The High Court recently dismissed an application for damages under the Human Rights Act 1998, which had been commenced outside the statutory limitation period. Emelia Bezant-Gahan and Tom Lambourne report on the outcome of a claim that a council had unlawfully made the claimant street homeless.
In Rafiq v Thurrock Borough Council  EWHC 584 (QB) the claimant, Mr Rafiq, a Kurdish Iraqi immigrant, was refused asylum in August 2016 and, after an unsuccessful appeal, became 'appeal rights exhausted' in May 2017.
After he failed Thurrock’s Human Rights review process, the defendant council decided that the claimant would be given a final weekly allowance, and a travel warrant to go to the Home Office and apply for residual support before returning to Iraq.
The claimant was later told that the necessary referral from the council had not gone ahead. As a result, he became street homeless for a period of one week. On 15 August 2017, the claimant’s solicitors sent the defendant a pre-action letter, challenging the decision to evict the claimant. The council then reinstated accommodation and support.
Over two years later, the claimant’s newly instructed solicitors advised him he could have a claim for damages against the council for making him street homeless. They corresponded with the defendant and filed a money claim at the County Court on 18 November 2019. It was issued 6 days later.
Over the course of the following year, time for service of particulars of claim was extended. The defendant then made an application for the claim to be struck out on the grounds of limitation on 7 October 2020. The defendant filed a defence on 20 January 2021, pleading a breach of the statutory limitation period. The claimant made an application for an extension of time for limitation on 8 February 2021.
The opposing applications both turned on the single issue of timing.
The claimant’s claim against the defendant concerned breaches of Article 3 and Article 8 of the Human Rights Act (the Act).
Section 7(5) of the Act provides:
Proceedings under subsection (1)(a) must be brought before the end of—
(i) the period of one year beginning with the date on which the act complained of took place; or
(ii) such longer period as the court or tribunal considers equitable having regard to all the circumstances
The discretion referred to at 7(5) is case specific and was considered in P v Tameside MBC  1 WLR 2127. At paragraph 67 of this judgment the Court held that claims brought under the Act should be dealt with both swiftly and economically.
The High Court in Alseran & Ors (Iraqi Civilian Litigation) v MoD  EWHC 3289 (QB) also considered this point and held that 'evidential prejudice' to a defendant, where delay means that witnesses cannot be traced or memories have faded, may militate against the fairness of granting an extension. The findings of the Rafiq case built upon the decision in Alseran and found as follows:
Analysis and findings
- Mrs Justice Collins Rice accepted that there was a prima facie case that Mr Rafiq was rendered street homeless by the withdrawal of support and accommodation by the council.
- Mrs Justice Collins Rice considered the delay to be extensive in the circumstances. The application for an extension of time was not brought until February 2021, well over a further year later, months after limitation had been pleaded by the council, and more than 2½ years after the expiry of the primary limitation period.
- The claimant claimed that he did not realise, until he approached his current solicitors about a different matter, that he might have a damages claim. Upon consideration of the facts presented, Mrs Justice Collins Rice did not accept solicitor negligence or inability to instruct at the time as good explanations for the delay for the reasons given. Upon application of P v Tameside, Mrs Justice Collins Rice concluded that the delay in this case was ‘’considerable’’ as it was well over double the primary limitation period set by Parliament.
- The defendant, relying upon Alseran, argued that it would suffer substantial evidential prejudice in defending this claim as key witnesses from whom may it have taken statements from were no longer in employment. Mrs Justice Collins Rice took into account that witnesses simply having left the defendant’s employment was not a particularly weighty reason for not obtaining evidence. However, she did give weight to the fact that the defendant would face the prospect of significant adverse inferences being drawn from the relatively scant disclosure, and the ability to address that with witness evidence may be compromised to at least some degree.
- With regards to the medical evidence, Mrs Justice Collins Rice gave significant weight to what was likely to be the prohibitive difficulty for the council in obtaining robust medical evidence now on the question of the impact of the homelessness on Mr Rafiq’s health.
- Mrs Justice Collins Rice found that the defendant would experience significant evidential prejudice as a result of the delay, and this outweighed the strength of any equity in favour of granting the applicant's claim for damages. The defendant’s application to strike out the claim therefore succeeded.
The findings demonstrate that the Court is willing, in certain circumstances, to choose not to exercise discretion in extending the limitation period for claims brought under the Act. In instances where the prejudice likely to be suffered by the defendant is severe owing to an omission on the claimant’s part, as in this case, a defendant may be successful in applying for the claim to be struck out on the limitation point alone.
Had the claimant advanced a claim for damages earlier and made the application for extension earlier it is possible that the Court may have found differently. This is a point to be mindful of in cases where practitioners consider that the claimant has unreasonably delayed the process as it could be raised in an application to strike out on the grounds of limitation at a later date once proceedings are issued.
A careful case by case analysis will need to be undertaken by practitioners as to the likely prejudice that will be caused by any delay on the claimant in issuing and set out in any application to strike out the claim. It may not be enough simply to say that the matter is brought out of time, real prejudice will need to be demonstrated and any strike out application will be highly fact specific.
This decision may also lead to a stricter timetable being kept by claimant practitioners given the inability to rely on the Court finding their application for an extension to be just and equitable in the circumstances. Defendant practitioners may find themselves at risk of claims being issued early if pre-litigation responses are not provided within the timeframe set out by the claimant at the outset. Given the increased costs exposure of proceedings being issued it will be a point to watch closely for defendants. It is clear that the Courts do, and indeed should, consider that access to justice and for claimants is extremely important. However, for defendant practitioners everywhere this will no doubt be a welcomed decision. The court has acknowledged and reinforced the principles in Alseran that access to justice for the claimant should not come at the cost of severe prejudice to the defendant.
This is a particularly interesting area of law at the present time given the potential for the Act to be repealed and replaced with a Bill of Rights following the United Kingdom’s withdrawal from the European Union.
How this develops - only time will tell.
Emelia Bezant-Gahan is a Solicitor and Tom Lambourne is a Trainee Solicitor at Plexus Legal.