England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 April 2006

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.:

Introduction

1. The claimant, Mr. Richard Smith, was born on 21 October 1978. He is thus now 27 years of age. By a claim form issued on 4 January 2002 proceedings were commenced on his behalf against Liverpool City Council ("Liverpool"), the first defendant, Portsmouth City Council ("Portsmouth") as second defendant and Knowsley Metropolitan Borough Council ("Knowsley"), the third defendant. By an order made by District Judge Smedley in Liverpool County Court on 6 September 2002 the present second defendant, Hampshire County Council ("Hampshire") was substituted for Portsmouth as second defendant. By a consent order made by Master Eyre on 27 July 2005 the claim of Mr. Smith against Liverpool was discontinued. Liverpool has played no part in the trial with which this judgment is concerned.
2. Each of Hampshire and Knowsley has been sued on behalf of Mr. Smith in its capacity as the local education authority responsible at different times for his education during his childhood. It will be necessary to consider later in this judgment in a little more detail exactly what complaints are made by Mr. Smith about Hampshire and Knowsley, respectively, but broadly he contends that he suffers from dyslexia and that neither Hampshire nor Knowsley, through its relevant officials, recognised that fact during his education or made appropriate provision for suitable education for him.
3. It was not, I think, in dispute, that Mr. Smith commenced his schooling in Liverpool. At the age of 7 years, in September 1986, he commenced attending a school in Southsea, Hampshire, St. Swithin's Roman Catholic Primary School. He remained there until July 1987. From September 1987 until July 1990 Mr. Smith attended Cliffdale First and Middle School in Havant, Hampshire. In September 1990, at the age of 11 years, Mr. Smith transferred to Cliffdale Secondary School. He remained there until 15 February 1993. At that time his parents separated and he returned with his mother to Merseyside. From February 1993 until June 1994, when he left school at the age of 15 years, he was registered as a pupil at Altbridge School in Huyton, for which Knowsley was responsible.
4. Mr. Smith thus ceased to receive any education in Hampshire in February 1993, nearly 9 years before the commencement of this action. He was only registered as a pupil at a school provided by Knowsley for about 15 months, over a period ceasing about 7½ years before the commencement of this action.
5. By the Defences served on their respective behalfs in this action both Hampshire and Knowsley contended that the claims against them, respectively, were barred by the operation of the relevant provisions of Limitation Act 1980.
6. It was accepted on behalf of Mr. Smith that his claims against both Hampshire and Knowsley were, potentially, barred by the operation of Limitation Act 1980 s.11. For present purposes the material provisions of that section are:-

"(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 a 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 …

(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) 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."

7. Any cause of action against either Hampshire or Knowsley accrued more than three years before the commencement of this action. However, it was contended on behalf of Mr. Smith that his "date of knowledge" for the purposes of Limitation Act 1980 s.11(4)(b), determined in accordance with the provisions of Limitation Act 1980 s.14, was less than three years prior to the commencement of this action. Consequently, so it was said, his claims were not statute-barred.
8. In the alternative, it was contended that, if Mr. Smith's "date of knowledge" was more than three years prior to the commencement of this action, it was, in the circumstances of the case, equitable for the purposes of Limitation Act 1980 s.33, for the provisions of Limitation Act 1980 s.11 to be disapplied.
9. By Limitation Act 1980 s.14 it is provided, so far as is presently material, as follows:-

"(1) In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts –

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant …

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge that he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert evidence

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act upon) that advice."

10. The material provisions of Limitation Act 1980 s.33 for present purposes are these:-

"(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 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."

11. Exactly when Mr. Smith discovered that he suffered from dyslexia is one of the issues in the action. His case is that he discovered that he had dyslexia when he received, on about 19 January 1999, a report ("the Pritchard Report") dated 17 January 1999 written by a lady called Carys Pritchard, a chartered clinical psychologist. The Pritchard Report was detailed and contained a number of appendices. The first page set out a "Summary of findings" which included these "Conclusions":-

"Richard is a young man with average Cognitive abilities. He has a pattern of severe difficulties which is consistent with a diagnosis of severe Dyslexia. It is essential that he receives specialist tuition in order to help him fulfil his potential."

12. Ms. Pritchard carried out tests which indicated that Mr. Smith's IQ was 84, which she said was in the Average range. She adjusted the IQ score to 90 to take account of Mr. Smith's dyslexia.
13. Mr. Smith's case is that he did not become aware that he might have a claim against Hampshire or Knowsley until about February 2001 when his mother, Mrs. Jennifer Smith, drew to his attention an article written by his present solicitor in the Knowsley Chronicle newspaper about the possibility of claims by those suffering from dyslexia for whom appropriate educational provision had not been made whilst at school.

The preliminary issues

14. In the circumstances which I have described in the preceding section of this judgment Master Eyre was persuaded to direct that the following issues be tried as preliminary issues in this action:-

"(1) Did the Claimant suffer a psychological or psychiatric injury (so as to constitute a personal injury) sufficient to satisfy the Court of Appeal's guidance in Robinson v. St. Helens MBC [2002] EWCA Civ 1099?

(2) Was the Claimant's date of actual knowledge for the purposes of section 14 of the Limitation Act 1980:

(a) on or before 4^th January 1999 (the said date being 3 years prior to the issue of the Claim Form on 4^th January 2002), and specifically, but without prejudice to any other possibilities, had the Claimant acquired actual knowledge on or before 28^th October 1998, being the date of Dr. Conway's letter to the Dyslexia Institute, referred to at paragraph 17 (vii) of the Particulars of Claim; alternatively

(b) on or about 17^th January 1999, being the date of the Carys Pritchard report, as referred to at paragraph 17 (viii) – (x) and 17A of the Particulars of Claim; alternatively

(c) in or around February 2001, in the circumstances pleaded at paragraph 17B of the Particulars of Claim.

(3) If the Claimant did not have actual knowledge 3 years prior to the issue of the Claim Form, had he acquired constructive knowledge at an earlier date?

(4) If the Claimant's actual and/or constructive knowledge pre-dates the issue of the Claim Form by more than 3 years (ie was on or prior to 4^th January 1999) should the limitation period be disapplied by the Court, exercising its discretion under section 33 of the Limitation Act 1980."

15. The letter dated 28 October 1998 to which reference was made in the formulation of the second issue at sub-paragraph (a) was a letter written by Mr. Smith's general medical practitioner, Dr. P.G. Conway concerning Mr. Smith. The material terms of the letter were these:-

"I would be grateful if you could send this 20 year old young man an appointment. I believe he has been diagnosed as being dyslexic. He is personally at a bit of a loss to know what his needs are and he would therefore welcome a professional assessment of his needs.

I understand that the initial assessment fee is £200. As a fund-holding practice, we are prepared to pay this initial fee and any subsequent tuition up to April 1999 when fund-holding will be dissolved. We would not, however, be able to fund any subsequent treatment after this time."

16. That seems in fact to have been the referral which led to Carys Pritchard conducting the assessment the outcome of which was recorded in the Pritchard Report. The letter dated 28 October 1998 to the Dyslexia Institute was in fact preceded by a letter dated 20 October 1998 from Dr. Conway to Mr. Smith himself. That letter was in these terms:-

"I contacted the Dyslexia Institute on your behalf regarding funding for an assessment for you and any subsequent treatment. I would be grateful if you could make an appointment at the surgery so I can discuss this matter and your options."

17. It is convenient at this stage in this judgment to set out the parts of the case of Mr. Smith as pleaded in the Amended Particulars of Claim which deal with the nature of his claims against Hampshire and Knowsley:-

"7. In or about September 1986 the Claimant's family moved to Portsmouth and the Claimant transferred to St. Swithins. The Claimant's teacher there suspected that his failure to progress was due to some form of learning difficulty, and the Claimant was referred to an educational psychologist employed by the Second Defendant. An assessment then did take place by the educational psychologist who told the Claimant's mother that the Claimant was "right handed but left sided". No report was ever made available to the Claimant or his mother. The Claimant's mother was told by the psychologist that the aim was for the Claimant to be educated initially at a special school and then later transferred back to mainstream school.

8. Following this assessment, the Claimant was transferred in September 1987 to Cliffdale, a special school for children with moderate learning difficulties, with a peer group that had in addition to the learning disabled, a very significant cohort of children with both physical handicaps and emotional and behavioural difficulties.

9. The Claimant remained, inappropriately placed, at Cliffdale, transferring to the equally inappropriate secondary department in September 1988, until his family moved to Knowsley in or about September 1993.

10. After moving to Knowsley, the Claimant was placed at Altbridge, which is/was an equally inappropriate school for children with moderate learning difficulties, without any or any adequate investigation by the 3^rd Defendant for the remainder of his secondary education. He initially refused to attend the said school as it appeared to be a school for children who were "drop outs", who had rejected education, many of whom had very serious behavioural problems and who regularly spoke of dealing drugs in the playground. The Claimant left Altbridge school in June 1994 without any qualifications.

10A. The Claimant is of above average intellectual ability but had greater difficulty in acquiring a reasonable range of literacy skills, in particular reading, writing and spelling, than other children of his age at the time.

10B. The Claimant's difficulties were or ought to have been known by his teachers at Cliffdale (primary and secondary sections) and Altbridge Schools, in particular:

(i) The Claimant's literacy skills were, at all material times, so far behind those of his peers of similar academic ability that any reasonably competent teacher would or ought to have been aware of the difference.

(ii) The Claimant's literacy skills were, at all material times, so deficient in comparison with his oral skills that any reasonably competent teacher would or ought to have been aware of the difference.

(iii) The Claimant's teachers were or should have been aware of his lack of achievement in literacy skills by September 1987 when he was transferred out of mainstream into special (albeit .. wholly inappropriate) education.

(iv) Throughout his time at the schools referred to at paragraph 10B above the Claimant received no appropriate learning support.

….

12A As a result of being misplaced in a school for children with a variety of disabilities (when the Claimant was a boy of above average intelligence with a specific learning difficulty and should have been properly supported in a mainstream school) he became alienated from his peer group, suffered significant frustration, embarrassment and lowered mood. Whilst at Altbridge he was not allowed to study the only subject he could excel at (art) until he had passed either English language, literature or mathematics at GCSE. As a result of complete alienation at the placement he began to regularly truant. He now suffers from recognisable psychiatric disorders (scholastic underachievement, specific reading disorder and specific disorders of arithmetical skills – ICD 10 F81)."

18. The central allegation against both Hampshire and Knowsley is thus not that either of them failed to ascertain that Mr. Smith had special educational needs, but rather that they misdiagnosed what those needs were. Instead of sending him to special schools, his case is that he should have been left in a mainstream school, but given the support appropriate to a child of above average intelligence who suffered from dyslexia.
19. The allegations of negligence against Hampshire and Knowsley pleaded in the Amended Particulars of Claim were these:-

"15. The teaching staff at Cliffdale and at Altbridge negligently failed to recognise that the Claimant was inappropriately placed at those schools and failed to take such steps as reasonably competent teaching staff would have taken to identify the cause of the Claimant's total failure to develop literacy and numeracy skills, in particular by referring him for a reassessment by an educational psychologist. Specifically there was a failure of each and every professional teacher/educationalist (the only special needs teachers who can be identified by the Claimant were a Mr. Vaughan at Cliffdale Primary School and Miss West at Cliffdale Secondary School) who came into contact with the Claimant failed to:-

(i) realise the difference between the Claimant's recognised intellectual ability and his low achievement in literacy and numeracy skills;

(ii) heed the difference between the Claimant's excellent oral abilities and the very low standard of his written work;

(iii) heed the clear dyslexic traits displayed by the Claimant; and/or

(iv) failed to consider the possibility that the Claimant was suffering from dyslexia or some other specific learning disorder that could have been alleviated with the assistance of an educational psychologist;

(v) failed to refer the Claimant to an educational psychologist;

(vi) failed to supply the Claimant with adequate or any encouragement or support, instead dismissing him as lazy, disruptive and disorganised;

(vii) in the premises failed to question the appropriateness of the placement of the Claimant in a school for children with generalised learning difficulties, physical handicaps and emotional and behavioural disorders and failed to take any or any adequate steps to refer him to the local education authority.

15A. The 2^nd Defendant directly, and vicariously through its special educational needs officers (who cannot be identified until disclosure has taken place) would have been aware of the placement of a boy of above average ability in Cliffdale Primary and thereafter Cliffdale Secondary School.

…

(i) Any move from mainstream to special schooling would require the knowledge and consent of the local education authority.

(ii) Having authorised the move on a short term basis, the 2^nd Defendant, their employees, servants and agents would have been aware that he remained inappropriately placed at the school.

15B. Given the knowledge, actual or constructive, that the 2^nd Defendants had or should have had about the Claimant's educational plight the 2^nd Defendant directly, their employees, servants or agents failed:

…

(i) to commence a full statutory assessment under section 5 of the Education Act 1981 and thereafter section 167 of the Education Act 1993;

(ii) to make and maintain a statement of the Claimant's special educational needs, pursuant to section 7 of the Education Act 1981 and thereafter section 168 of the Education Act 1993;

(iii) to specify and/or to provide special educational provision to meet the Claimant's needs contrary to section 7(1) of the Education Act 1981 and section 168(5)(a) of the Education Act 1993;

(iv) it was negligent to place any child (let alone a child of above average ability) in a special school without issuing a statement of special educational need;

(v) the Claimant was deprived, because of the lack of a statutory statement, of his appeal rights (exercisable through his parents) and of any access to the Special Educational Needs Tribunal which was the only statutory method of challenging school placements;

(vi) in the premises the Claimant was denied of the last 3^rd and the whole of a normal education to which he was legally and morally entitled.

15C. By reason of the matters pleaded at paragraph 10 the 3^rd Defendant was both directly and vicariously liable through the negligence of their employees, servants and agents who failed:

(i) to investigate the Claimant's circumstances, particularly whether he had the benefit of a statement of special educational need;

(ii) had inquiries been made the 3^rd Defendant would have carried out further investigations as it was rare/unheard of for a child to be placed in a special school without a statement of special educational need;

(iii) such investigations/review of the Claimant's educational needs and the provision necessary to meet them would have revealed that he was a boy of above average intelligence who was grossly misplaced outside the mainstream of education.

15D. If the Claimant is unable to establish the aforesaid allegations of breach due to the absence of educational records, he will rely upon the doctrine of res ipsa loquitur as the pleaded facts speak for themselves. The Claimant will rely upon paragraph 9.9 of Dr. Randall's report that even in the absence of the documentary record, given the level of the Claimant's dyslexia and given the fact that he had no intellectual, sensory, emotional or physical disability, that it was plainly and obviously inappropriate to place such a normal child in a special school for children with serious disabilities."

The evidence

20. Mr. Smith and his mother gave live evidence before me and were each cross-examined. Mr. Nicholas Bowen, who appeared on behalf of Mr. Smith, also relied upon the evidence of Dr. Peter Randall, a chartered educational psychologist instructed on behalf of Mr. Smith, in reports dated, respectively, 3 December 2003 and 12 February 2006, and in letters dated 12 May 2004 and 6 July 2004. For the purposes of the hearing before me the evidence of Dr. Randall was not challenged.
21. On behalf of Hampshire Mr. Alan Feltham, a solicitor in the council's legal department, made a statement for the purposes of the hearing before me. That statement was not challenged as to its factual accuracy and the material part of it I shall come to later in this judgment.
22. Mr. Ian Chisnall, head teacher of Altbridge Secondary Support Centre, made a statement on behalf of Knowsley for the purposes of the hearing before me which was not challenged. I shall come to the material parts of Mr. Chisnall's statement later in this judgment.

The first issue

23. As matters turned out I was not in fact required to answer the first of the issues directed by Master Eyre to be tried as a preliminary issue. Mr. Clive Sheldon, who appeared on behalf of Hampshire, and Miss Sophie Mortimer, who appeared on behalf of Knowsley, were each content that I should assume that the answer to that issue, for the purpose of the trial of the other issues directed to be tried, was affirmative, that is to say that Mr. Smith had suffered a psychological or psychiatric injury. It was emphasised to me by both Mr. Sheldon and Miss Mortimer that whilst their respective clients were prepared to accept for the purposes of the present hearing that that was the position, actually, if the matter went any further, it was not accepted that Mr. Smith in fact suffered from dyslexia, or that there had been any failure to assess properly any special educational needs which he may have had, or that he had not been provided with any appropriate statement of special educational needs, or that any steps which should have been taken to ameliorate any dyslexia from which he may have suffered had not been taken.

The second issue

24. Before coming to the evidence as to the second of the issues which Master Eyre directed to be tried, that is to say, in essence, when did Mr. Smith acquire the " knowledge" referred to in Limitation Act 1980 s.11(4)(b), it is convenient to consider the submissions of counsel as to the approach which should be adopted. I did not understand that there was any difference between counsel as to the relevant principles, but they were set out most fully in the written skeleton argument of Miss Mortimer.
25. Miss Mortimer submitted that a convenient summary of the basic approach was to be found in the judgment of Brooke LJ, with which the other members of the Court of Appeal agreed, in Spargo v. North Essex District Health Authority [1997] PIQR 235 at p.242:-

"(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) "Attributable" in this context means "capable of being attributed to", in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was."

26. One aspect of the matter which, submitted Miss Mortimer, a claimant did not have to appreciate for the purposes of assessing his "date of knowledge" in the context of Limitation Act 1980 s.11(4)(b), however, was that the act or omission upon which his claim was founded was arguably actionable or tortious. That was made plain by the judgment of the Court of Appeal in Dobbie v. Medway Health Authority [1994] 1 WLR 1234. The leading judgment in that case was that of Sir Thomas Bingham MR. At page 1243D-E he said this:-

"But I am in complete agreement with the judge's conclusion. The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she at all times reasonably considered this to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run."

27. Furthermore, Miss Mortimer submitted, for the purposes of Limitation Act 1980 s.14(3), the knowledge which a person might reasonably have been expected to acquire was something to be considered on an objective basis, rather than by reference to the particular characteristics of the individual claimant. That was the effect, she contended of the decision of the House of Lords in Adams v. Bracknell Forest Borough Council [2004] 3 WLR 89. That was in fact a case in which a claim similar to that in the present case was being made, in that the claimant was dyslexic and he contended that the local education authority which provided the schools which he had attended during his childhood ought to have detected that condition and made special provision to take account of it, but had failed to do so. The leading speech, with which the majority on this point agreed, was that of Lord Hoffmann. At page 101G – page 102G he said this:-

"48. The judge held that Mr. Adams acted reasonably in making no inquiry into the reasons for his literacy problems. I do not think that he based this finding upon matters of character or intelligence which were peculiar to Mr. Adams. If the judge had been relying upon his personal characteristics, he might have been hard put to explain why someone who was willing to confide in a lady he met at a dancing party was unable to confide in his doctor. But the judge appears to have thought that extreme reticence about his problems was the standard behaviour which ought to be expected from anyone suffering from untreated dyslexia and that the conversation with Ms Harding was an aberration.

49. In principle, I think that the judge was right in applying the standard of reasonable behaviour to a person assumed to be suffering from untreated dyslexia. If the injury itself would reasonably inhibit him from seeking advice, then that is a factor which must be taken into account. My difficulty is with the basis for the finding that such a person could not reasonably be expected to reveal the source of his difficulties to his medical adviser. In the absence of some special inhibiting factor, I should have thought that Mr. Adams could reasonably have been expected to seek expert advice years ago. The congeries of symptoms which he described to Dr. Gardner, which he said had been making his life miserable for years, which he knew to be rooted in his inability to read and write and about which he had sought medical advice, would have made it almost irrational not to disclose what he felt to be the root cause. If he had done so, he would no doubt have been referred to someone with expertise in dyslexia and would have discovered that it was something which might have been treated earlier.

50. The judge's finding as to the generally inhibiting effect of untreated dyslexia appears to have been based upon judicial notice. There was certainly no basis for such a finding in Dr. Gardner's report, which was the only expert evidence before him. What the report did establish was that dyslexics are characteristically normal intelligent people and that Mr. Adams was such a person. Although one can easily understand someone wanting to avoid the social embarrassment of revealing his difficulties about reading and writing to colleagues at work and other acquaintances, I think that it would need some evidential foundation before one could assume that such a person was likely to be unable to speak about the matter to his doctor. Such evidence was entirely lacking.

51. In my opinion, there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics. In the absence of such an expectation, there is no reason why the limitation period should not be prevented from running for an indefinite period until some contrary impulse leads to the discovery which brings it to an end. For the reasons given by Stuart-Smith LJ in Forbes's case [1997] QB 402, 412, this could face a defendant with a claim so stale as to be virtually impossible to defend. It also means that although Tuckey LJ said, at para 26, that the decision of the judge and Court of Appeal did not mean that "such a conclusion would be reached in every case where, by chance, sometimes many years later, a claimant discovers that he is or may be dyslexic", I do not find it easy to see why not. "

28. Against the background of that rehearsal of the legal principles which I was invited to adopt in relation to the second of the issues which Master Eyre ordered to be tried, I come to the evidence in relation to that issue. Before doing so I should record that Mr. Bowen, in opening his client's case, conceded that Mr. Smith had sufficient knowledge to set time running for the purposes of Limitation Act 1980 s.11(4)(b) in respect of his claims against Hampshire and Knowsley once he had received and had had an opportunity to consider the Pritchard Report.
29. I regret to say that I did not find Mr. Smith to be a very satisfactory witness. He was cross-examined for a total of about two hours over two different days. In the course of his cross-examination by Mr. Sheldon on the first of these days he conceded that an important point made in his second written witness statement, that he had not seen a document dated 26 June 1998 called a Record of Initial Guidance and prepared by a lady called Chuka Russo, who at the material time was his personal tutor at Liverpool Community College, before a copy was obtained by his solicitor towards the end of last year, was not correct. However, when his evidence resumed on the second day he sought to reopen that issue and to retract his evidence about it. I think that in the end, during the course of his cross-examination on the second day, whilst being cross-examined by Miss Mortimer, he more or less reverted to the position which he had conceded on the first day in answer to Mr. Sheldon. However, I was left with the impression that I could not rely upon the accuracy of anything Mr. Smith said in evidence which was not corroborated by other material. I did not have the same concerns about the evidence of the only other witness on behalf of Mr. Smith who gave oral evidence before me, his mother, Mrs. Jennifer Smith.
30. In the light of the documentary evidence put before me, the oral evidence of Mr. Smith consistent with that documentary material, and the evidence of Mrs. Smith I find that the course of events which led to Mr. Smith having the requisite knowledge to start time running for the purposes of Limitation Act 1980 s.11(4)(b) was as follows.
31. From shortly after he commenced to attend Cliffdale First and Middle School , that is to say, from shortly after September 1987, Mr. Smith appreciated that he had difficulties in reading and writing which were not shared by other pupils of the same age. He recognised that he had been placed in a special school on account of those difficulties, but that those difficulties were not shared, or at least not shared in the same degree he experienced, even by other pupils at the school. In particular, the best reader in his class at the school at one point was a girl who suffered from Down's Syndrome. He felt that he should be doing better than the other children and that it was unfair that he could not read and write and some of the children with obvious disabilities could.
32. From about 1997 Mr. Smith attended what was called a Drop In Studies Centre at Old Swan, Liverpool run by Liverpool Community College. The purpose of his attendance was to improve his skills in English and mathematics. He wished to improve those skills so that he could attend an art course at Liverpool Community College, which was the course which he really wished to undertake. However, he found that he was not making the progress which he would have wished. He came to realise from discussions with other students that some students received assistance with their written work and were given more time to complete written tasks. These were students who suffered from dyslexia. I find specifically, for the avoidance of doubt, since Mr. Smith gave varying accounts at different times as to when he first heard the expression "dyslexia", that it was when he was in discussion with other students prior to 26 June 1998. His understanding of the condition at that time I find was that it affected one's ability to read and to write and that it was one the effects of which could be alleviated by assistance of the type available at Liverpool Community College.
33. Wishing to progress with his art course, and having difficulty with his written work, Mr. Smith on 26 June 1998 had a meeting with Chuka Russo. The primary purpose of the meeting was to discuss whether Mr. Smith would be permitted to undertake, commencing in September 1998, the art course which he desired to pursue. However, in the course of that meeting the requirement of Mr. Smith for assistance with his written work arose. Chuka Russo completed the Record of Initial Guidance to which I have referred, other than the name of Mr. Smith, which he wrote. On the record Chuka Russo wrote, so far as is presently material:-

"OAKBRIDGE

Richard needs help with ENGLISH & MATHS.

DYSLEXIA UNIT.

Statementing Feb 99"

34. That was a record of a discussion between them in which Ms. Russo suggested that Mr. Smith himself suffered from dyslexia and that he would need help from the Dyslexia Unit of the college. The Record of Initial Guidance was said on its face to be a document in four copies, of which one, the white copy, was for the student. Some time around 14 September 1998, the date of a machine receipt printed upon it, Mr. Smith signed an Enrolment Form and Learning Agreement in respect of the art course which he wished to undertake at Liverpool Community College. That form was completed, I think, partly by Mr. Smith and partly by Chuka Russo. On the face of the Enrolment Form the Record of Initial Guidance was said to be, and was, as I find, in fact attached. One of the questions on the Enrolment Form, question 11, asked about disabilities. It was completed to show that Mr. Smith did have a disability, specifically a learning disability.
35. In the Pritchard Report Ms. Pritchard recorded that:-

"Richard is now struggling with the written aspects of his course work, and I understand that his course tutor has advised that he should seek an assessment for Dyslexia."

36. As Mr. Smith agreed in cross-examination, that information noted by Carys Pritchard could only have come from him. I find that what was recorded was correct, that is to say that Ms. Russo did advise him to seek an assessment. That was part of the advice given on 26 June 1998.
37. It is right to say, also, that in his original written witness statement, at paragraph 17 Mr. Smith did say:-

"I did make enquiries at the College as to whether it was possible to have a diagnosis or an assessment made by an Educational Psychologist but the reaction I received was that it was very difficult to arrange and no real effort was made by the College to take this matter further."

38. I do not accept that Mr. Smith asked Chuka Russo or anyone else at Liverpool Community College for a referral to an educational psychologist. What I find this comment referred to was the discussion with Chuka Russo on 26 June 1998, and thus it was inaccurate. However, it does indicate, as Mr. Smith confirmed in cross-examination by Miss Mortimer, that he was aware when he went to Liverpool Community College that there were such people as educational psychologists and that the making of recommendations for the treatment of a problem with reading and writing was one within the ambit of the skills of an educational psychologist.
39. In fact Mr. Smith did nothing immediately after being told by Chuka Russo on 26 June 1998 that he was, or might be, dyslexic. There was no obvious reason for that. A copy of Mr. Smith's general medical practitioner's records was put in evidence. It was plain from those records that Mr. Smith was in the habit of consulting his GP as occasion demanded, and that only a matter of days prior to his discussion with Chuka Russo on 26 June 1998, in fact on 29 May and 24 June 1998, he had consulted Dr. Conway concerning a somewhat embarrassing condition. In my judgment, a reasonable person told by a person with educational experience, such as Chuka Russo, that he suffered, or might suffer, from dyslexia and that, if he did, assistance was available at Liverpool Community College, would have sought, more or less at once, medical advice concerning his learning difficulties. As I have said, that was not the course which Mr. Smith took at that stage. As he did in fact consult Dr. Conway later, in October 1998, about a referral to the Dyslexia Institute, it would not seem that there was any inhibition on his part in discussing his inability to read and write with his doctor.
40. The next material event, as I find, is that some time probably about the beginning of October 1998, and certainly before 20 October 1998, Mr. Smith's mother, Mrs. Jennifer Smith read an article in a magazine about dyslexia. It cannot have been much before that time that Mrs. Smith read the article because of the chain of events which she set in train having read it, but she herself was vague in her evidence as to when exactly she had read the article. No copy of the article was put in evidence and Mrs. Smith could not remember in which journal it had appeared. However, she did recall that symptoms of dyslexia were explained in the article, and she thought at the time that the symptoms described were similar to the difficulties which her son experienced. Importantly, the article gave the name and contact details of the Dyslexia Institute as an organisation which could provide more information. Mrs. Smith then telephoned the Dyslexia Institute and spoke to an unidentified woman. This lady sought some details of Mr. Smith. When told his age, which at that time was just short of 20, according to Mrs. Smith the lady expressed surprise and said did she not know that help was available and that the condition should have been picked up at school. I accept that evidence. When asked in cross-examination by Mr. Sheldon whether she had told her son what she had learned from her telephone conversation with the lady at the Dyslexia Institute, Mrs. Smith said that she might have done. I find that in fact she did. There are two reasons for that finding. The first is that, having taken the initiative in contacting the Dyslexia Institute with a view to seeing whether anything could be done for Mr. Smith, and being told that something could be done, it seems to me inevitable that, as the caring and conscientious mother that I find her to be, Mrs. Smith would have shared with her son the result of her enquiries. However, the second reason is that it was following this contact between Mrs. Smith and the Dyslexia Institute that Mr. Smith made contact with Dr. Conway with a view to obtaining a referral to the Dyslexia Institute for assessment. Mrs. Smith told me that during her telephone conversation with the lady from the Dyslexia Institute she was told that her son could be assessed by the Dyslexia Institute, but that a fee of £200 was payable. That fee, Mrs. Smith was told, could be paid by her son's general practitioner if he were a fund-holder. Mrs. Smith told me that she went with her son to see Dr. Conway to find out whether he was a fund-holder, and, if so, whether he would be prepared to make a referral to the Dyslexia Institute. It was following that, as I find, that Dr. Conway wrote his letter of 20 October 1998 to Mr. Smith, from which I quoted earlier in this judgment. Mr. Smith and his aunt, Kathryn, then made an appointment to see Dr. Conway some time between 20 and 28 October 1998. Following the latter appointment Dr. Conway wrote his letter dated 28 October 1998 to the Dyslexia Institute, from which I have also quoted earlier. The reference in that letter to Mr. Smith being diagnosed as dyslexic was, as I find, a reference in fact to the expression of opinion on the part of Chuka Russo that he was, or might be, dyslexic.
41. The effect of the foregoing findings is that Mr. Smith had actual knowledge of the matters set out in Limitation Act 1980 s.14(1) by no later than 20 October 1998. He had known since childhood that he was unable to read and write. He was only too well aware throughout most of his life of how that inability made him feel in terms of his mood and self-esteem. He had known since his assessment by an educational psychologist in 1987 that his difficulties were associated with some condition particular to him, rather than shared by the population at large. Following his discussion with Chuka Russo on 26 June 1998 he knew that the condition in question was, or was likely to be, dyslexia, and that help was available which might alleviate the effects of that condition. A reasonable person, as it seems to me, would have concluded that, if that assistance was available at college, it probably ought to have been available at school. However, if (insofar as it is relevant, which I think it is not) Mr. Smith did not in fact draw that conclusion, he was told in terms that the condition should have been picked up whilst he was at school and that help should in fact have been given to him at that time when his mother reported to him on her conversation with the lady from the Dyslexia Institute some time at about the beginning of October 1998. At that point he knew that he had not received the assistance at school which he should have, and thus than insofar as his condition had not been alleviated by the help he should have been given, his present state was attributable to that circumstance. He knew where he had been to school, and thus he knew who was responsible for the failure to provide him with the assistance which he should have received.
42. In the result the "date of knowledge" of Mr. Smith in respect of any claim which he had against either Hampshire or Knowsley, being before 20 October 1998, was more than three years before the issue of the claim form in this action.
43. I should emphasise, for the avoidance of doubt, that the analysis which I have set out concerning the matters which Mr. Smith knew, and when, is based upon the assumptions that he does in fact suffer from dyslexia, that that condition was not identified whilst he was at school, that he was not given appropriate treatment for any condition from which he did in fact suffer, and that had he been given such treatment, his condition would or might have been improved. For the purposes of this part of this trial I am invited on behalf of Hampshire and Knowsley to assume those facts. I make no finding that any of them is correct. In the context of the issue as to the exercise of the court's discretion under Limitation Act 1980 s. 33 the strengths of the cases of Mr. Smith against Hampshire and Knowsley, respectively, are relevant issues, and to that question I am about to come.

The third issue

44. Given my findings in respect of the second of the issues which Master Eyre directed to be tried, the third of those issues does not arise. However, I have indicated my findings as to the steps which a reasonable person in the position of Mr. Smith ought to have taken following his discussion with Chuka Russo in considering the second issue. Had it been relevant, I should have found that Mr. Smith ought reasonably to have consulted Dr. Conway in July 1998. Had he done so, that would have advanced by three months the process which led to the production of the Pritchard Report. That is to say, if he had acted reasonably, Mr. Smith would have had the Pritchard Report on about 19 October 1998. As was conceded on his behalf, upon receipt of that report he assuredly had the requisite knowledge for the purposes of Limitation Act 1980 s.11(4)(b).

The fourth issue

45. Again in relation to the approach to be adopted to the decision whether to exercise the discretion of the court in favour of Mr. Smith under Limitation Act 1980 s.33 it appeared that there was agreement between counsel as to how the relevant principles had been addressed in previous cases.
46. Mr. Sheldon and Miss Mortimer emphasised that for the purposes of Limitation Act 1980 s.33 what had to be considered was all the circumstances of the case, of which an important one was simply the amount of time which had elapsed since the occurrence of the events relevant to the claim or claims of the claimant. That was a factor commented upon by Lord Oliver of Aylmerton in Donovan v. Gwentoys Ltd. [1990] 1WLR 472 at pages 479G – 480C:-

"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within the prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge's judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after expiry of the limitation period, he felt constrained to regard the time which had to been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion."

47. That passage was cited with approval by Keene LJ, giving the leading judgment in the Court of Appeal, in Rowe v. Kingston-upon-Hull City Council [2003] EWCA Civ 1281. I suspect that my attention was drawn to that decision by Mr. Sheldon because of the facts that it concerned claims by a person suffering from dyslexia against two local education authorities in respect of the alleged failure of each to detect his condition whilst at school and to make appropriate provision to alleviate its effects. There had been a trial of preliminary issues as to limitation in that case and the conclusion of the Court of Appeal was that the trial judge had given too much attention to the particular provisions set out in Limitation Act 1980 s.33(3)(a) and (b) and insufficient attention to the general lapse of time. In the course of his judgment, with which Mummery LJ agreed, Keene LJ said this, to which I was urged by Mr. Sheldon and Miss Mortimer to have particular regard:-

"32. Secondly, there are valid criticisms to be made of the way in which the judge dealt with the difficulties the defendants were having in tracing teachers who had taught the claimant. His comment that they were probably traceable through their trade union or through Teachers' Pensions does not seem to have been based on any evidence. Mr. Ross points out that there was also no cross-examination of Mrs. Watts on this topic, but, in particular, the judge comes back to asking himself whether tracing would have been any easier if the action had started earlier. Again, that does not diminish the significance of the difficulties which the defendants will experience if the time limit is disapplied under section 33. This is the same error as the previous one identified, albeit in a somewhat different context.

33. Finally, the judge seems to have given no separate consideration to the difficulties the claimant would face in pursuing his claim against the second defendant, whose schools he attended only from the time when he was almost 15 years old and then only for a period of two years. On the evidence before the judge, the prospects of success against that defendant must seem to be very limited, and yet this appears to have been left out of account in the judgment.

…

35. The burden of showing that it would be equitable to allow these claims to proceed rests on the claimant, and, as has been said in a number of cases, it is a heavy burden: see Bryn Alyn, paragraph 74(ii). The balancing exercise has to take account of all the relevant factors, including those specifically set out in section 33(3), but the essential question under section 33 in such cases is whether, given the passage of time, the court could fairly try the claims that the defendants culpably failed to ameliorate the claimant's condition – Bryn Alyn at paragraph 71."

48. Mr. Sheldon and Miss Mortimer also drew to my attention some observations of Sir Murray Stuart-Smith in Robinson v. St. Helens Metropolitan Borough Council [2003] PIQR 128 at pages 139 – 140, quoted with approval by Lord Hoffmann in Adams v. Bracknell Forest Borough Council at page 103 of the report of the latter case. Sir Murray said:-

"32. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are inevitably very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.

33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant."

49. Mr. Smith's case that the court should exercise its discretion under Limitation Act 1980 s.33 in his favour was deployed in its essentials in Particulars pleaded under paragraph 18 of the Amended Particulars of Claim. What was alleged was:-

"(i) The Claimant has a strong and arguable case which would be lost if section 11 is applied and he would therefore suffer prejudice of the most serious kind.

(ii) If as the Defendants now contend at paragraph 7 of their joint (undated) skeleton argument that the Claimant's date of knowledge was late October 1998, then the delay was approximately two months.

(iii) This very short delay has made no difference at all to the cogency of the evidence likely to be adduced by either the Claimant or the Defendant than if the claim had been issued within the extended limitation period pursuant to section 14.

(iv) The Claimant will rely upon the fact that after reading the newspaper article referred to at paragraph 17B [that written by his present solicitor] he has acted with reasonable promptitude. Having read the said article the Claimant (through his mother) telephoned and made an appointment to see the solicitors on 14^th March 2001 to discuss the matter further. The Claimant was seen again by the solicitor on 20^th March 2001 and public funding forms were completed. The application was forwarded on to the Commission on 5^th April 2001. Following an appeal limited legal funding was obtained on 28^th June 2001. An appointment was made with the Claimant on 6^th July 2001 but was cancelled. Between July 2001 and 4^th January 2002 further investigations were made and preparations put in place to instruct an educational psychologist. The Claim Form was issued out of the Liverpool County Court on 4^th January 2002.

(v) In contrast, the conduct of the Defendants after this cause of action arose has not been conducive to a speedy hearing of this action. As set out in detail in the 2^nd witness statement of the Claimant's solicitor dated 2^nd June 2004, unmeritorious procedural points have been taken by the Defendants which have had the effect of incurring unnecessary costs and causing the delay since the issue of the Claim Form.

(vi) In addition reasonable requests for information have not been promptly answered, for instance the request for further information raised on 11^th June 2003 was not answered until 27^th October 2003, a delay of over 4 months.

(vii) The Claimant has acted with reasonable promptitude (if which is not admitted) he did issue his claim form only just outside the extended limitation period under section 14 of the 1980 Act.

(viii) The Claimant has also taken steps to obtain psychological and psychiatric evidence in support of his claim."

50. The points made in Particulars (ii) and (iii) under paragraph 18 of the Amended Particulars of Claim are plainly directed at the specific matters mentioned in paragraphs (a) and (b) under Limitation Act 1980 s. 33(3) and not at the wider impact of delay as considered by Lord Oliver in the passage of his speech in Donovan v. Gwentoys Ltd which I have quoted. The matters set out at Particular (iv) seem to be directed at paragraph (e) in s.33(3), but they start the story at February 2001, not at what I have found to be the relevant date, October 1998. Delay as from that latter date until about 19 January 1999 is in fact explained by the obtaining of the assessment and report of Carys Pritchard, but there is no pleaded explanation of the delay thereafter until February 2001, when Mrs. Smith read the article written by Mr. Smith's present solicitor. What exactly was going on between 28 June 2001 and 4 January 2002 was not further elaborated, whether in the Amended Particulars of Claim or in the evidence. Certainly it did not involve writing a letter before action to, or having any other communication with, either Hampshire or Knowsley. The allegations raised in Particulars (v) and (vi) of paragraph 18 of the Amended Particulars of Claim do not seem to me to be at all material to the issue which I have to decide. What would be important was the conduct of Hampshire and Knowsley in the period between, in the case of Hampshire, about July 1987 and 4 January 2002, and, in the case of Knowsley, about February 1993 and 4 January 2002. In fact there was no relevant conduct, save the continuation of the education of Mr. Smith, because each of Hampshire and Knowsley was wholly unaware before the issue of the claim form in this action that Mr. Smith had or asserted any cause of action against it.
51. Mr. Bowen on behalf of Mr. Smith did not really address the issue of prejudice to Hampshire and Knowsley simply by reason of the lapse of time since the commencement of the matters complained of against each, or the question of proportionality raised by Sir Murray Stuart-Smith, other than by asserting that Mr. Smith had a very strong, nay unanswerable, claim against each of Hampshire and Knowsley of which he would be deprived if the provisions of Limitation Act 1980 s.11 were not disapplied. It is, of course, a feature of any case in which the court is invited to exercise its discretion under Limitation Act 1980 s.33 that if the court does not exercise its discretion the claim of the claimant will not proceed to adjudication upon the merits.
52. In fact the evidence of prejudice adduced on behalf of Hampshire was, as it seemed to me, very strong. It was dealt with by Mr. Feltham. In his witness statement dated 17 March 2006 he said this:-

"4. The passage of time between the Claimant's departure from the Hampshire area and the issue of these proceedings has created immense difficulties in researching the true factual basis to this case. This has been made particularly difficult by the fact that the Claimant has not identified the names of any of his teachers, bar one, or of the educational psychologist that he was assessed by before his placement at Cliffdale Primary School. It has simply not been possible to track down the latter person given the lack of a name, the absence of documentation retained by the LEA or disclosed by the Claimant, and the passage of time.

5. In spite of all my efforts, it has only been possible to locate a tiny number of documents that concern the Claimant: basically, the register confirming that the Claimant was on the roll at the relevant schools. It has not been possible to locate any individual who has any detailed recollection of the Claimant's situation. The LEA's Defence of this case will therefore have to be put forward on the basis of what we believe would have happened in the ordinary course of events, when the Claimant's case appears to be that we must have departed from the norm in his particular case.

6. In the course of my investigations, I have made contact with a number of persons who I hoped might be able to provide me with information about the Claimant and his schooling in the area. My contacts have included Mr. Murray, Mrs. Sansome, Mr. Kelsey, Lesley Handford, Mr. John Vaughan, Tony Cox, Liz Nye, David Jones, Sarah Kersey and Felicity Dickinson.

7. Mr. Murray was until recently the Headmaster of St. Swithun's Catholic Primary School. He told me that he had spoken with staff who were at the school when the Claimant was present and the former Headteacher and Deputy Head had also been spoken to by the school's SENCO. He reported that the Claimant was only at the school for one academic year, and although a couple of staff could remember him, they could not remember very much. Their memories of him were vague. It was his understanding that all school records would have been passed to Cliffdale at the time of the Claimant's transfer to that school.

8. Mrs. Sansome, the Headteacher of Cliffdale Primary School, informed me that the only records that she was able to locate in respect of the Claimant were the school register, which recorded the dates of his attendance (5^th September 1988 to 23^rd July 1991), and the fact that he had attended Hill View First. I have been unable to locate any further information on Hill View First which does not now exist save that its successor in terms of records/pupils may be Paulsgrove Primary School who have confirmed that they have no record of the Claimant. Apart from Mr. Vaughan, to whom I shall refer, there appear to be no other current staff at Cliffdale Primary School who remember the Claimant.

9. Mr. Kelsey is the current deputy Headteacher of Cliffdale Primary School. He has been at the school for 13 years and has been deputy for the last 3 years. He does not remember the Claimant. He confirms that so far as he knows the school cannot produce a list of roll of teachers at the time when the Claimant was a pupil there and so cannot work out who he may have been taught by. Also, he told me that the school have no record of where the Claimant's records were sent.

10. Lesley Handford was the Headteacher of Cliffdale Primary School from January 1990 to September 2002. She told me that she could not remember the Claimant, but said that he would have definitely been issued with a Statement of Special Educational Needs, and that there was "no doubt about that". Also, that the Claimant would have received a structured programme of education.

11. Mr. John Vaughan was a class teacher between 1985 and 1995 at Cliffdale Primary School and the Claimant's class teacher for about one year. He has told me that he can remember the Claimant and the Claimant's parents. He can remember that the Claimant did have a very limited writing ability, but he cannot remember that he specifically had a Statement, or if he did, what its contents were. However, he has also told me that in his experience all pupils at Cliffdale had Statements of Special Educational Need and it was very unlikely that the Claimant would have been there without one. There were some students who didn't have statements, but were simply there while they were waiting for the Statementing process to be completed. He has also told me that whilst he cannot remember the details, the Claimant would have been receiving a structured learning programme to deal with his difficulties in a class of about 16 with one teacher and one learning assistant. Mr Vaughan has told me that he can remember the Claimant's parents and can remember meeting them on several occasions, but is unable to remember any conversations in detail, nor can he remember making the comments referred to in paragraph 21 of Jennifer May Smith's statement or paragraph 44 of the Claimant's statement. Mr. Vaughan also told me that he cannot remember who the Claimant's other teachers were at the school as it is such a long time ago.

12. Tony Cox is the Headteacher of Redwood Park School, which is the successor school to Cliffdale Secondary School. Mr. Cox was the Head of Information Technology at Cliffdale Secondary School and told me that he remembers the Claimant vaguely, but not at all well. He remembers that the Claimant was not a good attendee. He also told me that no one else who is still at the school has any recollection of the Claimant. He told me, however, that he is certain that the Claimant would have been statemented and would have seen an educational psychologist. He confirms that so far as he knows the school have no record or roll of teachers at the time when the Claimant was a pupil at the school, or of where the Claimant's records were sent.

13. Elizabeth (Liz) Nye confirmed to me that she was deputy head of Cliffdale Secondary School from 1987 and head from 1996/97. She can remember the Claimant's name, but not the Claimant himself, nor can she remember what his particular educational problem was or whether she taught him. She can remember a pupil that left the school to move to the Liverpool area, but when I spoke to her she didn't particularly associate the two, although she accepts that it is probably the same person. She said that it was very unlikely that the Claimant would not have had a Statement of Special Educational Needs, particularly if he had been at Cliffdale Primary before attending Cliffdale Secondary School. There were pupils occasionally who did not have statements, but so far as she can recollect, this would simply be because they were awaiting and undergoing the statementing procedure. She informed me that if he had literacy difficulties, he would have had a structured learning programme to deal with these difficulties, in classes of between 8 and 10 students with one teacher. She also recalls that there were reading groups at the school every day. For the less able, there were groups of between 4 and 6 with one teacher and for the more able up to 12 with a learning assistant.

14. David Jones was Headteacher at Cliffdale Primary School until April 1989. He has no recollection of the Claimant. The Headteacher of Cliffdale Secondary School at the relevant time was Mike Thomas. Unfortunately, he has passed away.

15. From my investigations, I was told that the schools attended by the Claimant no longer had any records relating to him. I have also learned that the appropriate practice at the time would have been for the Claimant's educational records to be transferred to his new school and his new local education authority having moved out of the area. Assuming that this applied to the Claimant, his documents would therefore have been transferred in or around the summer of 1993. What happened to those documents following transfer is not something that I can comment on, save to say that they appear to have been destroyed.

16. No documents were retained by the LEA's SEN Service, the Educational Psychology Service, Education Other Than At Home Service, and the Education Welfare Service. This was confirmed to me back in November 2002 by Sarah Kersey, a Support Services Officer within the SEN Service. Although it is extremely unlikely that any LEA records would have been transferred to Portsmouth City Council as the Claimant moved to Liverpool in 1993 and Portsmouth did not become responsible for the schools until 1997, I have also checked with that Authority to ensure that they have no such records. They have confirmed to me that while currently the departments referred to maintain records that a pupil has moved out of the area, although not where, this database is recent. She is unable to say what the position was when the Claimant left Hampshire. It would seem to me unlikely that the LEA has this information. Sarah Kersey also confirmed to me that the LEA do not, so far as she knows, maintain a record of teachers on the roll of a particular school.

17. I have also obtained a copy of a report of the County Archivist dated 14^th October 1999, concerning "Education Department pupil and personnel records". This document recommended that appropriate records should be maintained for legal and historical purposes. As can be seen, this report was written six years after the Claimant left the Hampshire area.

18. Felicity Dickinson, an Acting Education Officer, within the Council's Policy and Resources department informed me that it was likely that the Claimant's Special Educational Needs File would have been transferred to his new local education authority in 1993. She also told me that specific learning difficulties were well recognised in Hampshire at the relevant time, and that it was accepted that children with moderate learning difficulties could have some degree of specific learning difficulty also. She said that the authority did not have a policy of placing children whose only learning difficulty was related to dyslexia in schools for children with moderate learning difficulties."

53. In oral evidence Mr. Feltham added that he had recently been able to trace and to speak to Miss West. She said that she had no recollection of Mr. Smith. Mr. Bowen put it to Mr. Feltham that if witnesses who were available and had been traced were shown a photograph of Mr. Smith as a child and required to make witness statements as to their recollection of him that might produce more information. Mr. Feltham could not exclude the theoretical possibility that that might be so. However, in reality, as it seemed to me, the line of cross-examination was implicitly a recognition that indeed Hampshire had been grievously prejudiced by the passage of time.
54. The evidence of prejudice adduced on behalf of Knowsley, which was not challenged, was that of Mr. Chisnall. He did at least have some recollection of Mr. Smith. What he said in a witness statement dated 6 March 2006 was:-

"4. The first intimation of the claim to the third defendant was in a letter from the Accident Centre, dated 4 January 2002 a copy of which is attached.

5. This letter was written when the claimant was 23 years of age, about eight years after he had last been educated at Alt Bridge.

6. Although I cannot state categorically when records relating to the claimant would have been destroyed, the practice at the time was not to retain records for longer than five years, and so doing the best I can, any records which Knowsley held in relation to the claimant will have been destroyed in the early part of 1999. This is nearly three years before the third defendants were first notified of the claim, and approaching two and a half years after the claimant attained the age of 18 in October 1996.

7. If the claim had been brought at an earlier stage, there would have been a much better prospect of locating the relevant documents with a view to demonstrating the steps taken by the third defendant to address the claimant's difficulties and to assess his particular educational needs.

8. Insofar as the court may consider the prospects of the claimant's successfully establishing liability on the part of the third defendant, it is an inescapable fact that the claimant was educated between 1983 and 1993/4 and the overwhelming majority of this – in fact all the claimant's school career with the exception of his schooling at Huyton during the academic year 1993/4 – was managed by the first and/or second defendants. The practice at Alt Bridge was that if a youngster with learning difficulties arrived in the LEA from another area the school would be informed by the Borough Statementing Officer. The special needs department of Knowsley LEA to the best of my knowledge assessed the information relating to the youngster (and any associated paperwork) which they had received from the referring authority and decide on the most appropriate educational placement to best meet the youngster's needs. Placement at Alt Bridge would result and during that placement an Educational Psychologist from Knowsley would conduct an assessment. This was a process which could take some time, and I cannot remember that in this case Richard was assessed by the Educational Psychologist. [Sentence upon which Miss Mortimer did not rely omitted]

9. [Sentence upon which Miss Mortimer did not rely omitted] After this length of time and owing to the delay in bringing the claim it is not possible for me, because the records are no longer in existence, for me [sic] to establish precisely how long Richard attended school and to demonstrate the steps which were taken to meet his needs at Alt Bridge."

55. However, the principal points put forward by Miss Mortimer on behalf of Knowsley were that, given that Mr. Smith was on its books, as it were, for only just over a year, and given that, on his own admission in evidence to me, Mr. Smith played truant for the greater part of that period, its opportunities to do anything for Mr. Smith, if one supposed that it had failed to do what it should have done, were extremely limited, and the worth of any claim against it on any view small.
56. In support of his submission that Mr. Smith's claim was a strong one Mr. Bowen relied heavily upon the first report of Dr. Randall. Dr. Randall's principal conclusion, to which Mr. Bowen drew my attention on a number of occasions, was expressed at paragraph 10.3 of his first report in this way:-

"Richard was incorrectly placed long term in inappropriate special schools without the benefit of statutory assessment, statement of special educational needs, annual reviews or transition plan. He missed the last third of his primary mainstream education and all of a secondary mainstream education as a consequence and thus was deprived of the broad and balanced curriculum that a person of normal ability has a right to."

57. Insofar as that conclusion depended upon facts, for example as to the absence of a statutory assessment, it was based upon what Dr. Randall had been told. He had no personal knowledge of the relevant matters. His conclusion that Mr. Smith was placed in inappropriate schools was, in the context of the claims pleaded in the Amended Particulars of Claim, of limited relevance. In order to make out the basis of a claim in negligence against either Hampshire or Knowsley it would be necessary to plead and prove that some assessment of Mr. Smith had been made which no reasonably competent professional of the relevant discipline acting on behalf of Hampshire, or Knowsley, as the case might be, could have made, or that some step which any reasonably competent professional of some relevant discipline could not have failed to take, had not been taken. Dr. Randall did not grapple with these issues at all. It was not alleged that the educational psychologist who had assessed Mr. Smith in 1987 had acted in any respect negligently. An earlier allegation to that effect in the Particulars of Claim had been abandoned by amendment. In the circumstances all one could really say about the strengths of Mr. Smith's claims was that they had some prospect of success if a trial on liability proceeded. What that prospect of success was was difficult to evaluate as the issues of negligence to which I have adverted had not been addressed at all in the material put before me. While it is obviously possible that, as alleged on behalf of Mr. Smith, he somehow got into Cliffdale First and Middle School, and then Cliffdale Secondary School and Altbridge without any paperwork being generated and without any review ever being carried out, that does not seem an especially likely scenario. Not the least of the queries over Mr. Smith's school career is why his parents never questioned what was going on, if the schools were as so obviously unsatisfactory for him as is now alleged. Mrs. Smith was asked about that and had no explanation. As I have said, she struck me as a caring and conscientious mother and I have little doubt that had she been unhappy with the schooling of Mr. Smith, or perceived a way in which her son's situation might have been improved, she would have sought to take appropriate steps, as she did when she read the magazine article about dyslexia.
58. Other issues essential to be addressed if Mr. Smith were to recover substantial damages in this action, but not addressed in the material put before me, were what treatment Mr. Smith should have received but for the alleged negligence of Hampshire and Knowsley and what result would have been produced had that treatment been afforded. These are not academic points. Carys Pritchard in her report assessed Mr. Smith as suffering from severe dyslexia, while at paragraph 8.5 of his first report Dr. Randall expressed the view that Mr. Smith should be assessed as suffering from very severe dyslexia. Whether any, and if so what, treatment, was available for these conditions in 1987 and thereafter was not explored in the evidence. There was no evidence as to the likely outcome had Mr. Smith been provided at any particular stage with any particular treatment. It is, perhaps, ironic, that the assessment of very severe dyslexia at least raises the possibility that the schooling provided for Mr. Smith was not as plainly inappropriate as Dr. Randall opined.
59. In the result, as it seems to me, the circumstances of the present case are perhaps a text book example of the wisdom of the views of Lord Oliver and Sir Murray Stuart-Smith which I have quoted. The prejudice to Hampshire and Knowsley if the provisions of Limitation Act 1980 s.11 are disapplied is obviously very great, especially in the case of Hampshire. That prejudice is, if anything, emphasised by the plea in the Amended Particulars of Claim that the doctrine of res ipsa loquitur should be applied in this case in favour of Mr. Smith. The difficulties in the way of success of a claim by Mr. Smith against either Hampshire or Knowsley in the light of the matters to which I have referred which have not been grappled with on his behalf thus far are considerable. The scope of the necessary investigation were the action to proceed is obviously broad and expensive. The outcome would be a matter of speculation. The difficulty in establishing a claim against Knowsley with any significant value, given its brief role in the education of Mr. Smith, seems formidable.
60. I am not prepared to exercise my discretion under Limitation Act 1980 s.33 in favour of Mr. Smith.

Conclusions

61. The answers to the issues directed by Master Eyre to be tried are thus:-

1. Issue 1: Assumed to be affirmative.

2. Issue 2: By no later than 20 October 1998.

3. Issue 3: Does not arise.

4. Issue 4: Negative.

62. The consequence is that this action fails and is dismissed.