Ellam v Ellam

Factual and Procedural Background

This appeal arises from a judgment dated 3 April 2014, delivered by His Honour Judge Harris QC, sitting as a Deputy Judge of the High Court. The judgment concerned a preliminary issue on the limitation defence raised by the defendant, who was the respondent in the appeal. The defendant was the father of the claimant, who brought a personal injury claim for damages based on alleged persistent sexual abuse committed against her by the defendant between approximately 1974 and 1982, when she was aged between 6 and 14 years.

The claimant is one of five children born to the defendant and her mother. The family originally lived in the Oxford area before emigrating to Canada in 1974, where the defendant worked as a medical director at a hospital in Quebec. The claimant alleged repeated sexual abuse during her childhood, which the defendant denied, also asserting the claim was statute barred due to the passage of time.

Following family turmoil and domestic violence, the claimant and siblings were sent back to England in 1979 to live with the claimant's aunt. The claimant disclosed the abuse allegations to her aunt and social services became involved, with a social worker assigned to the case. Various reports and assessments by social workers and psychiatrists between 1979 and 1986 documented family difficulties, but no formal action was taken at that time. The claimant reached majority in 1986.

The claimant later gave evidence in divorce proceedings between her parents in 1991, where the defendant denied the allegations but the judge found the claimant's evidence credible and proved. The claimant first considered pursuing a claim against the defendant around 1993-1994 but delayed for various personal and family reasons.

In 2001, the claimant sought legal advice and was referred between solicitors. A letter before action was sent in 2004 but the defendant denied liability and asserted limitation. Following the House of Lords decision in A v Hoare (2008), which allowed for discretionary extension of limitation periods for intentional injury claims, the claimant instructed new solicitors in 2006 and formally pursued the claim from 2008 onwards. There were delays in obtaining medical expert reports and issuing proceedings, which were eventually commenced in 2012 and transferred to the High Court in 2013 for a preliminary trial on limitation issues.

The preliminary trial took place in March 2014, with judgment delivered in April 2014 dismissing the claim on limitation grounds and refusing to exercise the court's discretion to disapply the limitation period.

Legal Issues Presented

1. Whether the trial judge erred in the exercise of his discretion under section 33 of the Limitation Act 1980 by failing to consider properly whether a fair trial was still possible.
2. Whether the judge failed to consider the balance of prejudice between the parties in deciding whether to disapply the limitation period.
3. Whether the judge erred in not taking into account expert evidence regarding the claimant's delayed complaint due to the alleged abuse.
4. Whether the judge was wrong to find that the reasons for the claimant's delay in pursuing the claim were inadequately explained.
5. Whether the judge erred in treating the exercise of the discretion under section 33 as only appropriate in "exceptional cases."

Arguments of the Parties

Appellant's Arguments

• The judge applied the wrong test by focusing on whether it was fair for the defendant to face a trial rather than whether a fair trial was possible.
• The judge failed to weigh the balance of prejudice properly between claimant and defendant.
• The judge ignored the expert evidence from Professor Maden regarding the claimant's delay in making a complaint.
• The judge erred in concluding the reasons for the delay were insufficiently explained.
• The judge wrongly treated the discretion under section 33 as only to be exercised in exceptional cases, imposing an unduly high threshold.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent's legal arguments beyond the defence that the claim was statute barred and the judge's findings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stubbings v Webb [1993] AC 498	Established a six-year, non-extendable limitation period for deliberate assault claims, including sexual abuse, as trespass to the person.	Originally barred the claimant's claim before the decision in A v Hoare.
A v Hoare [2008] 1 AC 844	Held that section 11 and 33 of the Limitation Act 1980 apply to intentional injury claims, allowing discretionary extension of limitation periods.	Formed the basis for the claimant pursuing her claim post-2008 and consideration of section 33 discretion.
Sayers v Hunters [2013] 1 WLR 1695	Clarified the burden on claimant under section 33 is to show it is equitable to allow the claim despite limitation.	Quoted to define the general approach to the exercise of discretion under section 33.
KR v Bryn Alyn [2003] QB 1441	Described equitable relief under section 33 as an exceptional indulgence.	Used to support the principle that equitable relief is exceptional but fair.
Horton v Sadler [2007] 1 AC 307	Equitable means fair; the discretion under section 33 is broad and unfettered.	Supported the interpretation of the discretion as wide but requiring fairness to both parties.
Dobbie v Medway [1994] 2 WLR 1235	Statutory limitation rules encourage reasonable expedition and protect defendants from stale claims.	Referenced to emphasize policy reasons for limitation and fairness considerations.
Birkett v James [1997] 2 WLR 38	Emphasized the claimant's duty to proceed with due speed after delay.	Applied to criticize claimant's delays post-2008.
D v Nugent [2010] 1 WLR 516	Discussed the concept of "exceptional indulgence" in limitation cases.	Used to explain the judge's reference to exceptional cases in refusing discretion.
Cain v Francis [2009] QB 754	Outlined the test for fairness in exercising the discretion under section 33, balancing prejudice and reasons for delay.	Adopted to reject the appellant's argument that the judge failed to consider balance of prejudice properly.
B v Nugent Care Society [2010] 1 WLR 516	Considered the impact of lost witnesses and delay on the possibility of a fair trial.	Referenced in argument on importance of fair trial possibility.
Raggett v Society of Jesus [2010] EWCA Civ 1002	Considered factors relevant to fair trial in delayed sexual abuse claims.	Used in submissions concerning fair trial criteria.
Cave v Robinson Jarvis & Rolf [2003] 1 AC 384	Described the policy underpinning limitation statutes as protecting defendants from stale claims and promoting legal certainty.	Quoted in Lord Justice Lewison’s judgment to emphasize policy considerations.
Cholmondeley v Clinton (1820) 2 Jac & W 1	Established the principle of public utility in having a fixed time limit for litigation.	Referenced to support the importance of limitation periods for societal peace and certainty.
McDonnell v Walker [2010] CP Rep 14	Outlined the process for considering all circumstances under section 33.	Applied to confirm the correct approach to discretion exercised by the judge.
Das v Ganju [1999] PIQR 260	Addressed the consequences of delays attributable to solicitors in limitation contexts.	Considered in argument about attribution of delay to claimant’s advisers.
Thompson v Brown [1981] 1 WLR 744	Held that delay caused by advisers does not negate prejudice to the claimant.	Referenced to counter arguments that solicitor delay excused claimant.

Court's Reasoning and Analysis

The court analysed the exercise of discretion under section 33 of the Limitation Act 1980, which allows the court to disapply the limitation period if it is equitable to do so, having regard to specified factors. The judge’s approach, affirmed on appeal, involved a detailed consideration of the statutory criteria:

• The length and reasons for delay: The claimant’s explanations for delay, especially after 2008 when the law changed, were found unsatisfactory. The claimant’s focus on personal relationships was not a legitimate reason to defer proceedings indefinitely.
• The effect of delay on evidence: The judge acknowledged some loss of evidence and witness memory, balanced against the central allegations where memories likely remained clear. The absence of key witnesses and transcripts was noted as prejudicial to the defendant.
• The claimant’s promptness once aware of the claim: The claimant delayed significant periods before issuing proceedings, including over three years between instructing solicitors post-2008 and the first psychiatric appointment, and further delay until proceedings were issued.
• Steps taken to obtain expert advice: There was considerable delay in obtaining psychiatric reports, which impacted the progress of the claim.
• Whether a fair trial was possible: The judge considered both whether it was fair to have a trial at all after such delay and whether a fair trial could be conducted, concluding that the delay made it difficult to justify a trial.

The judge also considered the policy underpinning limitation periods, emphasizing the importance of legal certainty and protecting defendants from stale claims. The court rejected the appellant’s submission that the discretion should be exercised whenever a fair trial is possible, holding that fair trial possibility is necessary but not sufficient; the overall fairness to both parties must be considered.

The appellate court found no misdirection in law or error in the judge’s exercise of discretion. The judge properly weighed the balance of prejudice, addressed the statutory factors comprehensively, and did not err in declining to consider expert evidence not relied upon at trial. The delay was deemed excessive and inadequately explained, justifying refusal of the claimant’s application to disapply the limitation period.

Holding and Implications

The appeal is dismissed.

The court upheld the trial judge’s decision to refuse to exercise the discretion under section 33 of the Limitation Act 1980 to disapply the statutory limitation period. The claimant’s personal injury claim was therefore dismissed as time-barred. No new precedent was established; the decision affirms established principles that limitation periods serve to protect defendants from stale claims and that discretion to extend limitation periods requires equitable justification considering all circumstances. The ruling underscores the importance of prompt action once a claimant is aware of a cause of action and the necessity of providing satisfactory reasons for delay in limitation cases.