A High Court judge recently refused to extend the limitation period for a £100,000-£150,000 damages claim against a local authority over an alleged deprivation of liberty. The Court of Protection team at 39 Essex Chambers explain why.
In AP v Tameside MBC  EWHC 65 (QB) those acting for the claimant sought declaratory relief and damages of between £100,000 and £150,000 for breaches of Articles 5 and 8 for a period of 30 months’ unlawful detention. The claimant was 29 years old and had learning disability resulting from Down’s syndrome, no sight, some hearing loss/noise sensitivity, and little speech. Following allegations of assault he was moved from the family home in to ‘respite accommodation’ (which was not a care home). After 30 months he was returned home on 12 August 2013.
It was not in dispute that the limitation period under the Human Rights Act 1998 s.7 ran from that date, expiring on 13 August 2014, as the alleged deprivation of liberty was a continuing act so time began to run when that act ceased, not when it began. A letter before action was sent on 20 August 2014 and the claim was not brought until 24 February 2016. The issue for the court was whether to exercise its discretion to extend the limitation period under s.7(5) HRA which provides that:
Proceedings under subsection 1(a) must be brought before the end of:
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (emphasis added)
As King J observed, this provision does not identify the factors which the court should take into account. There is no predetermined list, although proportionality will generally be taken into account (para 67). The claimant’s lack of capacity did not create a rebuttable presumption in favour of extending the limitation period absent exceptional circumstances (para 68) and s.28 of the Limitation Act 1980 did not provide any exception by analogy (paras 69-70). Being under a disability lacking capacity and being dependent on others to bring an HRA claim is a factor in the balance and its weight must depend on the particular facts (para 72). His Lordship went on to hold:
73. In my judgment the weight to be given to this ‘dependency’ factor will vary according in particular to when the Claimant first had someone acting on his behalf and looking after his human rights interests, and when that person came into, or was in a position to come into, possession of knowledge of the essential facts, and the expertise held by that person in identifying human rights claims…
74. … the court must take into account that the primary limitation period under the HRA is one year, not three years, and it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are by definition brought against public authorities and there is no public interest in these being burdened by expensive, time consuming and tardy claims brought years after the event.
The court took into account the delay in issuing proceedings, trial prejudice to the local authority, the broad merits and value of the underlying claim, likely injustice to the claimant, but not matters relating to legal aid:
89… The matters relating to the obtaining of legal aid or the time taken to draft pleadings cannot in themselves make it equitable to extend time to the length required in this case. Legal aid matters are ones which in principle should be accommodated within the primary limitation period…
On the facts, the court declined to extend the limitation period so that was the end of the claim.
This decision illustrates the importance of swiftly identifying human rights issues, securing legal aid where available, and if necessary issuing a protective writ to preserve the person’s position. The claim in this case was brought in the civil courts. They can also be brought in the Court of Protection, although this has been challenged in N v ACCG and the Supreme Court’s verdict is awaited. Those representing P are likely to face a greater uphill struggle for limitation extensions where HRA claims are brought within ongoing welfare proceedings. And then there is the statutory charge to contend with. Vindicating P’s human rights is no easy battle in the current climate.
This article was written by the Court of Protection team at 39 Essex Chambers.