Limitation discretion refused

The claimant brought proceedings claiming damages for emotional and psychological damage resulting from sexual abuse committed by a member of staff in an assisted community home. The claimant had been placed in the home in 1975 when he was 12 years old. At a preliminary hearing the Judge decided that the limitation period expired in 2000 and he decided not to exercise his discretion under Section 33 of the Limitation Act 1980. The claimant appealed.

The Court of Appeal held that the issue was essentially a matter of discretion for the Judge. The fundamental question was whether or not, at the end of the day, a fair trial was possible. The evidence of the abuse was uncorroborated; the records at the home had been lost or destroyed and the evidence of the doctor who interviewed the claimant in 1997 would be less cogent because of the delay. At the time the claim was brought, 28 years had passed since the events that gave rise to the claim, and the service of the claim was the first notice the defendants had of the allegations.

It was no answer to say that the prejudice had only been marginally increased by the fact that the claim was made two years after the limitation period had expired. Section 33 was only available in special cases and it was for the claimant to establish that his claim was one of those special cases. The staler the claim the greater the prejudice. The policy of the law on limitation is to permit people and organisations to arrange their affairs on the basis that there came a time when they should not be asked to meet such claims.

While this may seem a reasonable decision on the particular facts, there is no doubt that the comments made by the Court of Appeal will be used by defendants to try to defeat applications under Section 33.

T -v- Boys & Girls Welfare Service. Court of Appeal 21 December 2004.

Court of Appeal allows defendants to reduce payment into court

The defendants who had made a Payment into Court applied to reduce that offer on the basis that they discovered the claimant had received a payment of about £55,000 under the terms of a personal accident insurance policy maintained by the defendant. The District Judge refused. The Circuit Judge allowed the appeal. He considered that if the defendant was refused permission to reduce the offer the injustice could be considerable, whereas the injustice to the claimant in allowing the application was modest. He criticised the District Judge for failing expressly to consider the defendants reasons for making the application.

The claimant appealed to the Court of Appeal but the court dismissed the appeal saying that the approach of the Circuit Judge had been correct and he had been entitled to reach the conclusion that he had. The Circuit Judge had been aware of the dangers of substituting his own decision for that of the District Judge. He had been entitled to conclude that the District Judge had been wrong in so far that she had failed to consider or accord proper weight to a fundamental issue.

Awbery -v- Marley Building Materials Ltd. Court of Appeal 12 January 2005.

Other side should have same documents as judge

The Court of Appeal has made it clear that it is an important general principle that, save in exceptional circumstances, a party should not provide a document to the Judge without the other parties being provided with it, or at least given the opportunity to make representations about it.

The trial was being transcribed by the claimants. At the start of the trial the defendant’s counsel said that he should have a copy if one was to be supplied to the Judge. The Judge had been given copies of the transcript and the defendant had not. It was not until day 17 of the trial that the defendant’s counsel had become aware that the Judge was receiving a copy. When he protested, copies had been supplied in time for him to refer to them in his closing speech.

The Court of Appeal said there was a procedural irregularity. The Judge should not have been provided with a transcript where a party was not provided with one. However the defendants’ appeal failed because the court held that the defendant could not show that he had been adversely affected by the irregularity.

Lloyds Bank Plc & Others -v- Cassidy. 11 January 2005.