United Kingdom House of Lords Decisions

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

McDonnell (FC) (Appellant)

v.

Congregation of Christian Brothers Trustees

(formerly Irish Christian Brothers) and another (Respondents)

ON

THURSDAY 4 DECEMBER 2003

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hobhouse of Woodborough

Lord Rodger of Earlsferry

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

McDonnell (FC) (Appellant) v. Congregation of Christian Brothers Trustees (formerly Irish Christian Brothers) and another (Respondents)

[2003] UKHL 63

LORD BINGHAM OF CORNHILL

My Lords,

1.   The appellant seeks to recover damages against both respondents for physical, emotional and sexual abuse which he claims to have suffered at various times between 1941 and 1951. Under the statutory law in force at the time his claims became statute-barred on 6 January 1963. He contends that the effect of the Limitation Act 1963 or the Limitation Acts 1975 and 1980 was to remove that statutory bar to his claims. The issue at the heart of this appeal is whether that contention is in law correct or incorrect.
2.   This issue has been determined adversely to the appellant by Mackay J and also the Court of Appeal (Ward, May and Kay LJJ) [2001] EWCA Civ 2095. No evidence has been called and no findings of fact made. The appellant's allegations are strongly contested. The issue has been decided on the respondents' applications to strike out, for which purpose the appellant's allegations have been assumed, but not found, to be true.
3.   The appellant was born on 6 January 1936 and was shortly thereafter placed in the care of the London County Council. Between 1941 and January 1947 (aged 5-11) he was a boarding pupil at a school run by the second respondent. He complains that he was seriously abused, physically and emotionally, by members of the school staff during that period. Between January 1947 and 12 May 1951 (aged 11-15) he attended, again as a boarding pupil, a school run by the first respondent. During that period he complains of physical, emotional and sexual abuse by members of the school staff. He was not the subject of abuse after May 1951.
4.   The appellant issued these proceedings on 9 August 2000. He says that it was only in October or November 1997 that he decided to investigate the possibility of making claims against the respondents. This was the result of reading a newspaper article. Up to then he had felt unable to make a statement to solicitors to discuss his position with anyone. His case is that, in addition to the injuries suffered at the time of the abuse, he has suffered chronic psychiatric damage. For purposes of the issue now before the House it has been assumed that the appellant may be able to bring his case within sections 14 and 33 of the Limitation Act 1980 if, as he contends, those sections are potentially applicable to it. No claim is made against any of the alleged abusers personally.

The statutory history

5.   At the time of the alleged abuse, the governing statute was the Limitation Act 1939. Section 2(1) of that Act provided that an action founded on tort should not be brought after the expiration of six years from the date on which the cause of action accrued. But, by virtue of section 1 of the Act, that limitation had effect subject to the provisions of Part II of the Act providing for extension of the limitation period in case of disability. A person was deemed to be under a disability while he was an infant, that is, under the age of 21, then the age of majority. Section 22, in Part II of the Act, provided (so far as relevant for present purposes):
"22.  If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which the last foregoing section applies, one year from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired:

Provided that - …

(d)  this section, so far as it relates to the disability of infancy or unsoundness of mind, shall not apply to any action to which the last foregoing section applies, unless the plaintiff proves that the person under a disability was not, at the time when the right of action accrued to him, in the custody of a parent … ."

The reference in (d) to "any action to which the last foregoing section applies" was to the time limit of one year provided by section 21(1) for actions against public authorities. This one year time limit replaced the six month time limit laid down by section 1 of the Public Authorities Protection Act 1893.

6.   When the abuse of the appellant ceased in 1951, the cumulative effect of the provisions so far considered is plain. Any claim he had against the respondents lay only in tort and neither of them was a public authority. So the applicable limitation period was six years. But until 6 January 1957 he was an infant and time did not run against him. He was entitled to bring proceedings for six years after he ceased to be an infant, namely, at any time up to 6 January 1963, the date identified in paragraph 1 above.
7.   Following reports of a Departmental Committee on Alternative Remedies under the chairmanship of Sir Walter Monckton (1946) (Cmd 6860) and a Committee on the Limitation of Actions under the chairmanship of Lord Justice Tucker (1949) (Cmd 7740), the Law Reform (Limitation of Actions, &c) Act 1954 was enacted. This Act had two main objects. One was to remove the protection hitherto enjoyed by public authorities: claims against them were to be subject to the same limitation period as applied to claims against other defendants. The second was to shorten from six years to three the limitation period applicable "in the case of actions for damages for negligence, nuisance or breach of duty … 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 any person": see section 2(1). Section 2(2) made a corresponding amendment to section 22 of the 1939 Act: where running of time was deferred on account of disability, the extension in the specified categories of case was to be for three years also. It was further provided that the onus on a plaintiff relying on an extension on account of disability to prove that he was not, when the cause of action accrued, in the custody of a parent was to apply in all claims and not only to claims against public authorities: this was a necessary amendment since the distinction between public authorities and other defendants had been abrogated. Finally, notice should be taken of the transitional provisions (so far as material) in section 7 of the Act:
"(1)  The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later …

(3)  Save as aforesaid, nothing in this Act shall affect any action or proceeding if the cause of action arose before the passing thereof."

8.   The 1954 Act came into force on 4 June 1954, when the appellant was aged 18 and was therefore still subject to disability. His cause of action had arisen before the passing of the 1954 Act. It had not already expired because six years had not expired since his cause of action (in part) arose and he had the benefit of the six year disability extension from the age of majority under the unamended 1939 Act (and he had not, when his cause of action arose, been in the custody of a parent). If all the provisions of the 1954 Act had at all material times been in force his time for bringing proceedings would have expired three years after the age of majority. Thus the later of the alternative dates was applicable: his claims would still become statute-barred on 6 January 1963, and the 1954 Act thus made no difference to the time limit in his case.
9.   While section 26 of the 1939 Act made provision for postponement of the running of time in the case of fraud, fraudulent concealment or mistake, the Act made no comparable provision for a case in which a potential plaintiff was unaware, at the time of suffering injury or before expiry of the limitation period, that he had suffered any injury, or any significant injury, or that any link existed between the suffering of injury and the conduct of another. Since, on accepted principles, a cause of action in tort accrues on the suffering of damage, the possibility existed that a claim would be statute-barred before the victim became aware that he had any cause of action on which he could sue. This feature of the law was highlighted by the House of Lords' decision, affirming the judge and the Court of Appeal ([1962] 1 QB 189), in Cartledge v E Jopling & Sons Ltd [1963] AC 758. The original plaintiffs in that action were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of duty by their employers which contributed to their condition after 1 October 1950. The defendants pleaded that the claims were barred by the six year limitation period applied by section 2 of the 1939 Act. Lord Reid made it clear that he would have wished to hold (p 772)
"that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances".

But the House unanimously held that the 1939 Act and established authority precluded it from so holding.

10.   Even before the Court of Appeal decision in Cartledge, a committee had been appointed under the chairmanship of Mr Justice Edmund Davies
"to consider and report whether any alteration is desirable in the law relating to the limitation of actions in cases of personal injury where the injury or disease giving rise to the claim has not become apparent in sufficient time to enable proceedings to be begun within three years from the inception of such injury or disease".

It is unnecessary for present purposes to examine the detail of the committee's report (Report of the Committee on Limitation of Actions in Cases of Personal Injury) (Cmnd 1829), which was published in September 1962, before the House of Lords' judgment. The committee recommended "some relaxation of the three-year rule" (paragraph 44(a)) and proposed that an injured person who had obtained the leave of the court (paragraph 44(c))

"should not be liable to have his claim defeated by the operation of the Limitation Act if he satisfies the court that —

(i)  he could not reasonably have been expected to discover the existence or cause of his injury in time to start proceedings within the limitation period; and

(ii)  he has started those proceedings within twelve months of the earliest date on which he could reasonably have been expected to make that discovery".

11.   Broad effect was given to the recommendations of the committee by the Limitation Act 1963. Section 1 of the Act laid down what came to be known as the "date of knowledge" test. So far as material the section provided:
"(1)  Section 2(1) of the Limitation Act 1939 (which, in the case of certain actions, imposes a time-limit of three years for bringing the action) shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which -

(a)  the court has, whether before or after the commencement of the action, granted leave for the purposes of this section, and

(b)  the requirements of subsection (3) of this section are fulfilled.

(2)  This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(3)  The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -

(a)  either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period, and

(b)  in either case, was a date not earlier than twelve months before the date on which the action was brought."

The Act contained transitional provisions in section 6 which so far as relevant for present purposes read:

"(1)  Subject to the following provisions of this section, the provisions of this Part of this Act (other than section 4 thereof) shall have effect in relation to causes of action which accrued before, as well as causes of action which accrue after, the passing of this Act, and shall have effect in relation to any cause of action which accrued before the passing of this Act notwithstanding that an action in respect thereof has been commenced and is pending at the passing of this Act. …

(3)  For the purposes of this section an action shall not be taken to be pending at any time after a final order or judgment has been made or given therein, notwithstanding that an appeal is pending or that the time for appealing has not expired; and accordingly section 1 of this Act shall not have effect in relation to a cause of action in respect of which a final order or judgment has been made or given before the passing of this Act."

Attention was drawn in argument to section 7(2)(a) of the Act, which was to this effect:

"(2)  In this Part of this Act any reference to the three-year period relating to a cause of action is a reference to the period of three years from the date on which that cause of action accrued:

Provided that -

(a)  in relation to any cause of action in respect of which, by virtue of section 22 of the Limitation Act 1939 (which relates to persons under a disability), an action could have been brought after the end of the period of three years from the date on which that cause of action accrued, any reference in this Part of this Act to the three-year period relating to that cause of action shall be construed as a reference to the period up to the end of which an action could, by virtue of that section, have been brought in respect thereof."

Section 15 of the Act provided:

"Except in so far as the context otherwise requires, any reference in this Act to an enactment shall be construed as a reference to that enactment as amended or extended by or under any other enactment".

12.   Following a report of the Law Commission in October 1970 (Cmnd 4532), the Law Reform (Miscellaneous Provisions) Act 1971 lengthened from 12 months to three years the period within which, after the date of knowledge, a plaintiff might seek leave to bring proceedings.
13.   For reasons which need not be explored in this opinion, the 1963 Act date of knowledge test gave rise in practice to difficulties of interpretation and application. The Law Reform Committee under the chairmanship of Lord Justice Orr, already invited to consider the law of limitation generally, was asked to give priority to consideration of limitation in personal injury claims. This committee, having received evidence from bodies representative of employees' and also employers' and insurance interests, reported in May 1974 (Cmnd 5630) and recommended various refinements to the date of knowledge test as previously enacted. It also proposed certain procedural changes of which the most important were abolition of the requirement that a plaintiff seeking to sue after expiry of the standard limitation period obtain leave and conferment of a discretion on the court to override a defence of limitation notwithstanding that the plaintiff had not sued within three years of his date of knowledge. In Part VIII of its report the committee considered transitional problems and having reviewed the 1939 and 1954 Acts said (footnotes omitted):
"144.  Parliament adopted a different approach in the Act of 1963. That Act accorded the benefit of the relaxation of the strict three-year period to a plaintiff whose cause of action had accrued before it came into force irrespective of whether, under the pre-existing law, it was already statute-barred and irrespective of whether proceedings had already been commenced. The Act did not, however, apply to a claim which had, by the date it came into force, proceeded to judgment at first instance.

The Act of 1971 followed this precedent.

145.  From the way recent legislation has been framed, it appears that Parliament has been ready to accept the proposition that, as far as personal injury claims are concerned, a change in the law of limitation should, if beneficial to plaintiffs, apply notwithstanding that the relevant cause of action arose before the change in the law and notwithstanding that by then the plaintiff's claim was, under the old law, already statute-barred. Parliament has not, however, gone so far as to approve a measure of retrospection which would enable a judgment or settlement to be upset because of the change in the limitation period."

14.   The legislative response to the Law Reform Committee's report was the Limitation Act 1975. This enacted the refined date of knowledge test and the procedural changes recommended by the committee. The new discretion was provided by a new section 2D inserted into the 1939 Act. Relevantly for present purposes, section 1 of the 1975 Act inserted a new section 2A into the 1939 Act. Subsection (1) and (2) of section 2A were to this effect:
"(1)  This section applies to any action for damage for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2)  Section 2 of this Act shall not apply to an action to which this section applies."

Section 2 of the 1975 Act made corresponding changes applicable to those under disability. Section 3(1) contained a transitional provision:

"(1)  The provisions of this Act shall have effect in relation to causes of action which accrued before, as well as causes of action which accrue after, the commencement of this Act, and shall have effect in relation to any cause of action which accrued before the commencement of this Act notwithstanding that an action in respect thereof has been commenced and is pending at the commencement of this Act."

The Limitation Acts were consolidated by the Limitation Act 1980, which did not amend the law. The date of knowledge test was laid down in section 14 of this Act, the discretionary exclusion of the limitation period in section 33. Paragraph 9(1) of Schedule 2 to the Act provided that:

"Nothing in any provision of this Act shall -

(a)  enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date."

The "relevant date" for purposes of this provision was August 1980.

15.   Save in an inaccurate footnote reference on page 16 of its 1974 report, the Law Reform Committee made no mention of the Court of Appeal's earlier decision in Knipe v British Railways Board [1972] 1 QB 361. In that case the plaintiff suffered an injury in March 1948. It turned out to be a more serious injury than he had at first thought and in January 1970, having obtained leave under the 1963 Act, he issued proceedings. The defendants argued that his claim was statute-barred because the requirements of section 2(1) of the 1963 Act were not fulfilled. But he succeeded at first instance and in the Court of Appeal. In an unreserved and (on this question) frugally reasoned judgment, Lord Denning MR held (at p 369), in reliance on section 15 of the 1963 Act and despite the absence of argument on the point, that no distinction was to be drawn between cases coming within the three-year period of limitation after 1954 and cases coming within the six-year period of limitation before 1954. Sachs LJ did not allude to this possible distinction. Stamp LJ agreed.
16.   In Arnold v Central Electricity Generating Board [1988] AC 228 the plaintiff sued as widow and administratrix of the estate of her deceased husband. He had worked from April 1938 to April 1943 for a public authority to which the CEGB was the successor. During that period, it was claimed, he had been exposed to asbestos dust as a result of his employer's negligence and breach of duty. In 1981 he was found to be suffering from mesothelioma, said to be a long-delayed result of his exposure, and he died of this disease in May 1982. Proceedings were issued in April 1984. It was common ground that any cause of action the deceased may have had was barred by section 21 of the 1939 Act one year after his employment had ceased, namely in April 1944. The issue was whether the 1963 Act or the 1975 Act had had the effect of enabling the widow to sue despite this time bar, whether (in other words) one or other or both of those Acts had had the effect of reviving the deceased's cause of action. This was tried as a preliminary issue.
17.   Mr Michael Ogden QC, sitting as a deputy judge of the Queen's Bench Division, resolved the issue in favour of the widow. He referred to Knipe, by which he was of course bound, and bore in mind the Privy Council judgment in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 563, where Lord Brightman (on behalf of the Board) said:
"an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable."

Earlier in his judgment, at p 558, Lord Brightman had referred to a common law "prima facie rule of construction" to similar effect. Construing section 2A(1) of the 1939 Act, inserted by section 1 of the 1975 Act, Mr Ogden saw no reason (p 236) why he should "interpret section 2A(1) as not applying to actions involving public authorities, including public authorities who, prior to 1975, if not 1963, had accrued rights."

18.   In the Court of Appeal the leading judgment, with which Sir John Donaldson MR and Nicholls LJ agreed, was given by Ralph Gibson LJ. Having carefully reviewed the legislative history, he said (pp 247-248):
"What was the effect of the Act of 1963 on rights to plead a time bar previously accrued under limitation provisions which were in force immediately before the passing of the Act of 1963 or which had been repealed in 1954, such as section 21 of the Act of 1939? No express words were used to state a legislative intention to deprive any person of such an accrued right. Nevertheless, it is, in my view, clear that that purpose was intended and achieved to an extent and the question is to what extent. The Act of 1963 did not merely repeal limitation provisions and enact new limitation provisions, as did the Act of 1954 or the Malaysian statute considered in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 had done, but enacted new provisions to be applied to continuing limitation provisions in a particular category of action, namely, personal injury and fatal claims, and then only if the new special requirements were satisfied. By section 6 the new provisions were made to have effect in relation to 'any cause of action which accrued before the passing of this Act' and it is not possible in my view to regard those words, considered in the context of the whole of the Act of 1963, as not including causes of action in respect of which a right to plead a time bar had already accrued.

By providing that section 1 of the Act 'shall have effect' in relation to any cause of action which accrued before the passing of the Act, including a cause of action in respect to which a right to plead a time bar has accrued, Parliament demonstrated an intention to interfere with such rights retrospectively for the purpose of this Act but such rights will only be affected if they are caught by the words of section 1 itself. What effect on what accrued rights of this nature is section 1 shown to have had?"

The Court of Appeal, like the deputy judge, was bound by Knipe, although (p 251) it criticised Lord Denning's reasoning, and it held that neither the 1963 Act nor the 1975 Act had deprived the defendant of its right to rely on the statutory bar which had accrued to it under section 21 of the 1939 Act in April 1944.

19.   In the House of Lords the leading opinion was given by Lord Bridge of Harwich and the other members of the House (Lord Fraser of Tullybelton, Lord Brightman, Lord Ackner and Lord Oliver of Aylmerton) agreed with him. At p 265 Lord Bridge defined the issue:
"Thus the critical question to be determined in this appeal is whether anything in the series of statutes dealing with limitation of actions leading up to the 1980 consolidation, each of which was passed to ameliorate aspects of the law believed to operate unjustly, has had the effect of removing retrospectively the bar to the widow's action which accrued to [the defendant's predecessor] pursuant to section 21 of the Act of 1939."

Lord Bridge (p 268) thought it

"beyond question that the Act of 1963 operated retrospectively, when the appropriate conditions were satisfied, to deprive a defendant of an accrued time bar in respect of a claim for damages for personal injuries in which the cause of action had accrued since 4 June 1954 and which had, therefore, been subject to the three year period of limitation introduced by the Act of 1954. This is the combined effect of the relevant provisions of sections 1, 6 and 15 …".

He continued (pp 269-270):

"In considering what, if any, further retrospective operation in depriving defendants of accrued time bars can be ascribed to any provision in the Act of 1963, I find it quite unrealistic to examine in isolation the special case of the cause of action in a claim for damages for personal injuries which accrued before 1954 against an authority entitled to the protection of section 21 of the Act of 1939 without considering at the same time the case of a pre-1954 cause of action in a personal injury claim accruing against an ordinary defendant and subject therefore to the six year period of limitation prescribed by the unamended section 2(1) of the Act of 1939. The point that most troubled me in the course of the argument was what, as it seemed to me, would be the absurdity of attributing to the legislature an intention to give retrospective effect to the new limitation provisions so as to deprive an ordinary defendant of the right to rely on a time bar accrued under the unamended provisions of the Act of 1939 but at the same time to leave intact the defence of a public authority acquired by virtue of the special position that public authorities previously enjoyed under section 21 of the Act of 1939 in regard to limitation of actions. The philosophy which was once thought to justify the distinction between public and private defendants in this regard had fallen wholly into disrepute when the distinction was swept away in 1954, and, so far as I am aware, has never subsequently regained any reputable currency. Hence, if the distinction was reintroduced in relation to the retrospective operation of the Act of 1963, it surely can only have been by some accident of inadvertent draftsmanship. It is for this reason that I should strive to avoid construing the Act as effecting such a distinction unless plainly compelled by its language to do so."

Thus the decision of the House rested (see also p 270 E-G) on the premise that no relevant distinction was to be drawn between the pre-1954 public authority time bar and the pre-1954 six year time bar. Lord Bridge echoed (pp 270, 275) the Court of Appeal's criticism of Knipe and expressed his conclusion in a passage which, despite its length, I must quote (pp 274-275):

"To my mind the key question is to determine the extent to which section 3 of the Act of 1975 was intended to give retrospective effect to the earlier sections embodied by way of amendment of the Act of 1939. It will have been observed that section 3(1) and (2) of the Act of 1975 use the same terms as section 6(1) and (3) of the Act of 1963. This correspondence adopts precisely the Law Reform Committee's recommendation in paragraph 147 of their report. Reliance is placed on this by the counsel for the widow, but, by itself, it seems to me a neutral factor. It is clear that, for the same reasons as I have expressed earlier in relation to section 6 of the Act of 1963, section 3 of the Act of 1975 was intended to have some retrospective effect. If the Act of 1975 had been the next relevant statute immediately following the Act of 1954 without the intervening Act of 1963, I should have taken precisely the same view of its effect as that expressed by Mr Ogden QC. In those circumstances, section 21 of the Act of 1939 having already been repealed, there would, as I think, have been no effective counter to the argument that the generality of the language of the new section 2A of the Act of 1939 in the light of the retrospective effect given to it by section 3 of the Act of 1975, had swept away all time bars in personal injury actions previously acquired since 1939, leaving all causes of action accruing since that date to be determined by the application of the new statutory provisions.

But it must be legitimate and necessary to construe the Act of 1975 in the light of the preceding legislative history. To give full effect to the remedies which the Law Reform Committee proposed in order to correct the defects which they discovered in the operation of the regime for the limitation of personal injury actions under the Act of 1963 as amended by the Law Reform (Miscellaneous Provisions) Act 1971 it was clearly necessary, for the reasons they explained in paragraphs 137-146 of their report, to embody in the new statute transitional provisions giving the benefit of the new regime to plaintiffs whose causes of action had accrued during the period governed by the preceding regime, i.e. at any time between 1954 and 1975. Thus, plaintiffs whose causes of action had accrued between those dates would be entitled, where appropriate, to the exercise of the court's discretion under section 2D of the Act of 1939, they would not require the leave of the court to sue and their date of knowledge would be determined under the provisions of section 2A(6) to (8). All this was an essential part of curing the defects which the Law Reform Committee had exposed in the state of the law as they found it. But there is not the slightest hint in the report that the extent of the retrospective operation of the Act of 1963 was an aspect of the law calling for any remedial action. It is in this negative sense that the report seems to me to give support to the case for the board.

Consistently with the presumption that a statute affecting substantive rights is not to be construed as having retrospective operation unless it clearly appears to have been so intended, it seems to me entirely proper, in a case where some retrospective operation was clearly intended, equally to presume that the retrospective operation of the statute extends no further than is necessary to give effect either to its clear language or to its manifest purpose. Construing sections 2A to 2D of the Act of 1939 in the light of section 3 of the Act of 1975, I think that full effect is given both to the language and to the purposes of the legislation if it is held retrospectively applicable to all personal injury actions previously governed by the three year limitation period under the Act of 1954, whether as then enacted or as amended by the Act of 1963. Conversely, I can find nothing in the language or discernible purposes of the statute which leads clearly, let alone unavoidably, to the conclusion that defendants previously entitled to rely on the accrued six year and one year time bars under the original Act of 1939 which the Act of 1963 left intact were intended to be deprived of those accrued rights by the Act of 1975."

Like Ralph Gibson LJ (p 256), Lord Bridge (p 275) thought it would have been a surprising consequence of the Act of 1975 if it had deprived the defendant of an accrued right which, on their view of the true effect of the Acts of 1954 and 1963, had remained unimpaired for the 31 years from 1944 to 1975.

20.   In her sustained argument on behalf of the appellant, Miss Gumbel QC advanced a series of arguments relating to the decision of the House in Arnold. First, she challenged the view expressed by Lord Bridge (p 271) that Parliament's intention when legislating in 1963 was not necessarily to be assumed to have been shaped by the particular facts of the Cartledge case [1963] AC 758 when considering how far the new statute should operate retrospectively. That conclusion, she argued, had been reached without reference to Hansard, and such reference showed that Parliament had intended to rectify the defect in the law exposed by Cartledge. I make two observations on this submission. First, I would need much persuasion that it would, save possibly in exceptional circumstances, be proper for the House to depart, in reliance on material derived from Hansard, from an authoritative ruling on a point of statutory construction reached at a time when such material was not regarded as a permissible aid to construction. Secondly, having somewhat reluctantly considered, de bene esse, the parliamentary material tendered by Miss Gumbel, I find it wholly inconclusive. It is, of course, clear beyond argument that the object of the 1963 Act was to remedy what the Cartledge case vividly exposed as a source of injustice. In that sense Miss Gumbel is certainly right. But that leaves open the question, to which none of the Hansard quotations was directed, whether the remedial legislation was intended to override an accrued statutory time bar to pre-1954 six-year claims or only to post-1954 three-year claims. That question was not addressed.
21.   Miss Gumbel's second submission was that the appellant's case is distinguishable from Arnold. That (she said) was a narrow case turning on section 21 of the 1939 Act. The appellant's claim, unlike that in Arnold, was not statute-barred when the 1954 Act was passed. Arnold, it was argued, only applies to claims statute-barred when the 1954 Act came into effect. I have, again, two observations. First, although the House could in Arnold have confined its attention to section 21, it did not do so. For reasons given by Lord Bridge, the House thought it necessary to consider the retrospectivity issue in the context of pre-1954 six year claims as well as in the context of section 21, and it plainly intended its reasoning to be determinative. Secondly, while accepting the differences between Arnold and the present case on which Miss Gumbel relied, I find nothing in the reasoning of Lord Bridge to suggest that this should lead to a different outcome. It so happens that, because of disability, the appellant had under the 1939 Act a period of nearly 12 years after the end of the abuse in which to pursue a claim, and this period straddled the passing of the 1954 Act. But it was, although deferred, a six year claim, and the House held in Arnold that the 1963 and 1975 Acts did not operate to overcome an accrued limitation defence in such cases.
22.   Miss Gumbel submitted, thirdly, that the words in section 7(2)(a) of the 1963 Act, "an action could have been brought after the end of the period of three years from that the date on which that cause of action accrued", could properly be understood as covering any period after the end of three years, including a period of six years. I agree: read in isolation, the words could be so understood. But the terms of reference of the Edmund Davies Committee made express reference to three years. In summarising the effect of section 2(1) of the 1939 Act, section 1(1) of the 1963 Act described it as imposing a time limit of three years for bringing an action. In defining the date of knowledge test, section 1(3) of the 1963 Act referred to facts of a decisive character outside the knowledge of the plaintiff until a date which "(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period". There is ground for concluding that Parliament was focusing on three-year and not six-year claims.
23.   Fourthly, Miss Gumbel contended that, if Arnold was rightly decided in relation to the effect of the 1963 Act on six-year claims, the 1975 Act nonetheless had the effect of overriding the statutory bar on such claims. Miss Gumbel relied on the broad and unqualified language of the new section 2A inserted by section 1 of the 1975 Act ("any action for damage for negligence, nuisance or breach of duty"), on the absence of references (as in the 1963 Act) to the three-year period and to the construction which Lord Bridge would have given the 1975 Act had it been the next relevant statute immediately following the 1954 Act without the intervening 1963 Act (see p 274 of Arnold). The problem for the appellant is that the 1975 Act did in fact follow the 1963 Act, and that Act has been construed as not overriding an accrued statutory bar to six-year claims. There is moreover nothing in the Law Reform Committee's 1974 report, to which the 1975 Act gave effect, to suggest any intention to go further than the 1963 Act had done, by overriding accrued statutory bars to pre-1954 six-year claims. The committee's repeated reference to insurance considerations (see paragraphs 27(3), 31 and 57 of the report) makes such an intention a little unlikely.
24.   I would accept that a different conclusion might have been reached by the House in Arnold. The provision in section 1(1) of the 1963 Act that section 2(1) of the 1939 Act "shall not afford any defence" could, as Miss Gumbel argued, have been interpreted more expansively. The decision has been the subject of measured but penetrating criticism by McGee in the Statute Law Review 1988, pp 130-134 and Limitation Periods, 3rd ed (1998), pp 8-13. It is arguably anomalous to treat six-year and three-year claims differently, since if a cause of action expires before a plaintiff can reasonably be aware of it the potential injustice is as great in the one case as in the other. But Arnold was a unanimous decision of the House which has now stood for 16 years. It may doubtless have been relied on and applied to defeat other claims. Parliament could, if it wished, have reversed the decision, but has not done so. The decision is not plainly wrong, even if one were inclined to disagree with it, and the House has made plain that "It requires much more than doubts as to the correctness of [a considered majority opinion of the ultimate tribunal] to justify departing from it" (Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349). Sympathy for the possible injustice suffered by the appellant must be tempered by recognition of the almost impossible task the respondents would face in seeking to resist a claim of this kind after the lapse of half a century.
25.   Had she succeeded in her main arguments summarised above, Miss Gumbel would have wished to contend that the decision of the House in Stubbings v Webb [1993] AC 498 presented no insuperable obstacle to the appellant's claim as it is or could be formulated. In the event, the House did not find it necessary to invite argument on this point. It would seem to me that the point is arguable, but I think it undesirable to express any opinion on it, one way or the other, in a case where a decision is not called for.
26.   In my opinion the judge and the Court of Appeal reached the right conclusion, for very much the reasons I have given. I would therefore dismiss the appeal.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

27.   I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I agree, I too would dismiss this appeal.

LORD STEYN

My Lords,

28.   I have read the opinion of my noble and learned friend Lord Bingham of Cornhill. For the reasons he has given I would also dismiss the appeal.
29.   I would, however, add a comment on the attempt in this case to rely on statements made in Parliament. It is permissible to use Hansard to identify the mischief at which a statute is aimed. It is, therefore, unobjectionable to use ministerial and other promoters' statements to identify the objective background to the legislation to the extent that Pepper v Hart [1993] AC 593 permits such use of Hansard the point is uncontroversial. A difficulty has, however, arisen about the true ratio of Pepper v Hart. It is certainly at least authority for the proposition that a categorical assurance given by the government in debates as to the meaning of the legislation may preclude the government vis-à-vis an individual from contending to the contrary. This may be seen as an estoppel or simply a principle of fairness. This view of Pepper v Hart restricts its ratio to the material facts of that case. There is, however, a possible broader interpretation of Pepper v Hart, viz that it may be permissible to treat the intentions of the government revealed in debates as reflecting the will of Parliament. This interpretation gives rise to serious conceptual and constitutional difficulties which I summarised elsewhere: "Pepper v Hart: A Re-examination" (2001) 21 OJLS 59. In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2003] 3 WLR 568, 586, para 59, Lord Nicholls of Birkenhead discussed this distinction. In my view the narrower interpretation of Pepper v Hart ought to be preferred.
30.   In my view counsel for the appellant sought to use material from Hansard for an illegitimate purpose in the present case.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

31.   I agree with the Opinion of Lord Bingham of Cornhill. Accordingly I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    

32.   I have had the privilege of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it and, for the reasons which he gives, I too would dismiss this appeal.