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
		14/12/2007

The Hon. Mr Justice Eady:

1. There is before the court an appeal from a decision of His Honour Judge Latham made at the Central London County Court on 25 June 2007, following a three day hearing which had taken place on 22 and 23 May and 4 June. Permission to appeal was granted by Teare J on 23 August. The claim is for damages for negligence against a barrister in respect of a criminal trial which concluded at the Reading Crown Court as long ago as 10 December 1997. On the following day, Mr Kamar (the Claimant in the present proceedings) was sentenced to five years imprisonment for grievous bodily harm together with four years, concurrent, for threats to kill. The convictions were set aside on 16 March 1999 because there had been no good character direction in the summing up, and the comment was made by Henry LJ in the judgment that the present Defendant (Mr Nightingale) should have introduced Mr Kamar's good character in the course of the trial.
2. The decision under appeal is that whereby Judge Latham set aside the provisions of the Limitation Act 1980 in accordance with s. 33, which is as follows:

"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 11 A] 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.

[(1 A) the court shall not under this section disapply-

(a) subsection (3) of section 11 A; or

(b) where the damages claimed by the plaintiff are confined to damages for loss of or damage to any property, any other provision in its application to an action by virtue of Part 1 of the Consumer Protection Act 1987.]

(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action because of the time limit in section 11.

If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.

(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...;

(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 plaintiffs 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 [or subsection (4) of section 11A], 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.

(7) In this section 'the court' means the court in which the action has been brought.

(8) References in this section to section 11 [or 11A] include references to that section as extended by way of the preceding provisions of this Part of this Act or by any provision of Part III of this Act."

3. The Judge found that the Claimant had the requisite knowledge of his personal injury (which relates to mental health) by 20 October 1998, which would mean that the three year period would have expired on 19 October 2001. Specific knowledge as to the criticism of Mr Nightingale in connection with good character was found to date from shortly after Mr Kamar received a letter from his solicitors in December 1998, which would entail a correspondingly later expiry of limitation.
4. The proceedings with which I am now concerned were started on 1 December 2006, although they were only served in March 2007. The first notification to Mr Nightingale that there was to be a claim for personal injuries took place in January 2006. The proceedings are thus apparently well out of time, although it is right to record that, by way of proposed cross-appeal, Mr Kamar now seeks to suggest that knowledge of his medical condition was not acquired until March 2006, when he obtained a copy of a report from his psychiatrist, Dr Lipsedge.
5. The essential question for the Judge was whether it was inequitable to extend the limitation period. It was for Mr Kamar to show why Mr Nightingale should be deprived of the limitation defence.
6. What is clear is that the circumstances of this case (in contrast to some of the cases cited, in which the limitation period had only been extended by a small margin) do engage the primary public policy consideration underlying the limitation regime, in particular, that people should not find themselves vexed by claims that are "stale". As Lord Griffiths observed in Donovan v Gwentoys Ltd [1990] 1 WLR 432, 478: "The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim that is a claim with which he never expected to have to deal". Nor can the defence that Nightingale seeks to pray in aid be characterised as a "windfall" or as "an unexpected adventitious advantage": see e.g. Hartley v Birmingham City District Council [1992] 2 All ER 213, 227 (Leggatt LJ).
7. The Judge highlighted two matters in particular. First, he contrasted the position of Mr Nightingale's instructing solicitor (Mr Jackson), who had been joined as the Second Defendant in the proceedings. The Judge concluded that criticisms of the solicitor's preparation for trial would require a close examination of documentation which is no longer available. In Mr Nightingale's case, by contrast, the claim in negligence did not require a close examination of documents (or so the Judge held), since liability depended essentially on what was said to be an admitted failure on his part to put in Mr Kamar's good character. The Judge thought that the absence of documentation would not prejudice Mr Nightingale as it would Mr Jackson.
8. While that may be so as far as breach of duty was concerned, it is necessary also to have regard to any possible prejudice caused Mr Nightingale's position (and, for that matter, the position of the solicitor also) by the passage of time, in so far as it impacted on the potential issues of causation and quantification. That is a point which lies at the heart of the submissions of Mr Stewart QC, on Mr Nightingale's behalf, on this appeal.
9. The second point emphasised by the Judge was that if Mr Nightingale retained no recollection of the original proceedings, as he claimed, either at trial or in the Court of Appeal, that was his misfortune. Moreover, it was said to be his fault that he had not notified his insurers or kept his papers together. It seems to have been thought that the reference by the Court of Appeal to his inadvertence should have alerted him to possible proceedings for compensation, and he should thus have made his dispositions accordingly.
10. I bear in mind that it is a serious matter to deprive a defendant of a limitation defence, and it cannot be a sufficient reason for doing so that he is not prejudiced or that, if he is, it is his own fault. As is clear from the provisions of s. 33, set out above, there are a number of other relevant factors which have to be taken into account in arriving at the overall conclusion on what is, or is not, equitable.
11. In particular, it was necessary to consider Mr Kamar's conduct and the reasons for his delay. It was noted in Steedman v BBC [2002] EMLR 17 at [33] that the court must have regard to "the length of, and the reasons for, the delay on the part of the plaintiff", independently of "the extent to which, having regard to the delay, relevant evidence is likely (i) to be unavailable, or (ii) to be less cogent than if the action had been brought within the period". The wording is, of course, different in s.33 but the same point can be made as to the factors being independent of each other. The effect of the delay upon the defendant's ability to defend cannot therefore be the only consideration. Nor yet would it be right any longer to regard such prejudice as the "paramount" consideration: cf Hartley v Birmingham City District Council [1992] 2 All ER 213, 224 f-g (Parker LJ).
12. It was also made clear in Steedman v BBC at [22], that the court's approach to delay has undergone a "sea change". Delay itself, whether or not it is established to have prejudiced the defendant, is rightly treated as prejudicial to the administration of justice.
13. In this case the learned Judge held that his delay was "culpable" and, what is more, that the personal injury claim was, when one analyses the history of Mr Kamar's complaint, a "bolt-on afterthought".
14. One can readily appreciate that it is, sometimes, equitable to disapply or extend a limitation defence in circumstances where, for example, a claimant has done his utmost to bring proceedings but has been frustrated by lack of evidence for a considerable period of time, or where the proposed defendant has withheld something material from him. Those are matters which are clearly reflected in the terms of s. 33 itself. But that does not apply here. The Claimant's culpability (as found by the Judge) is clearly important in determining what is equitable.
15. Also relevant to causation is the question of what would, or might, have happened if good character had been referred to at the trial by Mr Nightingale. It might have made no difference at all. It might, on the other hand, have led the Crown to refer to other charges which lay in background at the time of the trial. As I understand the position, Mr Kamar had already been charged with an offence of obtaining a passport in a false name and in reliance upon a forged birth certificate; and also with an offence of opening a bank account in the same false name. Although before the Judge below, when questioned on the subject, Mr Kamar prayed in aid his privilege against self-incrimination, it is clear that he made admissions when interviewed by the police in 1997 (and also, as a matter of fact, to Dr Lipsedge when interviewed by him in 2006). One possibility is that the Crown at the criminal trial might have applied to cross-examine Mr Kamar on the admissions during police interview if his good character were introduced.
16. Another possibility is that, if he had been acquitted of the offences on which he was tried, the CPS would have proceeded with the other outstanding charges rather than allowing them to remain on file, as in fact happened. There is express reference to that in the surviving note made by Mr Benton (representing Mr Kamar's then solicitors). It seems highly likely that if this course had been taken Mr Kamar would have gone to prison anyway. (I note, in passing, that it is Dr Lipsedge's view, as expressed to the Judge below, that there may sometimes be a significant difference, as far as the impact on mental health is concerned, as between convictions which are justified by the evidence and those which are wrongful.)
17. Both Mr Stewart and Mr Westgate (appearing on behalf of Mr Kamar) recognise that an appellant in these circumstances has to go beyond persuading the court to disagree with the Judge below. An extension of the limitation period under s.33 of the 1980 Act represents the exercise of a discretion. It is thus necessary to demonstrate either that the Judge was plainly wrong, in reaching a decision which cannot be justified, or that his decision was flawed in the sense that he took into account irrelevant factors, or vice versa. In that event, it would be open to a judge on appeal to set aside the decision and exercise the discretion afresh, if thought appropriate.
18. Mr Stewart accepts that challenge and does indeed submit that Judge Latham's decision was flawed. He submits that he simply gave no reason for concluding that Mr Nightingale would not be prejudiced on issues of causation and quantum.
19. I turn first to the issue of mental health. It is the Claimant's case that the negligence led to serious mental health problems. In seeking to rebut that, Mr Nightingale would wish to argue that there were other "stressors" at work in 1997 and 1998 which would prevent any such conclusion being safely drawn. There were, for example, marital problems (Mr Kamar's wife having been the alleged "victim" in his criminal trial), and his worries about the injustice of his wife having made (on his case) false allegations against him, as well as the stress and strain relating to his other pending charges and his status as an illegal immigrant.
20. The first time Mr Kamar's case on causation was addressed by a psychiatrist was when he was seen by Dr Lipsedge. He gave evidence before the Judge below, who asked him a number of questions specifically (as he explained in the judgment) because there was no countervailing expert evidence from the other side. There are plainly difficulties about Mr Nightingale having the opportunity now to instruct an expert of his own to try and assess Mr Kamar's mental condition of nine or ten years ago. Moreover, as the Judge himself found, the evidence of Dr Lipsedge was only as good as the information he received from Mr Kamar in the course of interview. One must add to that the further difficulty, in this particular case, that the Judge found that in a number of respects Mr Kamar's oral evidence was unreliable. There is thus a real risk of its being merely self-serving.
21. In those circumstances, Mr Nightingale would plainly be in a very unenviable position in addressing Mr Kamar's mental state so many years ago. There has, as Mr Stewart put it in the course of his submissions, inevitably been considerable "overlay" in the intervening period. He is now back in this country and has remarried his wife. It is thus obvious that at least two sources of stress and anxiety have been removed in the intervening years. This would make it extremely difficult for the court, or for any expert psychiatrist, to turn the clock back and assess the impact of negligence at that time in the light of the position as it then stood.
22. It is also clear that a degree of anxiety was present before the outcome of the trial was known, during the period when Mr Kamar was in custody on remand. There is evidence that he was suffering from anxiety and depression at that time.
23. When Mr Kamar was deported, shortly after his appeal was allowed in March 1999, he took medical advice in Turkey. No records appear to be available of what transpired at that time. Mr Westgate submits that the position is no worse now than it would have been had the proceedings begun timeously. Mr Stewart, on the other hand, argues that it is a reasonable inference that such records as there were have disappeared in the interim, since Mr Kamar's solicitors have been corresponding with the relevant persons in Turkey for nearly two years without success. It is to be noted that the learned Judge specifically rejected the evidence of Mr Kamar to the effect that Turkish doctors simply do not keep records. That possible explanation having been disposed of, Mr Stewart submits that the only reasonable inference is that they have become unattainable through the passage of time. They might more readily have come to hand if the proceedings had been started five or six years ago.
24. It seems to me to be plain and obvious that there would be enormous difficulties for any defendant now confronted with these allegations in trying to reconstruct Mr Kamar's mental state at the material times. Yet this point was not addressed by the Judge, so far as I can see.
25. The other important issue on delay is that of how to assess now the significance of the omission to introduce good character. The CPS file has gone missing, and it is therefore impossible to find out what attitude the prosecution legal team were taking, or would have taken, to the outstanding criminal charges relating to the passport and bank account. It is fair to say that the Judge below concluded on the basis of his own experience, that a good character direction would have been quite likely to result in an acquittal. What he did not address, however, was the issue of what the Crown would have done if Mr Nightingale had introduced good character.
26. It appears from the available note that Mr Kamar's wife made passing reference in the course of her evidence to the forged passport allegation. It thus seems that the matter was before the jury and, in summing up, they may have been given the impression that it was irrelevant. There might have been some inhibition, in those circumstances, for Mr Nightingale in introducing good character so as to minimise the impact of her allegations. To do so would have been misleading.
27. At the hearing below, Mr Nightingale was tendered but the opportunity to cross-examine him was not taken. Since Mr Nightingale has no recollection of the trial (although the Judge expressed some scepticism about that), and since it is not possible now to establish the attitude of those acting for the prosecution, it seems to be clear once again that there is real prejudice confronting Mr Nightingale. The Judge did not address this point either. It is true that he made reference to the passport charge, and said that the position was obscure, but he did not go on to work through the consequences of that for Mr Nightingale's prospective defence in the current proceedings.
28. For these reasons at least, it seems to me that the learned Judge's conclusions were flawed. Those were plainly relevant matters, both as to mental health and the impact of the pending criminal charges, which required to be weighed and taken into account in deciding what was equitable. The omission to deal with these matters, therefore, enables me to exercise the court's discretion afresh.
29. It is not possible to proceed on the basis that the passport offence or the banking offence would be admitted, since Mr Kamar relied on his privilege against self-incrimination below. I should therefore, assume that Mr Nightingale would be confronted with the additional hurdle of having to prove, at this distance of time, what the true position was in relation to those charges. He would have to do that without the assistance of the Crown prosecution file or the recollections of any of those directly involved at the time.
30. In my judgment, it seems clear that there is nothing to outweigh this prejudice. Mr Kamar was aware of his mental health problems all those years ago and could have consulted a doctor much nearer the time, with a view to assessing his chances of bringing proceedings for negligence. The delay was, as the Judge found, "culpable" and I can see no reasonable excuse for it in this case. He was removed from this country, as I have said, in or about March 1999 and had obvious inhibitions about returning. But that is not something which should redound to Mr Nightingale's disadvantage. The delay is long and largely unexplained.
31. Furthermore, the material now before the Court does not suggest that Mr Kamar's case on causation is especially strong, for the reasons already discussed. Any prejudice to him is thus correspondingly less: see e.g. Hartley v Birmingham City District Council [1992] 2 All ER 213, 224 d-e (Parker LJ).
32. There is an application on Mr Kamar's behalf for permission to cross-appeal. This was put on the basis that the learned Judge was wrong in his assessment of the date at which Mr Kamar became aware of his mental health problems. It is suggested that the correct date should have been when he saw Dr Lipsedge's report in March 2006. Mr Stewart, on the other hand, characterises this submission as "hopeless", since there is clear evidence that the Claimant was suffering from anxiety and depression in 1997 and 1998, and indeed also after he left this country in March 1999. He therefore clearly had sufficient knowledge and was attributing his problems, at least in part, to being in prison and, after his conviction, to the fact that he was going to stay in prison for a long time to come.
33. My attention was drawn in this context to the decision of the Court of Appeal in North Essex District Health Authority v Spargo [1997] 8 Med LR 125 and, in particular, to the words of Brooke LJ at pp. 129 and 131. In short, Mr Stewart submits that it would not be right to conclude that Mr Kamar needed advice from a doctor in order to set up the case that he now seeks to bring.
34. In the result, I refuse permission for the cross-appeal and allow the appeal.