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Cite as: [2011] ECHR 722
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
16261/08
by Iorworth HOARE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 12 April 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana
Mijović,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Ledi
Bianku,
Vincent
A. de Gaetano, judges,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 7 March 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Iorworth Hoare, is a British national who was born in 1952 and lives in Newcastle upon Tyne. He is represented before the Court by Mr J. Atkins, a lawyer practising in Exeter.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
In 1989, the applicant was convicted of attempted rape which had taken place on 22 February 1988. Given his history as a serial sexual offender, he was sentenced to life imprisonment. His seven-year tariff expired in March 1995 and he was released on life licence on 31 March 2005.
In 2004, while on day release from that sentence, the applicant purchased a ticket for the National Lottery. He won a sum in the region of GBP 7 million.
The news reached the victim of the 1988 rape, a Mrs A. She had been unable to sue the applicant for damages at the time of the offence because he was impecunious. She had, however, received a sum in the region of GBP 5,000 in compensation from the Criminal Injuries Compensation Board.
Upon hearing the news, Mrs A proceeded to seek damages against the applicant for trespass to the person.
2. The High Court proceedings
On 22 December 2004, Mrs A issued her claim form seeking damages. The applicant sought legal advice from his solicitors and Counsel.
His barrister, a Queen’s Counsel, warned the applicant that there was a risk of his losing, as in any litigation. Given the well-established case-law on the matter, as explained by his legal representatives, however, the applicant felt that he could rely on the certainty of the law in this area to pursue his defence that Mrs A’s claim was time-barred.
Accordingly, on an unspecified date, the applicant rejected an offer made by Mrs A to settle the action for a sum in the region of GBP 25,000.
On 14 June 2005 Mrs A’s action was struck out by Master Eyre on the ground that it was time-barred pursuant to section 2 of the Limitation Act 1980 (“the 1980 Act”). The general rule, contained in section 2 of the 1980 Act, was that the period of limitation for an action in tort was six years from the date on which the cause of action accrued (see paragraph 38 below). In Mrs A’s case, the cause of action had arisen 16 years before the issue of the claim form and so was time-barred.
On an unspecified date, Mrs A was granted leave to appeal.
Before the High Court judge, the argument focused on the question whether Mrs A’s action was one to which section 2 or section 11 of the 1980 Act applied. Section 11 of the 1980 Act, upon which Mrs A sought to rely, covered actions for damages based on negligence, nuisance or breach of duty where the damages were in respect of personal injuries (see paragraph 39 below). The limitation period for such actions was three years, either from the date on which the cause of action accrued or the date of knowledge of the person injured, as defined in section 14 of the 1980 Act. In addition, section 33 of the 1980 Act gave the court a discretion to extend that three-year period when it appeared that it would be equitable to do so (see paragraph 40 below). It was the applicant’s case that section 2 applied and was a bar to Mrs A’s claim.
On 14 October 2005 Jack J sitting in the High Court dismissed Mrs A’s appeal. He concluded that, following the House of Lords decision in Stubbings v Webb [1993] AC 498, Mrs A’s claim was covered by section 2 of the 1980 Act rather than section 11.
In his judgment, Jack J recalled that the House of Lords in Stubbings had held that claims for injuries arising from complaints of deliberate assault or trespass to the person, such as Mrs A’s, were subject to the non extendable six-year limitation period imposed by section 2. As regards the meaning of the words “breach of duty” contained in section 11, he noted that in his speech, Lord Griffiths had held that these words were not to be construed as including actions based on intentionally inflicted injuries, such as rape or indecent assault.
Jack J further rejected Mrs A’s contention that her right of access to court contained in Article 6 § 1 of the Convention had been breached. In particular, he relied on the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, Reports of Judgments and Decisions 1996 IV, in which a majority had found no violation of Article 6 on the ground that the limitation period contained in section 2 of the 1980 Act, as interpreted by the House of Lords, constituted a proportionate restriction on the right of access to court.
Finally, Jack J referred to the comprehensive review of the law of limitation carried out by the Law Commission and laid before Parliament in July 2001: Limitation of Actions (Law Com No 270) (see paragraphs 52-53 below). He noted however that:
“20. The Law Commission’s Report has not yet been implemented. I have no information as to what the Government’s intentions may be. There is a hint in paragraph 54 of the European Court’s judgment in Stubbings that, if Member States - that is primarily their legislatures, do not act, the European Court would at a later date take a second look at the issue with possibly a different outcome. If that moment arrived for the European Court, a national court considering the issue would be in no different position. On this analysis the issue for me is whether that moment has arrived. I do not consider that the passage of four years since the Report is so long a period that what was within the ‘margin of appreciation’ has ceased to be so.”
Accordingly, Jack J ordered that Mrs A should pay the applicant’s costs in defending Mrs A’s appeal. Mrs A appealed.
3. The Court of Appeal proceedings
In February 2006, the Court of Appeal heard Mrs A’s appeal together with two other appeals, namely H v Suffolk County Council and X and Y v Wandsworth Borough Council, which both concerned schoolboys who had been sexually abused by their teachers. The common feature of these appeals was that the claim in each case had been brought more than six years after the sexual abuse in question (or, in H and X and Y, after the schoolboys who had been abused had reached the age of 18).
In its judgment of 12 April 2006, the Court of Appeal dismissed all the appeals. The Court of Appeal began with a detailed review of the background to the 1980 Act; it examined both the respective decisions of the House of Lords and the Court in Stubbings as well as subsequent cases. As to the Law Commission’s report on the law of limitation of 2001, the Court of Appeal observed that:
“6. ...The remedy has now been in Parliament’s hands for nearly five years following a comprehensive law reform study conducted at considerable public expense. Although the Commission’s recommendations would not have affected cases in which the defendant already possessed an accrued limitation defence under existing legislation, justice would be far more simply achieved in claims like this in future if Parliament were to simplify the law along the lines the Commission recommended. In the meantime, the House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot.”
As to the argument that Stubbings v Webb had been wrongly decided by the House of Lords, the Court of Appeal held that it was bound by that decision of the House. The Court of Appeal noted however that both the cases decided since Stubbings v Webb and the detailed analysis of the Law Commission in its comprehensive 2001 report pointed to some very unsatisfactory features of the law as it applied to sexual abuse cases (at paragraphs 39-41 of the judgment).
The Court of Appeal further held, after a detailed examination of the relevant authorities, that because the six-year limitation period had expired before the Human Rights Act (“HRA”) came into force appellants could not rely on the provisions of that Act for assistance (at paragraphs 42-65 of the judgment).
As for the application of the law to Mrs A’s appeal, the Court of Appeal held, per Sir Anthony Clarke MR:
“118. If Parliament enacted the Law Commission’s proposals, the court would have a discretion to override the primary limitation period. How it would exercise its discretion would of course depend upon all the circumstances of the case and we express no view upon how it would be exercised on the facts of this case. Like the judge, we were not asked to do so. As it is, we are bound by the decision in Stubbings v Webb to hold that the claim is statute barred, and for the reasons we have set out in paras 42 to 65 above the HRA cannot come to A’s assistance because the defendant possessed an accrued right to a limitation defence long before the HRA became law. For these reasons we must dismiss A’s appeal.”
In the event, the Court of Appeal ordered that Mrs A should pay the applicant’s costs of the appeal and that she be allowed to appeal to the House of Lords.
4. The House of Lords judgment of 30 January 2008
In the House of Lords, Mrs A’s appeal was joined with five other appeals which concerned the alleged sexual abuse of children/young persons by members of staff at schools which were managed by the local council. One of the appeals, Young v Catholic Care (Diocese of Leeds) and the Home Office, also involved allegations of sexual abuse by a member of staff in a detention centre operated by the Home Office. The appeals were heard on 1, 5, 6, and 7 November 2007.
The six conjoined appeals all raised the question whether claims for sexual assaults and abuse which took place many years before the commencement of proceedings were barred by the 1980 Act. The appeal in Young also raised an issue under section 14 of the 1980 Act which deals with the date of knowledge and what knowledge may or may not be attributed to a claimant.
In a unanimous judgment which was delivered on 30 January 2008, their Lordships concluded that section 11 of the 1980 Act, which traditionally applied to negligence and breach of duty actions, also applied to actions arising out of intentional torts where personal injuries were sustained. Accordingly, all the appeals were allowed.
Lord Hoffman, with whom all the other Law Lords agreed, gave the leading speech, explaining why the House should depart from its earlier case-law in Stubbings v Webb. After having given a detailed account of the history of the 1980 Act, he went on to note that, although Stubbings v Webb had not given rise to too much difficulty at first, the position had radically been changed with the House of Lords decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. In that case, their Lordships had decided that sexual abuse was not necessarily outside the scope of an employment. After that, a considerable number of claims had been brought against the operators of schools, detention centres and the like for sexual abuse by employees. This, in the words of Lord Hoffman, “threw into relief the anomalies created by Stubbings”.
His Lordship referred in particular to the case of S v W (Child Abuse: Damages) [1995] 1 FLR 862, a pre-Lister case, in which the plaintiff had sued her father and mother for sexual abuse by the father. The action had been commenced nearly 10 years after the last act of abuse. As the cause of action against the father was intentional assault, the claim had been struck out. The cause of action against the mother was negligent failure to protect the plaintiff against the father. As this fell under section 11 of the 1980 Act and was subject to a discretionary extension under section 33, which had been granted by the judge and affirmed by the Court of Appeal, the action against the mother had been allowed to proceed. Lord Hoffman recorded the court’s finding, per Sir Ralph Gibson at p.867, that the result was “illogical and surprising” and deserving of the attention of the Law Commission.
Indeed, Lord Hoffman went on to note that:
“24. The matter was considered by the Law Commission as part of a comprehensive review of the law of limitation of actions which was presented to Parliament in 2001: Limitation of Actions (2001) (Law Com No 270). The effect of Stubbings was described as anomalous, with particular reference to S v W (Child Abuse: Damages) [1995] 1 FLR 862: see para 1.5 of the Report. The Commission recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person: see the summary at para 1.14. There has not yet been any implementing legislation, possibly because the Commission’s recommendations were not confined to the Stubbings anomaly but proposed a completely new law of limitation of actions.”
Lord Hoffman concluded:
“25. Lord Reid’s observation [1972] AC 944, 966 that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of Stubbings. Claimants who have suffered sexual abuse but need to seek the discretion of the court under section 33 are driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which can be brought within the language of section 11. Thus, in addition to having to decide whether the claimant was sexually abused, the courts must decide whether this was the result of ‘systemic negligence’ on the part of the abuser’s employer or the negligence of some other person for whom the employer is responsible. In the appeals before the House, the appellants put forward at least four alternative theories of liability on which they wish to rely if the rule in Stubbings is upheld. These are, in increasing degree of artificiality (1) breach of a direct duty of care owed by the employer to the claimant; (2) breach of a duty of care by other employees; (3) breach of a duty of care by the abuser himself and (4) breach of a duty by the abuser to notify the employer of his own wrongful acts. In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, para 100 Auld LJ said that the need to frame a claim in one or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing ‘arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.’ I therefore think that it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper [1965] 1 QB 232.”
Lord Brown of Eaton-under-Heywood concurred. As regards the exercise of the court’s discretion under section 33 of the 1980 Act, he commented that, by no means everyone who brought a late claim for damages for sexual abuse, however genuine, could reasonably expect the court to exercise the section 33 discretion in his favour.
As regards Mrs A’s appeal, he stated:
“88. (...) It would not ordinarily be sensible to sue an indigent defendant. How then should the court approach the exercise of its section 33 discretion in a case like A where suddenly, after many years, the prospective defendant becomes rich. The House is not, of course, itself exercising this discretion. I would, however, suggest that it would be most unfortunate if people felt obliged (often at public expense) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement. (Judgments, although interest bearing for only six years, are enforceable without limit of time.)”
The House of Lords judgment effectively meant in the applicant’s case that the section 11 limitation period of three years became applicable to the circumstances of his case with the possibility of an extension of that period at the discretion of the court under section 33 of the Limitation Act 1980. Indeed, their Lordships remitted the case to the High Court to consider whether it ought to exercise its discretion under section 33 of that Act. As for the question of costs, their Lordships ordered the parties to lodge written submissions on this issue within 14 days.
5. The House of Lords decision on costs
In a Judgment Order of 10 April 2008, the House of Lords awarded Mrs A her costs both before the House and the Court of Appeal, with the High Court costs to be determined by the judge hearing Mrs A’s application on section 33 of the Limitation Act 1980.
6. The remittal to the High Court
On 8 July 2008 Coulson J, sitting in the High Court, exercised his discretion in favour of Mrs A and allowed her to sue the applicant in damages.
Among the factors taken into account by the learned judge were the following: (i) the nature and seriousness of the underlying tortious wrong; (ii) the fact that one of the consequences of that wrong was the applicant’s impecuniosity (because he was unable to earn money by which he could otherwise have met a judgment for damages); (iii) the fact that, prior to his lottery win, the applicant was simply not worth pursuing in an action for damages – this being the principal reason for Mrs A’s delay; and (iv) the fact that Mrs A acted promptly following the defendant’s release from prison and his lottery win.
In response to the applicant’s argument that, if he exercised his discretion in favour of Mrs A in the present case, there would be a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the defendant’s impecuniosity, Coulson J added that:
“89. ...I consider this to be a wholly exceptional case. It will be very rare for a claimant to bring a claim against a defendant for a tortious wrong, in circumstances where that wrong was so serious that it caused the defendant to be sentenced to life imprisonment (thereby creating the impecuniosity which prevented the claimant from bringing proceedings against him in the first place) or brought with it in some other way a financial catastrophe for the defendant which meant that he would not be in a position to meet any judgment against him. It will be even rarer for such a defendant, years later, to buy a lottery ticket, which wins him £7million, or otherwise comes into an unexpected fortune, which makes him suddenly worth pursuing after all. Thus, even if it was appropriate to conclude that section 33 was only applicable in exceptional cases, I am in no doubt that this is indeed such a case.”
In the event, the applicant was ordered to pay the costs of all the proceedings before the lower courts in addition to the costs before the House of Lords and the Court of Appeal. In total, in addition to his own costs of GBP 239,583 the applicant was ordered to pay GBP 537,885.20 in legal costs and GBP 50,000 in compensation to Mrs A.
B. Relevant domestic law and practice
1. The Limitation Act 1980
(a) Background to the Limitation Act 1980
The background to the adoption of the Limitation Act 1980 is set out in detail in the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 28-37, Reports of Judgments and Decisions 1996 IV.
(b) Relevant provisions of the Limitation Act 1980
Section 2 of the Limitation Act 1980 provides as follows:
“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
Section 11 of the Limitation Act 1980 deals with special time limits for actions in respect of personal injuries and, in its relevant parts, reads as follows:
“11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ...
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from—
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured...
Section 33 of the Limitation Act 1980 further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms:
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3)In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976...”
(c) The Law Commission Report 2001
In its report, Limitation of Actions (2001) (Law Com No 270), the Law Commission carried out a comprehensive review of the law of limitation. As regards sexual abuse cases, the Commission identified the following problems:
“1.5 Traditionally, the limitation period has started from the date the cause of action accrued, whether or not the claimant knows of the potential claim. This caused injustice where the injury suffered by the claimant did not become apparent for several years. Provision has been made for such cases of latent damage in actions for personal injuries, under the Consumer Protection Act 1987 and in some other cases. However, the provision for latent damage does not extend to most causes of action. Outside the areas of personal injuries and consumer protection, the limitation period will only run from the date the claimant knows the relevant facts if the claim is brought in negligence. Even where the claim is for personal injuries, provision for latent damage does not extend to deliberately caused injuries. Here the limitation period remains six years, running from the date of accrual of the cause of action. This has led to the anomalous result that a claimant who has been sexually abused by her father may have longer to bring a claim for damages against her mother for negligently failing to prevent the abuse than to bring a claim against her father for actually committing the abuse.
1.6 It is necessary to balance the interests of the claimant (who wishes to have as long as possible to bring a claim) and the defendant (who must be protected from stale claims) in setting a limitation period. It will never be possible to achieve complete fairness between the parties (indeed the imposition of any limitation period could be regarded as doing ‘rough justice’ to the claimant). However the balance struck under the present law does not give sufficient recognition to the interests of the claimant...”
The Law Commission thus recommended the following:
“1.14 The core regime will be modified in its application to claims in respect of personal injuries. The court should have a discretion to disapply the primary limitation period, and no long-stop limitation period will apply...
All personal injury claims will be subject to this regime, whether the claim concerned is made in negligence or trespass to the person (including claims in respect of personal injury).”
2. The Practice Statement (Judicial Precedent) 1966 1W.L.R. 1234
In the Practice Statement (Judicial Precedent) 1966 1 W.L.R. 1234, Lord Gardiner L.C. declared:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
3. The Civil Procedure Rules - General Rules about Costs
The relevant rules on costs read as follows:
Rule 44.3 - Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs
“ (1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(...)
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.”
COMPLAINTS
The applicant complained under Article 1 of Protocol No. 1 to the Convention that the costs order imposed on him as a result of the outcome of the proceedings in the House of Lords constituted an unlawful interference with his right to the peaceful enjoyment of his possessions.
The applicant further complained under Article 6 § 1 of the Convention that the process whereby he had had to pay for a change in the law was unfair.
The applicant finally complained that the order for costs against him effectively amounted to a further penalty.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 to the Convention
The applicant argued that the order for costs against him had deprived him of his money without any justification in the public interest in breach of Article 1 of Protocol No. 1 to the Convention. In particular, he considered that he had had to pay, as a private person, for a change in the law, which in any event should have been done by Parliament. He further disputed the lawfulness of the costs order on the ground that the House of Lords had acted ultra vires in interpreting the 1980 Act in the way that it did. This, he suggested, had “tainted” the proceedings and effectively rendered the order unlawful. Article 1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. Existence of an interference with property rights
The Court recalls that Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest... The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 62, ECHR 2007-...).
The Court notes that the applicant’s complaint in the present case is not directed at the relevant legislation on limitation of actions as such, but concerns the costs orders that were issued against him as a result of the outcome of the case in the House of Lords. In this regard, the Court recalls that the Commission has previously found that costs imposed were “contributions” within the meaning of the second paragraph of Article 1 of Protocol No. 1 (Agis Antoniades v. the United Kingdom, no. 15434/89, Commission decision of 15 February 1990, D.R. 64, p. 237; Aires v. Portugal, no. 21775/93, Commission decision of 25 May 1995, DR 81, p. 48 citing further references).
The Court considers however that the instant case raises the question of whether and to what extent the order to pay Mrs A’s costs at all levels of jurisdiction can be considered to have amounted to an interference with the applicant’s right to the peaceful enjoyment of his possessions (see, mutatis mutandis, Aires, cited above; Perdigão v. Portugal [GC], no. 24768/06, § 61, 16 November 2010). The Court will therefore examine the case in light of the general rule under the first sentence of the first paragraph of Article 1 of Protocol No 1.
2. Compliance with the requirement of lawfulness
The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (Carbonara and Ventura v. Italy, no. 24638/94, § 63, ECHR 2000 VI). This condition derives from the rule of law, one of the fundamental principles of a democratic society, inherent in all the Articles of the Convention (Carbonara and Ventura cited above, § 63). In particular, the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 47, § 110). In this regard, the Court reiterates that the principle of legal certainty is a fundamental aspect of the rule of law (Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII).
In the present case, the applicant did not deny that the costs order had a basis in domestic law. Nor did he argue that the way in which the applicable rules on costs were applied was unpredictable. However, the applicant complained that he had lost his case, and therefore had had to pay Mrs A’s costs, as a result of an unforeseeable change in the law of limitation.
The Court observes that, even if it could be considered that an issue arose as to the lawfulness of the interference in question as a result of the allegedly unforeseeable change in the law of limitation, courts may depart from their well-established case-law provided they give good and cogent reasons for doing so. In this respect, the Court recalls its finding in C.R. v. United Kingdom, no. 20190/92, § 34, A 335-C, 22 November 1995 that however clearly drafted a legal provision may be, in any system of law, there is always an inevitable element of judicial interpretation. Equally, there will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. The Court thus concluded in C.R. that the principle of legality was not offended where the development of the law in a particular area, in that case the absence of marital immunity for rape, had reached a stage where judicial recognition of that development was reasonably foreseeable.
The Court considers that, although C.R. raised issues of legal certainty under Article 7 of the Convention, these principles can equally be applied to the circumstances of the present case. In this connection, the Court notes that, by the time the applicant’s case reached the House of Lords, the unsatisfactory character of the law of limitation as it applied in sexual abuse cases had already been raised by the Law Commission in its 2001 report. In particular, the Law Commission had described the effect of the House of Lords decision in Stubbings v Webb as “anomalous” and recommended a complete overhaul of the law of limitation in this area (see paragraphs 41 and 42 above). This had culminated in the Court of Appeal suggesting that “the House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot” (see paragraph 17 above).
The Court further notes that the House of Lords in the present case gave full and reasoned arguments in support of their interpretation of sections 2, 11 and 33 of the 1980 Act (see paragraphs 25 to 30 above). In particular, Lord Hoffman, in his speech, gave a detailed account of the history of the 1980 Act and of legal developments since Stubbings, which, in his view, had brought the anomalies of Stubbings into sharp relief. The Court thus considers that the House of Lords decision, as contained in Lord Hoffman’s speech, constituted no more than a reasonably foreseeable development of the law of limitation in sexual abuse cases. In these circumstances, the Court does not discern any impropriety, let alone arbitrariness, in the way in which the House of Lords decided the case.
Finally, the Court recalls that in Stubbings and Others v. the United Kingdom, 22 October 1996, § 56, Reports of Judgments and Decisions 1996 IV it stated that the Contracting States enjoyed a margin of appreciation in regulating the right of access to a court. Accordingly, it concluded that there had been no violation of Article 6 on the ground that the rules of limitation, as interpreted by the House of Lords in Stubbings v Webb, constituted a proportionate restriction on the right of access to court. While the Court is well aware that this part of the applicant’s complaint is not concerned with access to court as such, the Court would point out that, in keeping with the margin of appreciation of States in this area, it was open to the domestic courts to interpret the rules of limitation in a way that was more favourable to victims of sexual abuse. Indeed, the Court suggested the same in Stubbings and Others, where it observed that the rules on limitation of actions in Council of Europe member States might have to be amended in the future to make special provision for victims of sexual abuse (at paragraph 54 of the judgment).
In view of all the above, the Court is satisfied that any interference with the applicant’s possessions was lawful within the meaning of Article 1 of Protocol No.1 to the Convention. The Court will now proceed to examine the balance struck between the competing interests in the present case.
3. Public interest and fair balance
The Court recalls that for an interference with the right to property to comply with Article 1 of Protocol No 1, it must have a legitimate aim. Insofar as the applicant seems to suggest that the costs ordered against him did not pursue any legitimate aim, the Court observes that costs are a well established feature of the justice system. In particular, the Court has previously held that the general rule on costs that the unsuccessful party will be ordered to pay the costs of the successful party (previously known as the principle that “costs follow the event”) was reasonable, especially having regard to the fact that it may act as a disincentive to unnecessary litigation (see Agis Antoniades cited above). The Court therefore considers that the costs orders in the present pursued a legitimate aim (see, mutatis mutandis, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 61, Series A no. 316 B).
The Court further recalls that in order to be compatible with the general rule set forth in the first sentence of the first paragraph of Article 1, an interference with the right to the peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I). In the present case, the Court acknowledges that the sum required under the costs order against the applicant – in the region of GBP 770,000 – is very substantial. It is also true that the courts could have exercised their discretion to make a different order, having regard to the fact that the applicant had previously succeeded on part of his case (see paragraph 44 above). The Court notes however that it was open to the domestic courts strictly to apply the “costs follow the event rule” provided that due regard was given to the circumstances of the case, including whether any offer to settle had been made and the conduct of the parties during the proceedings (see paragraph 44 above). In this respect, the Court notes that it transpires from one of the applicant’s witness statements before the Court that he refused an offer of settlement that had been made by Mrs A. Moreover, the costs incurred by Mrs A do not appear unreasonable having regard to the fact that they covered three levels of jurisdiction. In these circumstances, the Court considers that there was nothing arbitrary in the way in which the applicable rules on costs were applied to the applicant’s case such as to upset the fair balance between the conflicting interests at stake. Therefore, this part of the application should be dismissed as manifestly ill-founded under Article 35 § 3 of the Convention.
B. Alleged violation of Article 6 § 1 of the Convention
The applicant further complains under Article 6 § 1 of the Convention about the lack of fairness of the process whereby, as he sees it, he has had to pay for a change in the law. Article 6 of the Convention, in its relevant parts, reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
The Court considers that this complaint is essentially of a “fourth instance” nature relating to the House of Lords’ interpretation and application of law to the facts of the case. In this connection, the Court recalls that, insofar as a complaint may be understood to concern the assessment of evidence or the outcome of proceedings before the domestic courts, it is not its function to deal with errors of fact or law allegedly committed by these courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
In the present case, the Court notes that it clearly emerges from the case file that the applicant is in fact unhappy with the outcome of the domestic proceedings. In this respect, the Court notes that it transpires from his witness statements before the Court that he was warned by his legal representatives that there was a risk, as in any litigation, that the House of Lords might find against him, notably by overturning its Stubbings v Webb judgment (see paragraph 6 above). The applicant, however, decided to go ahead with the proceedings notwithstanding. Similarly, the Court notes that the applicant refused a Part 36 offer to settle from the appellant in the belief that the courts would find in his favour (see paragraph 6 above).
Most importantly, the applicant clearly pursued the legal action because he was in a financial position to do so. In this respect, the Court notes that his situation should be distinguished from that of indigent litigants who are required to pay substantial sums by way of security for costs or court fees in the initial stages of the proceedings, thereby raising issues of access to court under Article 6 § 1 of the Convention (Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 61, Series A no. 316 B; and more recently, Weissman and Others v. Romania, no. 63945/00, § 37, ECHR 2006 VII (extracts); Kreuz v. Poland, no. 28249/95, §§ 52-57, ECHR 2001 VI). In the present case, the applicant could afford legal representation throughout the proceedings given that he had won GBP 7 million in the National Lottery. It cannot be said, therefore, that the applicant’s right of access to court has been impaired.
On the contrary, it is clear from the applicant’s skeleton arguments and submissions before the domestic courts, which are now before this Court, that the applicant was given ample opportunity to put his case throughout the proceedings. The House of Lords further gave detailed reasons for departing from their earlier case-law (see paragraphs 25 to 30 above). Finally, the Court observes that the applicant was able to make further submissions as to the question whether the court should exercise its discretion under section 33 of the 1980 Act when the case was remitted to the High Court by the House of Lords. This point was fully argued before Coulson J who subsequently gave full reasons as to why he considered that it would be appropriate for him to exercise his discretion in the circumstances of the case (see paragraphs 34 and 35 above). There is nothing in the file to suggest that the applicant did not receive a fair trial. In these circumstances, the Court finds that the present application does not disclose any appearance of unfairness in breach of Article 6 of the Convention. This part of the complaint must accordingly be dismissed as manifestly ill-founded and therefore inadmissible under Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of Article 4 of Protocol No. 7 to the Convention
Insofar as the essence of the applicant’s other complaint concerns an alleged breach of Article 4 of Protocol No. 7 (non bis in idem principle), the Court notes that the United Kingdom is not a signatory to Protocol No. 7 to the Convention. Therefore, this part of the application should be dismissed on the ground that it is incompatible ratione personae with the Convention and its Protocols, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President