One question which I am frequently asked as a specialist in claims against the Police is the following-
When is it too late to sue the Police?
The answer to that question is highly dependent on the nature of the proposed claim i.e. what is the wrong that you are saying the Police have done to you?
Generally speaking, claims against the Police are usually brought as ‘torts’ i.e. infringements of a person’s civil rights as defined by the age old, foundational common law of England and Wales, built upon by centuries of jurisprudence and case law and/or as claims under the newer layer of citizens’ rights and protections laid down by modern legislation such as the Human Rights Act 1998, Equality Act 2010 and the Data Protection Act 2018.
The main time limits for bringing a civil claim (‘bringing’ in this sense defined as being the last date on which a County Court or High Court action can be commenced) are as follows:-
- Claims brought under the common law – 6 years from the adverse event.
- Claims under the Data Protection Act – 6 years from the adverse event.
- Claims for breach of the Human Rights Act – 1 year from the adverse event.
- Claims under the Equality Act – 6 months from the adverse event.
The ‘adverse event’ from which the period of limitation runs is generally a matter of common sense – for example, the date that you were assaulted, or the date that you were wrongfully arrested. Sometimes however the expertise of a lawyer is required to identify the relevant date – for example, the limitation date in a claim for malicious prosecution is not the 6th anniversary of the commencement of the prosecution i.e. when you are charged but rather the 6th anniversary of the prosecution being terminated in your favour i.e. the date on which the prosecution is discontinued or you are acquitted at trial.
Further complexities in terms of defining the limitation ‘anniversary’ arise in cases which involve prolonged abuse, negligence or misfeasance over an extended period of time and there once again careful examination of the facts and evidence by a specialist solicitor is essential.
Special Rules for Children and Personal Injury Claimants
Other, very important, exceptions to the general rules as to limitation periods are as follows:-
- Under the terms of the Limitation Act 1980 (which governs limitation rules for common law rights in England and Wales i.e. tort law), the limitation period does not commence in the case of a child who has been injured or otherwise wronged until their 18th birthday. Likewise, the limitation period can be disapplied or suspended in the case of people lacking mental capacity.
- Furthermore, and very importantly, the 6 year limitation period for common law claims is reduced to only 3 years if the claim includes personal injury – as of course the majority of claims against the Police do, whether such injury is physical or mental.
What the Limitation Act takes away with one hand, however, it simultaneously grants with the other – because any personal injury tort claim, whilst being subject to a shorter limitation period on the face of it (3 years as opposed to the 6 years you would have if you were claiming for say property damage only or ‘pure’ loss of liberty without physical or psychological injury) is also subject to Section 33 of the Limitation Act, which grants the Court discretion to allow the claim to be brought years – and potentially even decades – ‘late’ provided there is a good reason for this and it is in the interests of justice to allow the claim to proceed. The relevant section of the Act provides as follows-
33 Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a)the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3)In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a)the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d)the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
This is in effect our justice system’s acknowledgment of the significance of personal injury claims as being damage caused to the core of a person’s being as opposed to merely their property or other external possessions/conveniences. In effect the Court, through the mechanism of Section 33, is saying that personal injury claims are so important and potentially so valuable that they should be brought within 3 years so that both parties to the litigation know what they are facing and can fairly and properly present their cases in a timely manner – but if, however, there is a good reason why the Claimant has not acted within 3 years then discretion can be granted for that claim to be brought well after the expiry of the 3rd anniversary of the adverse event.
It should be immediately obvious that one such good reason to ‘excuse’ delay relates directly to the effect which the injury has had in psychological terms upon the Claimant. In many cases the delay in a person bringing a claim arises from the very harm and shame that they have suffered as a result of the assault or other abuse of power perpetrated upon them. It is only right, therefore, that the doors of Court remain open for such people to be able to argue their case and to present arguments as to why their claim should not be automatically struck out through mere expiry of time.
In a similar vein to Section 33 of the Limitation Act, the Human Rights Act provides at Section 7 (5)(b) that the Court can allow proceedings to be brought for Human Rights infringements well after the ‘basic’ 1 year limit provided that the Court considers such an extension “equitable having regard to all the circumstances”. In any such exercise, similar factors to those discussed above will apply.
Limitation Law: A Case Study
A recent example of the complex interactions of limitation legislation in practice is Mr Justice Johnson’s Judgment in TVZ v Manchester City Football Club [2022] EWHC 7 (QB), in which rulings were made that sexual abuse claims brought by the victims of football coach Barry Bennell were not ‘out of time’ in principle, despite being brought around 35 years after the events, and that S.33 discretion to proceed would have been granted to the Claimants but for a separate point of law relating to Man City’s liability for Bennell’s actions, as they argued that he was not employed by the club at the relevant time (1980- 85), and it was that uncertainty as to Bennell’s relationship with City which ultimately defeated the claims.
Cited with approval in the TVZ judgment are the principles expounded by Sir Terence Etherton MR in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992 – namely, that the essence of the proper exercise of judicial discretion under Section 33 of the Limitation Act 1980 is a test of the ‘balance of prejudice’ and the burden is on the Claimant to show that his or her prejudice in not being allowed to pursue the claim would outweigh the prejudice caused to the Defendant. Sir Terence observed that this burden on the Claimant is “not necessarily a heavy one” and furthermore, that, whilst the ultimate burden is on the Claimant to show that it would be inequitable to disapply the statute, the burden in showing that the evidence adduced by the Defendant is likely to be less cogent because of delay is on the Defendant.
The Limitation Act is designed to protect Defendants from the injustice of having to fight ‘stale claims’ especially when any witnesses the Defendant might have been able to rely upon are not available, or have no recollection of events and/or there are no documents to assist the court in deciding what was done or not done and why. Sir Terence states “It is therefore particularly relevant whether and to what extent the Defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents……subject to considerations of proportionality …… the Defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount……” (6-7).
In the Carroll judgment Sir Terence Etherton further highlights that proportionality is material to the exercise of S.33 discretion and indicates that a claim that has strong prospects of success and is likely to give rise to substantial damages is one in which the court should lean towards granting permission to proceed.
There is also of note, as highlighted in para 195 of the TVZ judgment, the fact that sometimes delay can improve the evidence in relation to quantum i.e. “If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the Claimant’s future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment – it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact.”
I am currently fighting a case on behalf of a client who did not approach me until almost 19 years after she suffered abuse from a Lancashire Police officer who after arresting her, went on to seduce and in fact father a child upon her, all whilst she remained under criminal investigation. The officer’s abuse of my client caused her significant psychological harm, and indeed, rendered her the mother of a young child to whom she has had to devote a considerable proportion of her energies over the following 18 years in bringing to adulthood. Furthermore, although my client did not instigate a claim at the time of these events (2003/4) she did lodge a complaint with Lancashire Constabulary and the (then) Police watchdog the IPCC, which concluded that the officer had done wrong but which resulted only in half-baked assurances that the officer in question would be ‘prevented from attending women’s houses’ for the next 3 years. This is quite a time-capsule from another age, as today an officer committing such misdeeds would almost certainly face prison himself.
In other words, this is a claim in which there should exist written records from 2003/4 which provide clear evidence of what occurred, there is no doubt that the officer in question was employed by the Force AND there is a good reason for my client’s delay in bringing her civil action. My client has manifestly suffered psychological injury as a result of the outrageous abuse of power which she suffered, which has affected her self-esteem, confidence and ability to trust those in authority. Her delay in bringing this claim is therefore inextricably linked with the harm she has suffered.
Also of relevance to her claim is the observation of Lord Brown in A v Hoare [2008] UKHL 6 (paragraph 86) in which he favourably contrasted (for the purposes of disapplying the limitation period) a case where “A complaint has been made and recorded, and …… the accused has been convicted of the abuse complained of” with “a complaint [that] comes out of the blue with no apparent support for it……”
Navigating the Maze of Limitation Law
I have not attempted in this blog post to touch upon all of the different issues which can affect limitation periods and a person’s right to bring civil proceedings in England and Wales – indeed any attempt to do so would probably render this essay unreadable and/or counterproductive. There are very many overlapping claims in actions against the Police, which may well be operating under different limitation rules and have different caveats and exceptions applying to them, as I have briefly outlined above.
What is essential however is that people understand two things:-
- The primary right to claim under the Human Rights Act expires within a single year; very many claims for personal injury will be time barred after 3 years and therefore it is essential that you act quickly in seeking legal advice if you have suffered a wrong at the hands of the Police and generally within those time frames;
- However, even if you are beyond the 3rd anniversary of the incident – perhaps even several decades beyond it – it is never too late to seek expert advice from a specialist in actions against the Police such as myself.
So, in other words, act quickly in seeking to bring your claim – but never think that it must be too late, because in the right circumstances and with the right arguments, the right lawyer can find you a path through the maze of limitation, even many years after the event.
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