M (a minor by his litigation friend LT) v Ministry of Justice [2009] EWCA Civ 419, [2009] All ER (D) 44 (Jun)
Court of Appeal, Civil Division, Lord Neuberger, Rix LJ and Bennett J, 29 Jan 2009
Section 7(5) of the Human Rights Act 1998 (HRA 1998) is to be viewed as an ordinary limitation defence; the burden is on the claimant to bring himself within the section.
Stephen Simblet (instructed by Jackson & Canter) for the claimant, Jeremy Roussak (instructed by the Treasury Solicitor) for the Secretary of State.
The claimant was the son of a man who committed suicide in prison in October 2003. The claimant brought a claim by his litigation friend against the defendant, under arts 2 and/or 8 of the European Convention on Human Rights. Proceedings were not issued until September 2007, almost four years after the death.
The time limit for bringing such s 7 proceedings under HRA 1998 was one year or such longer period as the court might consider equitable having regard to all the circumstances. The issue accordingly arose as to whether the claim was timebarred, as asserted in the defence. The claimant submitted that the time limit in s 7(5) of HRA 1998 was part of a jurisdictional package which went to the jurisdiction of the court.
Therefore, he submitted, the defendant’s time-bar point had to be brought by operating the procedure under CPR Pt 11, whereby a defendant sought to challenge the jurisdiction of the court, and could not be done by pleading a defence as the defendant had in the instant case. The judge held, inter alia, that the delay in bringing the action was likely to be prejudicial to the defendant. He dismissed the claim and the claimant appealed.
Rix LJ:
His lordship considered, inter alia, Dunn v Parole Board [2008] All ER (D) 222 (Apr). The claimant accepted that that decision was binding if s 7(5) was to be viewed as an ordinary limitation defence. He submitted that it was not, for two reasons. First, that s 7(5) was part of a clause which in general initiated a new jurisdiction in the court, and the other, in support of that basic submission, was by reference to comparing the precise language of s 7(5) with language in LA 1980 where the provisions were, of course, accepted to be limitation provisions. Thus the claimant stressed that the words in s 7(5) were that proceedings “must be brought” and he compared that with the language of s 2 of LA 1980: “An action founded on tort shall not be brought after…”
Jurisdiction
His lordship did not accept those submissions. The jurisdiction of the court was granted by s 7(1), without which, admittedly, the court would not have jurisdiction for such proceedings. But subsection (5) was a limitation defence in the ordinary sense of that term. There was no difference, other than a slight difference in language, between saying that proceedings “must be brought” and saying that an action “must not be brought before the end of ”, and the wording in LA 1980 of an action which “shall not be brought after”. It was just two different ways of saying the same thing. That was emphasised strongly by the concluding words of s 7(5), which were that “that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”
That was a direct reference to the possibility of LA 1980 time limits being stricter than the time limits imposed under s 7(5) itself. It was to be noted that the expression “time limits” was the basic word used to describe limitation in s 1 of the LA 1980 itself.
Thus s 7(5) of HRA 1998 itself recognised by that language that it was dealing with a time limit just like any Limitation Act time limit and recognised also that a Limitation Act time limit might be stricter than a time limit imposed by s 7(5) itself.
Rejection
Therefore his lordship rejected the first ground of appeal to the effect that the defendants had failed to take a jurisdictional point in time. There was no jurisdictional point. It also followed that there was nothing in the distinction between s 7(5) limitation and limitation in LA 1980 to raise a critical interpretative difference of approach for the court.
In that connection the claimant also submitted that there was an overall difference in language which should suggest that the court considering a question of discretion under s 7(5)(b) should regard the claimant’s onus (to show that his claim out of time would be an equitable one to allow to proceed) as being easier to meet than in the context, for instance, of LA 1980, where the discretionary provisions in s 33 and suchlike had to be applied on the basis that, until discretion was exercised in favour of a claimant there was a Limitation Act defence.
Language
His lordship held that there was a difference in language but the burden remained on the claimant to bring himself within s 7(5)(b), and that being the case, the burden had to be the normal burden of someone who wished to persuade the court to adopt an approach to its discretion which he was advocating. The judge, of course, had to balance all the factors which were in play in the light of all the circumstances of the case. The burden was that of the ordinary civil burden of proof where matters of fact were in issue and otherwise it was a burden of persuasion.
Persuasion
Quite how the burden of persuasion was discharged by a claimant ultimately depended not upon the particular form of the statute in question but upon the nature of the factors in play before the court.
His lordship went on to dismiss the appeal on the facts..Lord Neuberger and Bennett J agreed.
