Cerisola (a child) v. Attorney General for Gibraltar (Gibraltar) [2008] UKPC 18 (6 March 2008)

Privy Council Appeal No 22 of 2007

Angelo Cerisola (a child, by his litigation friend
Maria Cerisola)								Appellant

v.

Her Majesty’s Attorney General for Gibraltar	Respondent

FROM

THE COURT OF APPEAL OF
GIBRALTAR

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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 6th March 2008

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Rodger of Earlsferry
	Lord Carswell
	Lord Mance
	Lord Neuberger of Abbotsbury
	
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[Delivered by Lord Neuberger of Abbotsbury]

1.	This is an appeal brought by Angelo Cerisola against a decision of the Court of Appeal for Gibraltar, upholding the decision of Schofield CJ, that his claim against her Majesty’s Attorney General for Gibraltar was time-barred pursuant to the provisions of the Limitation Ordinance 1960. 

The factual background

2.	The relevant facts are as follows. On 8 January 1995, the appellant, who was then four years old, was walking in the area of the Mediterranean Steps with his twin brother and grandfather, when a rock fall occurred, causing him serious injuries, mainly to his left arm. Soon after the accident, the appellant’s parents consulted solicitors, Attias & Levy (“the solicitors”) who entered into correspondence with Isola & Isola (“Isolas”) solicitors for Sights Management Limited, who were believed to be the managers of the Upper Rock, on behalf of the Government and Gibraltar Tourism Agency Ltd, a company owned by the Government and responsible for tourism on the Upper Rock. 

1.	The claim was notified to Isolas on 24 March 1995, and they replied four days later, stating that they were seeking instructions and denying liability pending those instructions. Nothing then happened until June 1997 when the solicitors again wrote to Isolas. After sporadic reminders from the solicitors, Isolas said that they had been unable to obtain instructions, but they would try again. A month later on 30 January 1998, in a telephone conversation, Isolas  informed the solicitors that they were still without instructions, and the solicitors said that they had obtained a medical report and would revert with general assessments with damages. The solicitors then sent two chasing letters in 1998 and another in January 1999. 

2.	On 25 November 1999 the solicitors wrote to the Ministry for Tourism and Transport directly, intermitting a claim. Sporadic correspondence then ensued with the Ministry and the Attorney General’s chambers, with no apparent result, save that a site meeting took place on 10 July 2003. Things then seem to have lapsed until February 2005, when further sporadic correspondence again proved inconclusive. On 19 September 2005, the solicitors finally issued a claim form against the Attorney General, with the appellant acting through his litigation friend and mother, Maria Elena Cerisola. 

3.	Once service of the proceedings had been effected on the Attorney General, he took the point that they had been issued out of time, as the claim was subject to a three year limitation period. If this contention was justified, it would have disposed of the claim, and accordingly it was sensibly decided that it should be dealt with as a preliminary issue. Both the Chief Justice and the Court of Appeal (where the main judgment was given Stuart-Smith JA, with Staughton P and Kennedy JA agreeing) upheld the Attorney General’s contention that the proceedings were time-barred, as a consequence of which the claim was dismissed. The Court of Appeal granted the appellant permission to appeal, and accordingly the issue now comes before the Board.

4.	Although the appellant raised additional points in the courts below, the issues before the Board involve consideration of three arguments, all of which involve the contention that the Limitation Ordinance 1960, now known as the Limitation Act 1960 (“the 1960 Act”), contravenes the Gibraltar Constitution.

The relevant legislative provisions

5.	Section 4 of the 1960 Act provides that the ordinary period for bringing a claim in tort in Gibraltar is six years, but that where the claim is for personal injuries the period is three years. Section 28 (1) extends the time for bringing a personal injury claim where the claimant under a disability to such time “before the expiration of [three] years from the date when the person ceased to be under a disability”. “Disability” is defined in section 2 (2) as extending to persons who are minors or are suffering from mental disorder.

6.	The crucial provision of the 1960 Act for present purposes is section 28(2)(b) (“section 28(2)(b)”) which provides that section 28 “shall not apply unless…the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent.”

7.	The present appeal turns on whether the so-called custody of a parent rule in section 28(2)(b) contravenes the Gibraltar Constitution, and if so what the consequences are for this case. As at the time that the facts relevant to the present appeal occurred, the Constitution in force was the 1969 Constitution. However, it has since been replaced by the 2006 Constitution (“the Constitution”), which came into force as a result of the Gibraltar Constitution Order 2006 (“the 2006 Order”) on “the appointed day”, in January 2007. Very sensibly, the parties have agreed that this appeal should proceed by reference to the current Constitution. 

8.	Section 8(8) of the Constitution (“section 8(8)”) requires independent and impartial courts to be established “to determine the existence or extent of any civil right or obligation”. It also provides that “where proceedings for such a determination are instituted by any person before such a court…the case shall be given a fair hearing within a reasonable time”.

9.	Section 14 of the Constitution (“section 14”) provides, in sub-section (1) that, subject to certain exceptions, “no law shall make any provision that is discriminatory either of itself or in its effect”. Section 14 (3) defines “discriminatory” as meaning: 

“affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex, creed, property, birth or other status, or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory, whereby persons of one such description are subjected to disability or restrictions to which persons of another such descriptions are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description”. 

Section 14 (4) excludes various laws from the ambit of sub-section (1) including, in para (e), a law: 

“so far as that law makes provision…whereby persons of any such descriptions as is mentioned in subsection (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is consistent with the provisions of the European Convention of Human Rights.”

10.	Section 16 (1) of the Constitution provides: 

“If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.”

11.	Annex 2 to the 2006 Order includes the following paragraph (“paragraph 2”) under the title “Existing Laws”:

“2 (1) …[T]he existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution.”

12.	The three arguments raised by Mr Keith Azopardi, in the course of his excellent oral submissions on behalf of the appellant, are as follows: 

1. The effect of section 28(2)(b) is wrongly to deprive a child in the custody of a parent from access to the courts contrary to section 8(8); 
2. The absence of any statutory mechanism in the 1960 Act to enable the court to extend time in the interest of justice in an appropriate case contravenes section 8(8); 
3. Section 28(2)(b) contravenes section 14(1), as it discriminates indefensibly against children in the custody of a parent. 

These three arguments will be addressed in turn, although much of the reasoning on the first issue applies equally to the second and third issues.

The first argument: section 28(2)(b) infringes section 8(8)
13.	The custody of a parent rule was first introduced into English Law in the Limitation Act 1939, which provided the template for the 1960 Act. The rule was subsequently criticised in various judgments, most notably by Lord Denning MR in Hewer v Bryant [1970] 1 QB 357. As he pointed out:

 “[N]ot everyone…was prepared to be [a plaintiff’s] next friend, especially as a next friend is liable to pay all the costs if he loses. Even the most loving parent might hesitate and a neglectful parent would not bother. No parent was under any duty to bring an action on behalf of his child. … Seeing, therefore, that an infant could not bring an action himself and that no one was under any duty to bring it for him, the law (in its natural solicitude for infants) said that time did not run against an infant until he became of age and was able to bring an action himself. In 1939 Parliament started to encroach on this merciful principle.… Parliament thus showed itself more solicitous for defendants and their insurers than for infants. It still left an infant without any right to bring an action for himself. It put no one under any responsibility to bring an action for him. Yet it barred him from any claim unless he proved that  at the time of the accident he was not ‘in the custody of a parent.’” 

The history of the custody of a parent rule and the criticisms of it are more fully set out in the 20th Report of the Law Reform Committee (1974 Cmnd 5630) at Appendix B and paragraphs 97 to 110. 

14.	The custody of a parent rule, as enshrined in the English Limitation Act 1939 and in the Gibraltar 1960 Act, can also lead to inconsistencies and unfairnesses. Thus, the rule covers grandparents but not aunts and uncles; the rule applies even if the parents are responsible for the injury: the rule applies even where the parents die, say, a day or two after the accident the subject to the potential claim; the rule applies even if the child is abandoned by his parents immediately after the accident, but it does not apply to an orphaned child who is adopted immediately after the act.

15.	For these reasons (among others), the 1974 Report recommended that the custody of a parent rule should be abolished, and that recommendation was duly adopted when the English limitation law was re-codified in the Limitation Act 1980. However (although amendments may have been made from time to time), the law of Gibraltar relating to limitation has not been re-codified since the 1960 Act, and in particular the provisions of section 28(2)(b) remain in force. 

16.	Of course, the fact that the law of Gibraltar has not followed the law of England does not mean that it is ipso facto open to attack or inconsistent with the Constitution (see e.g. Attorney General for Gibraltar v Shimidzu [2005] UKPC 26; [2005] 1 WLR 3335). Furthermore the inclusion of some sort of custody of a parent rule is not, Mr Azopardi accepts, inherently objectionable. He would not, for instance, contend that a custody of a parent rule which included a provision that it was to only apply in circumstances where it would not be unfair, was objectionable. In their Lordships’ view this concession must be correct. What Mr Azopardi criticises is the blunt nature, and crude and potentially unfair consequences, of section 28(2)(b). In their Lordships’ opinion, Mr Azopardi’s analysis is correct as a matter of general principle.

17.	As pointed out in para 17 of the Report of the Committee on Limitation of Actions in Cases of Personal Injuries (1962 Cmnd 1829), cited in the 1974 Report at para. 23, the general purpose of limitation provisions is “to protect  defendants from being vexed by stale claims”, “to encourage plaintiffs not to go to sleep on their rights”, and “to ensure that a person may with confidence feel that after a given time he may treat as being finally closed an incident which might have led to a claim against him”. (See also Todd v Davison [1972] AC 392 at p411 to the same effect). This principle was also accepted by the European Court of Human Rights (“ECtHR”), when considering the issue of access to the courts under article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) in Stubbings v UK (1996) 23 ECHR 213 at paras 50 and 51. 

18.	In other words, as in so many other areas of law, limitation provisions have to balance the rights and interests of both plaintiffs and defendants, and it is a mistake to concentrate on the rights and interests of only one of those two classes when considering the justice of a particular provision. Without some custody of a child provision, a potential defendant who happens to injure a young child is potentially substantially worse off than one who injures an adult. Further, if a child has a right to bring proceedings before coming of age through a litigation friend, and it is very common, and would be expected frequently to be the case, that a child in the custody of a parent would take advantage of that right. Including some custody of a parent rule in a statutory limitation code would therefore not be objectionable under section 8(8). 

19.	The fact that the rule is not included in the limitation legislation of many, or even all, contracting parties to the Convention does not mean that it would infringe article 6 of the Convention, the equivalent to section 8(8). The ECtHR has recognised that different countries will and can have different rules governing limitation of actions, and that a relatively wide margin of appreciation should be allowed in that connection, provided, of course, that there is a real and practical opportunity of access to the courts to adjudicate a potential claim. Thus, in Ashingdane v UK (1985) 7 EHRR 528, at para 57, the ECtHR accepted that limitation rules “may vary in time and in place according to the needs and resources of the community and of individuals” (a view reflected in its later decision in Stubbings at paras 50 and 51). Accordingly, as the court went on to say in Ashingdane, provided that it does not impair “the very essence of the right [of access to the courts]” and that it “pursue[s] a legitimate aim”, which satisfies the requirement of proportionality, a limitation provision will not be struck down.

20.	Their Lordships readily accept that there will almost certainly be circumstances in which the application of section 28(2)(b) to a particular claim would result in unfairness sufficient to give rise to the breach of the claimant’s right of access to the court pursuant to section 8(8). There may be dangers in generalising, as each case will turn on its own particular facts, but it would seem likely that section 8(8) would be infringed if a claimant was prevented from bringing an action by the custody of a parent rule in circumstances where the parent had been responsible for the injury, or in circumstances where the parent had died or become incapacitated as a result of the very accident giving rise to the claimant’s potential claim, and the child was not in the care of another parent or a grandparent. Just as there may be special facts which would not render the application of section 28(2)(b) unfair even in such circumstances, so, it should be emphasised, there may be many other circumstances in which application of the section would be unfair.

21.	However, the problem faced by the appellant is that the application of the custody of a parent rule in section 28(2)(b) in this particular case is not unfair. Indeed once it is accepted, as it has been and as it must be, that the imposition of a custody of a parent rule can be justified in principle, then it seems to their Lordships that, if it cannot be justified on the facts of the present case, it is very hard to see in what circumstances it could be justified. 

22.	The appellant was in the custody of both his parents at the time of the accident and during the whole of the three subsequent years; his parents appreciated immediately that the appellant had suffered serious injury; his parents also realised immediately that it would be appropriate to instruct solicitors on his behalf; his parents were prepared to instruct solicitors in that connection; his parents did instruct solicitors; the solicitors accepted those instructions; indeed, the solicitors acted on those instructions. The only thing that went wrong is that the solicitors apparently failed to appreciate the existence of the limitation period, and therefore failed to advise the issue of proceedings within the three year limitation period, or to ensure that such proceedings were issued. If, as Mr Azopardi rightly accepts, the custody of a parent rule can be justified in some circumstances, it seems to their Lordships that there cannot be any objection to it being applied in this case.

23.	In these circumstances, the only way in which the appellant can succeed on his first argument is either to contend that, because application of section 28(2)(b) may (indeed, as their Lordships accept, will) infringe section 8(8) in some circumstances, it must be disapplied in all circumstances, or alternatively to contend that section 28(2)(b) should be so re-fashioned by the court as to permit the present claim to succeed. 

24.	In their Lordships’ view, neither of those arguments can be right. Where, as in the present case, the application of section 28(2)(b) does not result in any unconstitutional deprivation of access to the courts, then application of the provision in question does not conflict with section 8(8). Where, however, the facts are such that application of section 28(2)(b) would infringe section 8(8), then, by virtue of paragraph 2, it would be necessary for the court to impose appropriate “modifications, adaptations, qualifications [or] exceptions” on section 28(2)(b) so as to enable it to comply with section 8(8).

25.	The notion that one should consider whether a Constitutional right has been infringed by reference to the facts of the particular case is supported by the words “in relation to him” in section 16(1) of the Constitution. It is also consistent with the jurisprudence of the ECtHR, which establishes that, at least in a case where complaint is not against the principle of the law under attack, but against its terms or its application, one should look at the facts of the particular case. Thus, as already mentioned, in para 59 of its judgment in Ashingdane, the ECtHR said limitation provisions “may vary in time and in place according to the needs and resources of the community and of individuals” (emphasis added). Their Lordships were also referred to para 36 of the EctHR’s judgment in James v The United Kingdom (1986) 8 EHRR 123, which related to article 1 of the first protocol to the Convention, where the court emphasised “the principle that, without losing sight of the general context of the case, it must, in proceedings originating in an individual application, confine its intention, as far as possible, to the concrete case.” 

26.	The fact-sensitive nature of the enquiry in cases involving alleged breaches of article 6 of the Convention, the equivalent for present purposes of section 8(8), was also emphasised by the Board in Brown v Stott [2003] 1 AC 681 at 704 E to F (and also by the House of Lords in R v Spear [2003] 1 AC 734  at para. 66).

27.	It is true that, in the James case itself, the ECtHR in its judgment considered whether the legislation as a whole contravened the Convention. However, that was not a case concerned with article 6 of the Convention, and, more importantly, as consideration of the issues identified in para. 34 of the judgment show, the applicants in that case were attacking the whole basis of the legislation concerned (the Leasehold Reform Act 1967), not its application on the facts of the particular case. Here, however, as already mentioned, the appellant has quite rightly not attacked the propriety of a custody of the parent rule, merely the blanket effect of section 28(2)(b). 

28.	It is right to add that, even if their Lordships were persuaded that it was appropriate to apply paragraph 2 in every case where the defendant relies on section 28(2)(b), it would not have assisted the appellant in the present case. In effect, such an approach in this case would merely involve arriving at the same result as that indicated in the preceding paragraphs by a slightly different, and more cumbersome, route. The application of paragraph 2 to section 28(2)(b) must, as their Lordships see it, be effected by reference to the facts of a particular case. It would seem unnecessarily hypothetical and quite unrealistic if paragraph 2 was to be applied to a provision such as section 28(2)(b) in a particular case, without reference, indeed close reference, to the specific facts of that case. On that basis, essentially for the reasons already given, application of paragraph 2 would not avail the appellant in the present case, as no “modifications, adaptations, qualifications or exceptions”  need to be applied to section 28(2)(b). That is because, on the facts of this particular case as summarised in para 24 above, reliance on section 28(2)(b) would not infringe the rights of the appellant under section 8(8). 

29.	Before leaving this first ground, their Lordships would add that another way of reaching this conclusion may be to focus on the real reason for the appellant being barred from proceeding with his claim. The direct cause was not really the effect of section 28(2)(b), but the unfortunate failure of the solicitors to appreciate the existence of the  three year limitation period so that the proceedings were not started in time. Of course, if it were not for section 28(2)(b), the appellant’s claim would not be time-barred; however, it would be a little surprising if the appellant could invoke the  alleged unconstitutionality of that provision on the ground that it prevented him having access to the courts, when the real reason for him being barred from access is the solicitors’ oversight.

The second and third grounds: discretion and section 14

30.	As to the second ground of appeal, the appellant contends that the absence of any provisions in the 1960 Act which gives the court discretion, in appropriate circumstances, to allow claims to be bought out of time represents an infringement of section 8(8). Section 33 of the English Limitation Act 1980 gives the court discretion to permit a claim for personal injuries to proceed, even where it has been began outside the three year limitation period. In exercising its discretion, the court is required to take into account the facts and matters of sub-section (3) of that section. The Gibraltar Limitation Act 1960 has no equivalent provision, although sections 5 to 7 do enable, indeed require, the court to extend time in circumstances where “material facts relating to [the] cause of action” were “at all times outside the knowledge (actual or constructive)” of the potential claimant. 

31.	Their Lordships are prepared to accept, without deciding, that there could be cases where the application of a strict statutory time bar, which was generally unexceptionable, could, on the unusual facts of a particular case, operate so unfairly as to represent a breach of section 8(8). If that is right, then, in such a case, the provisions of paragraph 2 would come into play.

32.	The problem for the appellant in the present case is that, for the reasons already given, the application of section 28(2)(b) of the 1960 Act to his claim does not represent on the particular facts of this case, an infringement of his rights under section 8(8). In those circumstances, essentially for the same reasons for rejecting his case on the first issue, their Lordships would reject his case on the second issue.

33.	That leaves the third issue. There was some debate whether the rights under section 14 were free-standing or whether, as with the rights granted under article 14 of the Convention, some other right under the Constitution must also be engaged. It is unnecessary to decide that point in this case, because on any view, another right is engaged, namely that contained in section 8(8). (In this connection, the fact that a claim under article 14 of the Convention has to engage a right under one of the other articles does not mean that a breach of one of the other articles has to be established: otherwise, article 14 would be a dead letter.)

34.	It is right to say, however, that, at least on the basis of the arguments advanced, their Lordships incline to the view that, unlike article 14 of the Convention, the right against discrimination in section 14 is free-standing. That appears to be the natural meaning of section 14 (1), and, despite the Attorney General’s argument to the contrary, there does not appear to be anything elsewhere in the Constitution to call that conclusion into question.

35.	Reverting to the third issue, the Attorney General rightly accepts that section 14(3) enables section 14(1) to be potentially engaged where children in the custody of a parent are differently treated from children not in the custody of a parent. However, he relies on a passage in a judgment of the ECtHR, in relation to article 14 of the Convention, namely that “the principle of equality of treatment is violated if the distinction [in treatment] has no objective and reasonable justification” – see Belgian Linguistic Case (1969) 1 EHRR 252 at para. 10. The passage continues:

“The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment …. must not only pursue a legitimate aim; article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.” 

36.	This approach is applicable to allegations of infringement of section 14(1), in the light of section 14(4)(e). In their Lordships’ opinion, the contention that section 14 is infringed in the present case should be rejected for similar reasons for rejecting the appellant’s case on the first and second issues. The acceptability of the custody of a parent rule in principle applies to an allegation of infringement of section 14, just as much as to a claim under section 8(8). There is a difference between a child in the custody of a parent or grandparent and a child not in such custody, and, although there could be cases where, on the particular facts, it could represent unjustifiable discrimination if a child in the custody of a parent was barred from bringing proceedings, that is not the position on the facts of the present case, as summarised in para 24 above.

Disposition

37.	For these reasons, their Lordships will humbly advise Her Majesty that this appeal should be dismissed. The parties have agreed that there should be no order for costs.