitation in question and the margin of appreciation afforded to States in regulating the right of access to a court, the Court finds that there has been no violation of Article 6(1) of the Convention taken alone. "
The majority of the court found no violation of Article 6, or of Article 14 taken in conjunction with Article 6 or of Article 8.
"They invited the Law Commission to consider the anomaly. It has done so, recommending that claims for personal injuries, including those of child abuse, whether in trespass to the person or in negligence, should be subject to the same core regime of an extendable three year limitation period with discretion to disapply: see Limitation of Actions (Law Com No 270), paras 1.5, 3.156, 3.162, 3.169 and Appendix A, Draft Bill, clauses 1, 2, 12 and 38. For what it is worth, we warmly commend such a proposal. Early statutory implantation of it would obviate much arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit."
This report, covering the whole law of limitation, is the result of the comprehensive review to which the European Court referred in its judgment in Stubbings. Section 12 of the draft bill annexed to the report would give the court a discretionary power, to be exercised in accordance with the provisions of the section, to extend the proposed primary limitation period of 3 years
Section 12 of the Administration of Justice Act 1969