Rowe v Kingston-Upon-Hull City Council & Anor [2003] EWCA Civ 1281

Case No A2/2003/0811

[2003] EWCA Civ 1281

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(His Honour Judge Anthony Thompson QC

sitting as a Deputy High Court Judge)

Venue Royal Courts of Justice

Date Thursday, 24th July 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE MUMMERY

LORD JUSTICE KEENE

Between

NICHOLAS DARREN ROWERespondent

-v-

Between

KINGSTON-UPON-HULL CITY COUNCILAppellant

ESSEX COUNTY COUNCILAppellant

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR ROSS QC (instructed by Praxis Partners, Leeds LS3 1AB) appeared for Appellants.

MR IYER (instructed by Messrs Hayes & Storr, Norfolk NR21 9BH) appeared for Respondent.

J U D G M E N T

Thursday, 24th July 2003

J U D G M E N T

LORD JUSTICE MUMMERY:

[1]I will ask Keene LJ to give the first judgment.

LORD JUSTICE KEENE:

[2]This appeal raises issues under sections 14 and 33 of the Limitation Act 1980. It is the defendants' appeal from a decision of his Honour Judge Anthony Thompson QC, sitting as a judge of the High Court, on 26th March 2003. It had been ordered that the question of limitation be tried as a preliminary issue. The judge held that the claim, which was one essentially in negligence, was not statute-barred and that even if it had been he would have exercised his discretion under section 33 to disapply the otherwise applicable time limit on the claim.

[3]The claimant, Nicholas Darren Rowe, was born on 2nd October 1974. From the age of five in 1979 he was educated in schools in Hull for which the first defendant was the responsible education authority. This continued until September 1989, when he and his parents moved to Essex. There he attended a school for which the second defendant was the responsible authority. That lasted for a period of two years.

[4]Towards the end of that period, in March 1991, as a result of his parents taking him privately to see an educational psychologist, he was diagnosed as suffering from dyslexia. The trial

judge noted as follows:

"4. The fact that he was suffering from dyslexia came as no surprise to his parents who had believed that all along. His mother apparently is also dyslexic and there is no doubt that dyslexia is a congenital condition which can pass from one generation to another."

[5]On 2nd October 1992 the claimant reached his 18th birthday, at which point he ceased in the eyes of the law to be under a disability. Time therefore could begin to run, subject to the provisions of the Act as to the date of his knowledge. On 24th September 1998 the writ in these proceedings was issued, claiming damages against both education authorities. It had been preceded by a notification of claim to the defendants' solicitors in July 1998. The writ was served in January 1999.

[6]It seems clear that the claimant and his parents were prompted to go to see a solicitor in September 1997 by the High Court decision in the case of Phelps v Hillingdon London Borough Council

[1997] 96 LGR 1

. The judge there had held the education authority vicariously liable for the negligence of an educational psychologist employed by it in failing to identify that the plaintiff was severely dyslexic and failing to mitigate the adverse consequences. That High Court decision was reversed by the Court of Appeal but then restored subsequently by the House of Lords. That is reported at

[2001] 2 AC 619

. In particular, the House of Lords held that the psychologist had owed a duty of care to the plaintiff and had been in breach of that duty of care.

[7]The claim in the present case alleges that the teachers employed by the defendants failed to identify and to take steps to ameliorate his dyslexia and were thereby negligent, as a result of which he has suffered personal injury, loss and damage. There is no dispute between the parties that this is an action for damages in respect of personal injuries to the claimant to which the three-year time limit under section 11 of the 1980 Act applies. That time limit arises from the provisions of section 11(4) which, insofar as material for present purposes, states:

"... 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."

The "date of knowledge" is defined by section 14(1) as being a reference:

"... 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; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; And knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

[8]The judge below found no real difficulty with regard to knowledge of the matters set out in paragraphs (b), (c) and (d) of section 14(1), though in respect of (b) that was subject to the claimant's knowledge satisfying paragraph (a). It was, indeed, paragraph (a) that the judge was concerned about, with its requirement that the person know that the injury in question was significant. The judge described that as "the stumbling block" -- see paragraph 14 of the judgment.

[9]Section 14(2) is relevant to that. It provides:

"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 procedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."

[10]Section 14(3) states:

"For the purposes of this section a person's knowledge includes knowledge which 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 advice which it is reasonable for him to seek......."

[11]The judge in the present case found that the claimant did not know that he had suffered an injury "until the position was brought home to him by the decision of the court in the Phelps case" (paragraph 29 of the judgment). He rejected a submission on behalf of the defendants that all that the claimant did not know until the Phelps case in September 1997 was that he had a good case in law against the education authorities. That would not have assisted the claimant: see Dobbie v Medway Health Authority

[1994] 1 WLR 1234

and Robinson v St Helens Metropolitan Borough Council

[2002] ELR 681

. The judge emphasised the problems arising in a case such as this where the defendants had not caused the dyslexia itself, that being a congenital condition, and where their alleged breach of duty consists of an ommission to take remedial steps which could have mitigated the adverse consequences of that condition. Since the claimant did not know until the Phelps decision that he had suffered an injury, section 14(1)(a), said the judge, could not have been satisfied until then.

[12]The judge's reasoning on this point was clarified immediately after the delivery of the judgment at the request of the defendants' counsel, Mr Stagg, who sought to establish the judge's findings as to the extent of the claimant's knowledge. This is an important part of the judge's findings. I therefore quote from the relevant part of the transcript at pages 478 to 479 of the bundle: MR STAGG: ... I would like to ask for clarification of your Lordship's findings of fact on the claimant's state of knowledge. I believe, if I understood your Lordship's judgment correctly, that you have found that he knew before the age of 18 first that he was dyslexic. Secondly, that there were things that could be done to help him with his dyslexia. THE JUDGE: That he was not receiving remedial education treatment, yes. MR STAGG: And that he had not received things that could have helped him throughout his schooling. THE JUDGE: Yes. MR STAGG: Could I ask your Lordship to clarify that you have found those as facts? THE JUDGE: Yes, those are facts but his state of knowledge is that he did not know that he had suffered an injury." It is acknowledged on behalf of the respondent, the claimant below, by his counsel Mr Iyer that those passages indicate the state of the claimant's knowledge before the age of 18.

[13]On the basis of those findings, Mr Ross QC on behalf of the defendants submits that the judge could not properly find that the claimant did not know that he had suffered a significant injury by the time of his 18th birthday on 2nd October 1992, with the result that the three-year limitation period expired in October 1995, long before the issue of the writ in September 1998. It is contended that what a claimant has to know under section 14(1)(a) is that he has suffered an injury in fact, not that he has suffered something which amounted in law to an injury within the meaning of section 14(1). Since the claimant has been found to have known before his 18th birthday that he was dyslexic, that there were things which could have been done to ameliorate his condition and that the school had failed to do any of those things, paragraph (a) of section 14(1) was satisfied at that time. The injury, says Mr Ross, is the failure to ameliorate the condition's adverse consequences, and the claimant knew of that failure. All that the claimant did not know until the Phelps decision was that he had a potential cause of action against the education authorities, and that is irrelevant: see Robinson and see also the express statement at the end of section 14(1) that "knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty is irrelevant."

[14]On behalf of the claimant, Mr Iyer on this issue seeks to uphold the judge's reasoning. He accepts that the injury consists of the failure to mitigate the adverse effects of the dyslexic condition, but he contends that prior to the decision in Phelps a reasonable person would not have regarded this as being an injury for normal everyday purposes. Moreover, he relies upon

Article 6(1) of the European Convention on Human Rights

, which gives to the claimant a right to a fair trial. It is argued that section 14(1) should therefore be interpreted so that the limitation period does not begin to run until the date when the law first recognised such a claim by means of a decision in the courts. Otherwise the claimant's right of access to the courts is in reality impaired.

[15]Reliance is placed by Mr Iyer on section 3(1) of the Human Rights Act 1998 and the obligation therein on the courts to interpret legislation, "so far as it is possible to do so", so as to be compatible with Convention rights. It is contended that the closing words of section 14(1), to which I have just referred, would work an injustice in cases like this, because until the decision in Phelps one would not know that there was a cause of action. The essence of the claimant's right of access to the court would be impaired unless the statutory words are interpreted in the way now suggested. Mr Iyer recognises that the decision of this court in Robinson is against him, but he points out that the human rights argument was not raised in that case and therefore this court can depart from it. In addition, it is said that the claimant did not know that the injury was "significant", as is required by section 14(1)(a). The test is partly subjective and partly objective: see KR v Bryn Alyn Community (Holdings) Ltd

[2003] 3 WLR 107

. Here the claimant, it is said, would not reasonably have brought a claim prior to the decision in Phelps.

[16]In my judgment the parties were right to categorise this as an action where the damages claimed include damages in respect of personal injuries to the claimant so that the limitation period is one of three years. The damages that are claimed in the particulars of claim include general damages for pain and suffering and loss of amenity, and in very similar circumstances, this court in Robinson held the claim to be one for personal injury. The three-year time limit therefore applies.

[17]When one turns to the question of when the claimant knew that he had suffered the injury in question and that it was significant, that is to say the requirement contained in section 14(1)(a), it is to my mind of some importance to identify the injury. That is not easy in cases involving a congenital condition, like dyslexia, not caused by the defendants but where the defendants are alleged to have omitted to take appropriate steps to mitigate the effects of the condition. In Phelps [2001] 2 AC at 664E and G-H the House of Lords approved a passage from the judgment at first instance of Garland J where he had said:

"... I am prepared to regard 'injury' as including a failure to mitigate the adverse consequences of a congenital defect."

That approach was followed by this court in Robinson at paragraphs 21 and 46.

[18]With that in mind, one turns to when it was that the claimant in this case knew about that injury, the failure to mitigate the adverse consequences of his dyslexia. The judge's finding, as expressed at paragraph 29 of his judgment, was that he was unaware of it "until the position was brought home to him by the decision of the court in the Phelps case". If by that the judge meant that the claimant had not appreciated until then that his schools and his teachers could have done something to ameliorate his condition and indeed that his condition was capable of being ameliorated, then I would have seen the force of that reasoning. If he had not known until the Phelps decision that remedial action by his schools would have helped, then he would not have known a relevant fact, although it might have been categorised as much under paragraph (b) of section 14(1) as under paragraph (a).

[19]But the judge simply cannot have meant that. In the clarification which he provided at counsel's request at the end of his judgment, quoted earlier, he spelt out crucial findings as to what the claimant did know before his 18th birthday. Those were:(1) that he was dyslexic;

(2) that there were things which could have been done to help him throughout his schooling; and

(3) that those things had not been done.

[20]It seems to me that those findings, which are unchallenged by the claimant, amount to saying that the claimant was aware before his majority that there had been a a failure by the school to take steps which would have helped with his condition. That is an awareness of the injury which forms the basis of his claim, namely the continuation in an unameliorated form of his dyslexic condition when it could have been ameliorated. When the judge refers in his judgment to the claimant not knowing that he had suffered an injury, one can only conclude that the judge must have meant that the claimant was unaware until Phelps that he could sue the education authorities for it. But that is irrelevant, as both section 14(1) and Robinson make clear.

[21]The argument advanced by Mr Iyer that a reasonable person would not have regarded what the claimant had experienced as an injury until the Phelps case had been decided is mere semantics. The knowledge referred to in section 14(1) is of certain facts, not of whether in law those facts amount to an "injury". The claimant knew that he could have been helped by the education authorities and he knew that he had not been, with the result that his condition had not been ameliorated. That latter aspect is the injury, whether the claimant knew that it could be called an "injury" or not. All that he did not know prior to the Phelps decision and all that that decision added to his knowledge was that he might have a legal claim against the authorities. Had he known that he could have sued, then in my judgment a reasonable person in his position would have regarded what had happened as sufficiently serious for him to have brought proceedings against an education authority which did not dispute liability. That means he would have regarded it as a significant injury: see section 14(2).

[22]I do not accept that any breach of the claimant's Article 6 rights is involved in this approach to sections 11 and 14 of the Act. This contention about the European Convention was not raised below, but it is, in any event, misconceived. As the European Court of Human Rights has acknowledged in Stubbings v UK

[1996] 23 EHRR 213

, the right of access to the courts is not absolute but is one which can legitimately be regulated by the state. That is hardly surprising since time limits on the commencement of proceedings before the European Court of Human Rights itself are embodied in the Convention: see Article 35(1). What was made clear in Stubbings was that the restrictions on the right of access must not be such that the very essence of the right is impaired and, as usual with restrictions on Convention rights, that they pursue a legitimate aim and are proportionate.

[23]The provisions of the 1980 Act in respect of personal injury claims undoubtedly pursue a legitimate aim, namely that of esuring that defendants do not have to face stale claims: see paragraph 49 in Stubbings. The three-year time limit will only run from the date of the relevant knowledge if that is after the accrual of the cause of action, and the extent of the facts of which the claimant has to have knowledge before time runs, as set out in section 14(1), shows that the restriction imposed has been carefully considered and is proportionate. In Dobbie v United Kingdom (unreported) 28477/95, the European Commission of Human Rights concluded that the provisions of sections 11 and 14, together with the court's discretion under section 33, did not affect the "very essence" of the right of access to the courts. That is a conclusion with which I respectfully agree.

[24]The mere fact that a person may not realise that he has a good claim in law until a particular decision of the courts clarifies the situation provides no justification for interpreting the 1980 Act in other than the normal way. A claimant can always bring a claim to establish for the first time that he has a good cause of action. He is not prevented from obtaining access to the courts. Moreover, to do what the claimant advocates, namely to interpret section 14(1) of the Act so that the three-year period runs from the date when the law first recognised such a claim by means of a judicial decision, would bring into existence a host of stale claims, some of which could be 20, 30 or more years old, and so give rise to great unfairness to defendants. I therefore would reject the claimant's argument based on

Article 6(1) of the European Convention on Human Rights

. It follows that, on this first issue of when the claimant had the requisite knowledge under section 14, I would reverse the conclusion of the judge below. In my judgment the three year period in this case must have commenced when the claimant reached his majority, because he already had the requisite knowledge before that date.

[25]The other issue in this appeal concerns the judge's conclusion that he would, had it been necessary, have exercised his discretion under section 33 to disapply the three-year time limit. Such a discretion is recognised to be a broad and generous one. It is one with which this court will not interfere unless the judge has clearly gone wrong, or has misdirected himself, or has arrived at a conclusion at which no reasonable judge properly directing himself could have arrived. I proceed on that basis.

[26]Section 33(1) states as follows:

"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 11A 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."

[27]Section 33(3) is of particular relevance. It provides:

"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, by section 11A 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."

[28]The judge below spelt out the facts as alleged by the claimant and concluded that the claimant had a good, arguable case. He summarised what was being said by the defendants as to their difficulties in tracing any teachers who had taught the claimant. The defendants' solicitor, Mrs Lynn Watts, was quoted. In her witness statement she had observed that the letter before claim in July 1998 named no individual teachers as being at fault, and not until July 2002 was a full list of the claimant's teachers provided.

[29]Despite the efforts described, neither education authority haved been able to find any witness who could give direct evidence of the claimant's performance at school.

The judge commented as follows at paragraphs 44 and 45 of his judgment:

"44 I think it is obvious that the defendants and their solicitors are having difficulty in tracing witnesses and, of course, this is always the case but it seems to me there are obviously lines of enquiry which can be made. I do find it surprising that teachers, once they have left their authority, are difficult to trace. I would have thought if they are still teaching they would probably be traceable through their trade union or, possibly if they have retired, through Teachers' Pensions. However, those are the difficulties which the defendants are encountering. What is not clear from that is whether, if matters have been started earlier whether it would have made it any easier to have traced the teachers in question. One of the teachers who has been traced says that if he had been notified before he retired from teaching he might have been able to have found some documentation. 45 That then is the background against which I have to consider the various matters in question in relation to the check list in subsection 3. I do have in mind, of course, that I have to look at the whole of the delay and bearing mind that so far as the primary school is concerned that is going back a very long way indeed as the claimant was at primary school between 1979 and 1984, so there we are looking back over a period of about 20 years. Whether, if these proceedings had been started somewhat earlier, any record would have still been obtainable from the primary school must be a matter of conjecture. There is certainly nothing to indicate that if proceedings had been started within the primary limitation period, that is to say by October 1995, there would still have been some documentation from the primary school which the claimant had left some eleven years previously."

He then moved on to deal with the specific factors mentioned in paragraphs (a) to (f) of section 33(3), finding that the reason for the delay after the expiry of the limitation period in October 1995 was that the claimant had no idea that he could bring an action or had suffered an injury. He doubted under paragraph (b) whether the defendants would have been able to produce any evidence to show that they had addressed the claimant's problem. As for paragraph (e), the judge regarded the claimant as having acted promptly once he had heard about the Phelps case.

[30]The defendants now make a number of criticisms of this exercise of the judge's discretion. Three of them seem to me to have particular force: first and foremost, the approach to the question of the passage of time. The judge does acknowledge, formally at least, in paragraph 45 that he had to look at the whole of the delay. That flows from the fact that section 33(3) requires him to have regard to all the circumstances of the case. He then did refer specifically to the passage of time since the claimant attended primary school at Hull; but he immediately went on to deal with that by considering whether the defendants' position would have been any easier if proceedings had been started within the primary limitation period. That is not an answer to the problem which the passage of time as a whole causes to a defendant. It is not simply a question of contrasting the situation if the action had been started in October 1995 with the situation which came about with a start in September 1998, a period of just under three years. That leaves out of account the problem created, if the time limit is disapplied, of an action brought many years after the events in question.

[31]The judge's approach at the end of paragraph 45 would have been appropriate in relation to paragraph (a) of section 33(3), since that is the concerned with the delay since the expiry of the limitation period: see Donovan V Gwentoys Ltd

[1990] 1 WLR 742

. But it is not appropriate when dealing with the wider context to which the court must have regard under that subsection generally. As Lord Oliver of Aylmerton said in Donovan at page 479 to 480:

"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 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 of 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."

In my view the trial judge in the present case failed properly to adopt that approach. The same thing cropped up again at the end of his judgment at paragraph 58, where he said this:

"The Limitation Act is rightly there to protect defendants from dilatoriness on the part of claimants who do not get on with pursuing actions. It is quite right there must be an end to litigation but there is no suggestion here, and there can be no suggestion that there was dilatoriness on the part of this claimant unless one takes a wholly unrealistic and semantic approach and say that everyone is presumed to know the law when even the Court of Appeal clearly did not know the law before the House of Lords had pronounced upon it."

That was the final paragraph of his judgment. It leaves out of account the need to protect defendants against stale claims, which they would have great difficulty in defending simply because of the passage of time. What is relevant is not merely the question of whether the claimant has been dilatory or not or has been at fault or not. The court must also have regard to the wider context to which I have referred. The judge in this case failed to do that. In that respect the he erred.

[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.

[34]When all these matters are put together, I am satisfied that the judge here did misdirect himself in the exercise of his discretion and that his exercise of that discretion was plainly wrong. It follows that this court must exercise the discretion afresh.

[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: see Bryn Alyn at paragraph 71.

[36]Mr Ross for the defendants emphasises the very lengthy passage of time between the events in question and the issue of the writ: between 9 and 19 years in the case of the first defendant, and between 7 and 9 years in the case of the second defendant. He also draws attention to the real difficulties, which are already apparent, for the defendants in tracing witnesses. The particulars of claim made specific allegations against four named members of staff who were employed at the relevant time by the first defendant. Three of those cannot be traced, despite efforts to do so, and the fourth has no recollection of the claimant. None of the other teachers named in answer to a Part 18 request have been traced. The second defendant has been unable to trace any teacher who recollects teaching the claimant. There is no documentation at all in respect of the claimant's time in the infants school in the Hull area, and incomplete reports thereafter. Nor is there any documentation enabling a comparison to be made with the claimant's contemporaries, which would be important on the issue of whether the claimant should have been identified by teachers as having particular problems. Indeed, there is very little documentation about the claimant himself, there being only three school reports for the whole of the period when the claimant was being educated in Hull, a period of some 10 years.

[37]Mr Ross points out that, unlike in Phelps, there are no precise allegations here against an educational psychologist employed by the defendants. One would be dealing with allegations about the conduct of teachers at various times during a period when the educational system was in a state of flux and trying to decide whether there was negligence on their part.

[38]For the claimant Mr Iyer argues (it has to be said with great persuasiveness) that if section 33 is not brought into play his client would have no remedy against anyone. There is no potential claim against a solicitor or other professional person, and so the prejudice which he would suffer would be substantial. The delay since the expiry of the limitation period is unlikely to have had any significant effect on the defendants' difficulties. It is contended that the claimant acted promptly once he was aware of the decision in Phelps; and it is relevant to the exercise of discretion that the claimant did not appreciate until then that he had a cause of action. Mr Iyer argues also that there is powerful evidence of the claimant's learning difficulties which, because of their seriousness by the time he saw the educational psychologist in 1991, should have been evident earlier to his teachers. He therefore has a strong case against the defendants. Moreover, on proportionality it should be borne in mind, it is said, that there is evidence from the consultant psychologists establishing the adverse effects of the claimant's dyslexia on him, as a result of which he has no A-levels and no job. His claim, if successful, would be a substantial one. Consequently, says Mr Iyer, the balancing exercise done under section 33 should come down in favour of his client.

[39]In carrying out that exercise, I for my part recognise that if the time limit is not disapplied the claimant is likely to be deprived of a remedy, since there seems no prospect of him having a cause of action against anyone else. I accept that no solicitor or other professional adviser would seem to be liable, and in this respect the prejudice to the claimant from a refusal to exercise the powers under section 33 would be greater than sometimes, though not always, occurs in these cases. Having said that, it must also be borne in mind that limitation periods do of their very nature normally deprive potential claimants of their remedy. It is also relevant that this will not be an easy case to determine because of the passage of time. The judge below seems to have been strongly influenced by the claimant's evidence that his schools took no steps to deal with his dyslexia. But even if that is so, to establish negligence on the part of the defendants would require much more than that, since the claimant would have to prove that his teachers ought to have identified him as having this congenital condition in all the circumstances which existed in these schools at those times and that remedial measures ought then to have been taken. That would not be straightforward The difficulties about the standard of care issue in such circumstances were noted by the House of Lords in the Phelps case. As Mr Ross emphasised, the approach to learning difficulties in schools has changed significantly over the past two decades. What a teacher in the 1980s ought reasonably to have done would be a complex issue to resolve.

[40]I accept that it is relevant to the exercise of discretion that the existence of a duty of care in law may not be clearly established until a particular date. That, as I have indicated, is a point pressed by Mr Iyer. But as Mr Ross submits, the decision of the Court of Appeal in E v Dorset County Council (29th April 1994) showed at least that it was properly arguable that an education authority owed a duty of care for the acts or omissions of its teachers and psychologists in failing to ascertain learning problems and to provide help and advice to a pupil. That was April 1994, and yet no writ was issued in the present matter until September 1998, nearly four and a half years later. April 1994 indeed would have been within three years of the claimant reaching his majority, and so within the primary limitation period. I therefore do not regard the argument about development of the law as helpful to the claimant on this issue of discretion.

[41]I take account of the various matters urged on us by counsel and of the factors listed in section 33(3). But what seems to me to be of particular significance in this case is the substantial passage of time since the events in question and the extent of the difficulties which that passage of time seems likely to cause for the defendants, and especially for the first defendant. The writ in these proceedings was issued nine years after the latest time when the claimant attended the school in Hull, and the letter of claim shortened that nine-year period only by two months. The events, which would have to be examined in court, stretch back beyond that nine years to the time when he began his schooling in that area, 19 years before the issue of the writ. In those circumstances I do not find the serious difficulties being experienced by the first defendant in tracing witnesses in the shape of its teachers at all surprising. There is no reason why the evidence given by Mrs Watts about those difficulties should not be given credence. Not a single witness who taught the claimant while he was at school in Hull and still remembers him has so far been found. In those circumstances, the conclusion can only be that the passage of time has significantly impaired the first defendant's ability to defend itself. As Parker LJ said in Hartley v Birmingham City Council

[1992] 1 WLR 968

at 980A:

"What is of paramount importance is the effect of the delay on the defendants' ability to defend."

[42]It is right that there has been a shorter passage of time since the claimant was at school in Essex, although, as indicated earlier in this judgment, the second defendant is also patently experiencing real difficulties in tracing any relevant witness. Even in respect of the claim against the second defendant, there was still a period of about seven years between the claimant's time at an Essex school and the issue of the writ. But his claim against the second defendant has, in any event, a lesser prospect of success, since he was only at a school in that county for two years and only from the age of almost 15. Since there is expert evidence from one of the claimant's consultants that the earlier that learning difficulties are diagnosed the more chance there is of remedial measures being successful, it would be very difficult for the claimant to establish any causal link between any omission by that education authority, Essex County Council, and his dyslexic condition.

[43]In short, I have concluded that there is little prospect of a fair trial being achieved because of the handicaps under which these two education authorities would be operating were this action to be allowed to proceed. In my judgment, the claimant has failed to discharge the burden resting on him under section 33, and I for my part would not exercise my discretion so as to disapply the three-year time limit because it would not be equitable to do so.

[44]I therefore would allow this appeal and hold that this action is statute-barred.

LORD JUSTICE MUMMERY: I agree. I would add only a short comment on the submissions made by Mr Iyer in reliance on section 3 of the Human Rights Act 1998 and its effect on the interpretation of section 14(1) of the Limitation Act 1980.

[46]It is important to note that Mr Rowe's cause of action in this case is alleged to have arisen before the Human Rights Act came into force on 2nd October 2000. Although no retrospectivity point has been taken on behalf of the appellant, it is my opinion that, on the present state of the authorities, section 3 of the Human Rights Act does not in general apply retrospectively to a cause of action which arose before the Human Rights Act came into force, so as to take away from a defendant public authority the limitation defence, which would otherwise have been available to it before the Human Rights Act came into force :- see Secretary of State for the Home Department v Wainwright

[2002] QB1334

, 1352 and the decision of the House of Lords, in particular the speech of Lord Nicholls, in Wilson v First County Trust Ltd (No 2) [2003] 3 W:R 568, 576 at para 20 Section 3 of the Human Rights Act is not, therefore, in my judgment available to the respondent in this case.

[47]I agree with all the reasons given by my Lord for allowing this appeal.

Order

Appeal allowed. Application by the Respondent for extention of the limitation period under section 33 of the 1998 Act refused. The Respondent pay the Appellant's costs of the claim, subject to detailed assessment and determination under section 11 of the Access to Justice Act 1999. Permission to appeal refused.