M (A Minor) v Ministry of Justice [2009] EWCA Civ 419

Case No B2/2008/1221[2009] EWCA Civ 419
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE TRIGGER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 29 th January 2009
Before
LORD NEUBERGERLORD JUSTICE RIXMR JUSTICE BENNETT
Between
M (a minor by his litigation friend LT)AppellantMINISTRY OF JUSTICERespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Simblet (instructed by Jackson & Canter) appeared for Appellant.Mr J Roussak (instructed by the Treasury Solicitor) appeared for Respondent.
Judgment
[1]This is an appeal with the leave of the judge, HHJ Trigger, from a ruling of his, given on 2 April 2008, whereby he determined a preliminary issue relating to whether this action, which has been brought under section 7(1) of the Human Rights Act 1998, is in time.[2]The background of the claim is as follows. The claimant is still a very young child, some six years old, the son of a man who committed suicide in prison in Liverpool when in custody there on 22 October 2003. The claimant was then some 20 months old. The claimant brings his claim by means of his mother, who is his litigation friend for the purposes of these proceedings. The claim is brought against the Ministry of Justice, presumably because that is the department of state with responsibility for prisons. The claim is brought under Article 2 and/or Article 8 of the European Convention on Human Rights. The suicide having taken place on 22 October 2003, proceedings were not ultimately issued until 3 September 2007, not very far short of four years later. The time limit for bringing such section 7 proceedings under the Human Rights Act 1998 is one year or such longer period as the court might consider equitable having regard to all the circumstances.[3]I will refer in due course to the precise provisions of section 7 later in this judgment. The essence of Mr Simblet’s primary point on behalf of the claimant (here the appellant) is that the time limit in section 7(5) of HRA 1998 is part of a jurisdictional package which goes to the jurisdiction of the court, so that if a time bar point is to be made a matter of challenge by the defendant, as it is in this case, then the defendant must bring that challenge by operating the procedure under CPR Part 11, whereby a defendant seeks to challenge the jurisdiction of the court and cannot do it by the means by which the defendant here sought to do it, namely by pleading a defence. So that is the essential legal issue - although there are also points about the exercise of discretion under section 7(5)(b) - which gives the focus to the further background facts which I must now mention.[4]Following the death of the father there was an internal prison investigation. That was completed by 17 December 2003: that is to say, within two months of the death. The report which emerged from that enquiry, published on that date, was in the hands of the mother’s former solicitors by 23 August 2004, that is, some eight months later, but still just about two months within the primary period for bringing proceedings under section 7(5). That primary period of a year expired then on 21 October 2004. In due course an inquest was held between 11 and 21 July 2005. The outcome of the inquest was to express some strong criticisms of the procedures which had obtained in the prison and which were considered by the inquest jury to be causatively relevant to the father’s suicide. That inquest verdict was much more explicit in its criticisms of the prison procedures than the internal prison report had been, but even the prison report in its conclusions had emphasised, in its paragraph J.6, that:
“A number of prisoners have stated that staff were present when [the father] threatened to kill himself, staff say that this was not the case. There is no independent evidence to support either position.”
[5]The mother, represented by solicitors, was a party to the inquest and present at it. Therefore she knew its outcome at that time in July 2005 when the verdict was given. It was a little less than three months later, on 10 October 2005, that the mother’s solicitors wrote a “letter before action”, if it can be so described, to the Treasury Solicitor, stating that damages were claimed for breach of the father’s human rights and stressing the jury’s findings that the father had expressed an intent to kill himself. The letter referred to the inquest and to the jury’s long narrative verdict detailing numerous problems with the care which the father had received in prison. It went on to give further details of the inquest’s findings. It also stressed the short-form verdict that the father:
“took his life whilst emotionally unbalanced and in part because the risk of his doing so was not recognised. Therefore appropriate precautions were not taken to prevent him doing so.”
The letter concluded by saying that the writer trusted that liability for the father’s death would not be an issue and that the solicitors looked forward to receiving a decision as soon as possible, and not later than three months from the date of that letter.[6]There was a reply after two months, on 16 December 2005, confirming that the Treasury Solicitor had been formally instructed and that a named individual would be dealing with the matter, and asking for an extension of time for a reply. On 21 December 2005 an extension was agreed until 27 February 2006 for a decision on liability. Before that decision was given, on 15 February 2006 the mother’s solicitors wrote again to the Treasury Solicitor pointing out that they were now in receipt of public funding to bring a claim against the Home Office and would therefore be grateful for a decision within the next 21 days. That deadline, if it can be referred to as such, was just, if barely, met in the Treasury Solicitor’s reply of 7 March 2006. That said that a very thorough investigation had been conducted and expressed gratitude for patience. However, the reply was an uncompromising repudiation of any liability; it was said that the inquest jury’s findings were unlikely to be replicated by a trial judge; and it was the Treasury Solicitor’s strongly held view that the jury had arrived at incongruous and unsupportable opinions.[7]The Treasury Solicitor’s letter then, in five numbered paragraphs, gave a detailed riposte to the various specific allegations raised in the letter before action of the previous October. The riposte included the contention that the evidence did not support any finding that threats to kill himself had been made by the father and added that it was a still further step to prove that any such threats, if any had been made, were heard by members of staff or reported to them by others.[8]So that was the position in March 2006. The matter then appears to have been referred to counsel, who requested a transcript of the inquest. That transcript was sought on 14 July 2006 but not received until 8 March 2007. The papers were then sent to counsel for the purposes of pleading the case and after some toing and froing the claim particulars were finally settled and received back by the solicitors by 8 August 2007. The claim documents were sent to the court for issue on 23 August 2007 and, as I have already remarked, the claim was finally issued on 3 September 2007, nearly three years out of time.[9]Those are the basic facts of the case. The judge considered those facts and dealt with the discretion with which he was clothed by section 7(5)(b) in the following way (no jurisdictional point was raised before him at that time): he referred to the decision of Sir Michael Turner in Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133; [2007] 1 WLR 163 as authority for the principle that it would not be inappropriate to have regard to factors set out in section 33(3) of the Limitation Act 1980, which governs the court’s discretion to set aside a prima facie right of limitation, for instance under section 11 of that Act. He then turned to the various factors in the case as follows. He bore in mind that the claimant was himself a child and that if his claim had been under the Fatal Accidents Act or in negligence no time would have been running against the child until his majority, still 12 years away at the time of the judge’s decision. He specifically said that that was a factor that he ought to have regard to. He then went on to consider the of course important factor of delay, referring to it as “quite substantial” delay. He took into account that, unlike the Limitation Act 1980, section 7 of the Human Rights Act made no exception for a minor. He took into account the fact that, within the primary period of a year, the claimant’s litigation friend, his mother, would have known about the internal prison report and therefore ought to have known that some concern was being voiced about the manner in which the deceased had been monitored in the days and weeks leading up to his death. He observed that that could have been, but was not, a prelude to some attempt to negotiate with the defendants as to extending the primary period for bringing a claim.[10]If those steps of negotiation, which he described as not being onerous, had not been successful, it would still have been open, the judge observed, to issue proceedings in time even though the full nature of the claim would not be known. In those circumstances it would not have been difficult to have obtained an amendment if necessary.[11]The judge then turned to the important factor of the inquest and its conclusion, which, as he observed, was apparent to the mother and her advisers from at the latest 21 July 2005. He observed that a period of over two years elapsed thereafter before the proceedings were issued. He considered that that delay, on top of the previous period, was likely to be to the prejudice of the defendant. Although statements could be adduced in evidence, he considered that the cogency of the defendant’s evidence and the probable inability of contacting some of the witnesses would have an adverse effect on the fairness of the trial. He concluded as follows, at paragraph 16:
“It is fairness to both parties which, at the end of the day, is the bedrock of the decision as to which it is equitable to permit the action to proceed. 17. Taking into account all the factors I have endeavoured to consider, in my judgment it would not be equitable to permit this action to proceed and, accordingly, the claim is dismissed.”
[12]On this appeal Mr Simblet takes essentially four separate points, although the first two are intertwined. His first point, which has been given the label of “jurisdiction”, is by reference to the terms of section 7, which I think I should now set out. It reads, in its relevant part, as follows: 7. Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -- (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. … 3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. 4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. … (5) Proceedings under subsection (1)(a) must be brought before the end of -- (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.”[13]Mr Simblet’s point in relation to jurisdiction seeks to build on a decision of this court in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; [2008] 1 WLR 806. That case was not concerned with section 7 at all but with two rules of the Civil Procedure Rules: first, Rule 7 and, in particular, Rule 7.5, which says that a claim form must be served within four months after the date of its issue; and secondly, rule 11, which sets out the means by which any challenge to the court’s jurisdiction must be made, inter alia by making a Rule 11 application within 14 days of the acknowledgment of service and before otherwise engaging in the litigation so as to submit to the jurisdiction. What Hoddinott decided, at any rate for the first time in this court was that CPR Rule 11, with its reference to challenges to jurisdiction, went beyond territorial jurisdiction, even though that was the primary albeit not exclusive definition of jurisdiction in CPR Rule 2.3, and extended to a question of whether, as in that case, time could be extended for use of a claim form which had not been served within the necessary four months.[14]Dyson LJ, giving the judgment of the court, said this, at paragraph 23: 23. But in CPR 11(1)the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should notexercise its jurisdiction to do so in such circumstances. In our judgment, CPR 11(1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim.” Dyson LJ referred to previous decisions at first instance which had come to a similar conclusion, in paragraph 24 of his judgment.[15]It is on the admittedly apparently broad reasoning of paragraph 23, which I have just cited, that Mr Simblet relies in the context of section 7 of the Human Rights Act (“HRA”) to make the following submission: that it is only by reference to section 7(1) of the HRA that the court for the first time had any jurisdiction in relation to claims under the HRA. In those circumstances the words in subsection (5) that proceedings “must be brought” before the end of either one year or such longer period as the court in its discretion might think would be equitable were similarly part and parcel of the circumstances in which that new Human Rights Act jurisdiction was brought into existence. In other words the time limit in subsection (5) was not a limitation provision but a jurisdictional provision.[16]It was on this ground that he sought to distinguish the otherwise binding decision of this court in Dunn v The Parole Board [2008] EWCA Civ 374 (unreported, 16 April 2008). That was a case concerned with section 7 of the Human Rights Act. Before that court a submission based on Hoddinott was made to the effect that section 7(5) itself raised a jurisdictional issue within the meaning of CPR Rule 11. However, as Mr Simblet has pointed out, it appears to have been common ground that section 7(5) also raise a limitation defence, see for instance paragraph 17 of the judgment of Thomas LJ, which begins:
“17. It was submitted that the Parole Board's reliance upon the limitation defence in s.7 of the HRA went to the jurisdiction of the court within the meaning of that term as used in CPR Part 11.

(b) ”

[17]Thomas LJ resolved that issue put before this court there in those terms as follows:
“19. I do not consider that the decision in Hoddinott as to the scope of CPR 11(5)applies to the present application. Hoddinott was a case where the service of the claim form was necessary to give the court jurisdiction to try the case in the sense of having the authority and power to do it; the two first instance cases referred to at paragraph 24 of Hoddinott were similarly concerned with service as was the appeal in Uphill v BRB (Residuary) Ltd. The court in the present case had the power and authority to try the claim as the proceedings had been commenced and served; the Parole Board were not seeking to contest that power nor to contend that the court should not exercise its jurisdiction. 20. What the Parole Board was seeking to do was to rely on s.7(5) as providing a defence to the claim and to contend that the claimant had no reasonable grounds for bringing the claim and no real prospect of success. It is clear, in my view that limitation provisions provide a defence to the claim; they do not go to jurisdiction. Such provisions have generally been treated under the law of England and Wales as procedural. There is no basis for categorising the limitation provisions of the HRA in a different way: see also paragraph 112 of the opinion of Lord Rodger of Earlsferry in Somerville v Scottish Ministers [2007] UKHL 44. Similarly the contention that there were no reasonable grounds for bringing the claim and that the claim had no real prospect of success did not go to the jurisdiction of the court; it went to an assessment of the claim that was before the court. 21. In my view therefore the argument put forward is misconceived.”
[18]As I have said, Mr Simblet accepts that that decision is binding on this court if section 7(5) is to be viewed as an ordinary limitation defence. He submits that it is not, for two reasons. One is the reason that I have already expressed, which is that section 7(5) is part of a clause which in general initiates a new jurisdiction in the court, and the other, in support of that basic submission, is by reference to comparing the precise language of section 7(5) with language in the Limitation Act where the provisions are, of course, accepted to be limitation provisions within the sense of the judgment of this court in Dunn. Thus Mr Simblet stresses that the words in section 7(5) are that proceedings “must be brought” and he compares that with the language of, for instance section 2 of the Limitation Act 1980:
“An action founded on tort shall not be brought after…”
[19]In my judgment these submissions are not correct. The jurisdiction of the court is granted by section 7(1), without which, admittedly, the court would not have jurisdiction for such proceedings. But subsection (5) is a limitation defence in the ordinary sense of that term. There is no essential difference, or difference at all, other than a slight difference in language between saying that proceedings “must be brought” and saying that an action “must not be brought before the end of”, and the Limitation Act wording of an action which “shall not be brought after”. It is just two different ways of saying the same thing. This is emphasised strongly by the concluding words of section 7(5), which are that “that is subject to any rule imposing a stricter time limit in relation to the procedure in question.” That is a direct reference to the possibility of Limitation Act time limits being stricter than the time limits imposed under section 7(5) itself. It is to be noted that the expression “time limits” is the basic word used to describe limitation in section 1 of the Limitation Act itself, which begins:
“This Part of this Act gives the ordinary time limits for bringing actions of the various classes mentioned in the following provisions of this Part.”
[20]Thus section 7(5) of the HRA itself recognises by that language that it is dealing with a time limit just like any Limitation Act time limit and recognises also that a Limitation Act time limit may be stricter than a time limit imposed by section 7(5) itself. That, it seems to me, is a critical and decisive answer to Mr Simblet’s submission. But I would go on to observe, although it is not necessary to my decision, that if Mr Simblet’s submission were correct, then the argument for saying that the need for a claimant to be a victim of the unlawful act referred to at the end of section 7(1) would itself be a matter going to jurisdiction. Mr Simblet himself seemed to accept that such a conclusion would be counterintuitive even though, given the language of the Act, there would be a stronger case for saying that the need for the claimant to be a victim went to jurisdiction than to say that a time limit which is so much akin to an ordinary Limitation Act time limit went to jurisdiction. However subsections (3) and (4) of section 7 indicate that the need for the claimant to be a victim related, in effect, to what, in the context at any rate of judicial review, would be considered to be a sufficient interest in England or a title and interest to sue in Scotland. It seems to me that these considerations support the view that section 7(5) is not dealing with a jurisdictional matter. It would be very surprising if every Human Rights Act claim by an alleged victim which was opposed on the ground that the claimant was not a victim was a matter which had to be dealt with under Rule 11 of the CPR.[21]Therefore I would reject Mr Simblet’s first ground of appeal to the effect that the defendants had failed to take a jurisdictional point in time. There is, in my judgment, no jurisdictional point. It also follows from what I have said about Mr Simblet’s attempt to distinguish the language of section 7(5) and that of the Limitation Act, that there is nothing in the distinction between section 7(5) limitation and limitation in the Limitation Act to raise a critical interpretative difference of approach for the court.[22]In that connection Mr Simblet has also submitted that there is an overall difference in language (other than the one to which I have referred so far) which should suggest that the court considering a question of discretion under section 7(5)(b) should regard the claimant’s onus (to show that his claim out of time would be an equitable one to allow to proceed) as being easier to meet than in the context, for instance, of the Limitation Act, where the discretionary provisions in section 33 and suchlike have to be applied on the basis that, until discretion is exercised in favour of a claimant there has been a Limitation Act defence.[23]It seems to me that there is that difference in language but that the burden remains, as Mr Simblet accepts, acknowledging in this respect the decision of Sir Michael Turner in Cameron v Network Rail, on the claimant to bring himself within section 7(5)(b), and that being the case, the burden must be the normal burden of someone who wishes to persuade the court to adopt an approach to its discretion which he is advocating. The judge, of course, has to balance all the factors which are in play in the light of all the circumstances of the case. The burden is that of the ordinary civil burden of proof where matters of fact are in issue and otherwise it is a burden of persuasion. Quite how the burden of persuasion is discharged by a claimant must ultimately depend not upon the particular form of the statute in question but upon the nature of the factors in play before the court.[24]So I have come to Mr Simblet’s third ground of appeal, which is that the judge had directed himself in principle wrongly in relation to the question of discretion. That really is the submission that I have just dealt with. That was given the label of the “criteria” ground of appeal. The submission at the end of the day was that the onus on the claimant under section 7(5) was lighter than the onus under (for instance) section 33 of the Limitation Act 1980, whereas the judge had wrongly directed himself in terms of the onus under section 33.[25]However, in addition to what I have already observed, the answer is that the judge did not so direct himself. The judge only referred to section 33 in the context of looking at Sir Michael Turner’s observations in Cameron v Network Rail that it would not be inappropriate to look at the section 33(3)(a)-(f) factors for the purposes of reviewing a discretion upon all the circumstances of the case. Those observations of Sir Michael Turner have been accepted as being legitimate observations in Dunn itself, where they were referred to in a passage of Thomas LJ’s judgment under the heading “The approach to the grant of an extension” at paragraphs 30-34 of that judgment. Thomas LJ there cited Cameron v Network Rail, amongst other cases, without criticism, as indicating legitimate approaches to the discretion under section 7(5)(b) while emphasising that the discretion was a wide one and that the court should not accede to any suggestion that it should list factors or prioritise factors by indicating which may be more important than another. It follows that, in a wide discretion of this kind, it is all the circumstances of the case that have to be looked at. That is what the judge did. I can find no error of principle in the judge’s approach to the question of his discretion.[26]So I come finally to Mr Simblet’s fourth ground and to the exercise of that discretion by the judge, which it is submitted he exercised wrongly. I have already indicated in an earlier part of my judgment how the judge proceeded. Essentially he took into account the factor that the claimant was a child; the factor of delay; the factor of knowledge through the child’s mother and litigation friend and her solicitors, because she was at all times acting through solicitors, both at the stage of initial knowledge in the case of the internal prison report and, ultimately, in the case of the more thorough knowledge acquired through the inquest decision. The judge considered the opportunities to negotiate an extension of the time limit with the defendants or to issue a protective writ. He considered the possibility of prejudice and the need for evidence and the cogency of evidence and the possibility of the inability of contacting witnesses. He considered the matter of the fairness of the trial. He emphasised to himself that it was fairness to both parties that was the bedrock of the decision that he had to make.[27]Against that background Mr Simblet accepted that he could not simply reargue the question of discretion as though we were a court of first instance deciding the matter for the first time, and that he therefore had to present his submissions in line with the fundamental doctrine in relation to an appellate court’s review of a matter of discretion such as is to be found in, for instance, Lord Fraser’s well-known observations in G v G [1985] 1 WLR 647 at 652D/E. Those observations are so well known that I will forbear to recite them again.[28]Against that background Mr Simblet emphasised the following complaints for the purpose of saying that the judge had erred in principle or, if not in principle, at any rate in so important a respect as to entitle this court to say that he was plainly wrong and had reached a decision which was outside the reasonable scope for his discretion. The factors that he relied upon in this respect were, first of all, that the judge had overemphasised the knowledge which was available to the mother and those advising her through the internal prison report. He submitted that that report did not go very far in its criticisms of the Prison Service and was nowhere near as clear as the inquest. I would be prepared to accept that submission, as far as it goes, as a submission relating to the prison report, while observing that the claimant relies upon important passages of that prison report in the Particulars of Claim itself. But the criticism of the judge that he had hung his discretion upon that internal report is not sustainable. The judge was entitled to say that that prison report already should have brought home to the mother that “some concern” was being voiced about the manner in which the deceased was monitored in the period leading up to his death. That, it seems to me, is justifiable and is shown by the way in which that report was sought to be used in the pleadings themselves.[29]However, that pales into insignificance when one considers that the knowledge of the inquest, which is the real basis upon which these proceedings have been launched, was available to the mother and those advising her as far back as July 2005, that is to say over two years before the ultimate issue of proceedings, and it was upon that report that, ultimately, on the question of knowledge, the judge was to place greatest emphasis and in my judgment justifiably so. Secondly, it was submitted that the judge failed to take into account the attitude of the defendant in relation to delay, emphasising in particular the reference to the conduct of the defendant in section 33(3)(c) of the Limitation Act itself. Mr Simblet referred to the way in which the Treasury Solicitor had taken time and even asked for an extension from the claimant, and had not indicated the problem of a limitation defence which was already available to it. In my judgment there is nothing critical in this matter. The claimant offered three months to the defendant and at the end of the day only a slight extension of that was requested. In any event it is not, ultimately, for a defendant to lead a claimant to the water of his limitation problem. That is essentially a matter for the claimant to look after for himself.[30]Thirdly, Mr Simblet submitted that insufficient weight was given to the fact that time would not have been running against the claimant if his claim had been under the Fatal Accidents Act or in negligence. In my judgment this submission is of no value whatsoever. Plainly the judge expressly had in mind both the position under the Limitation Act and the fact that the HRA made no exception for a minor. So the judge did have this in mind, and to say that insufficient weight was given is simply to seek to argue a matter of balance. In fact, if anything, the judge made quite light of the fact that it is a striking feature of section 7 that it provides a limitation period of only one year, to be strongly contrasted with the much longer period allowed under the Limitation Act, and indeed makes no allowance in the case of a minor. The clear inference is that, in the case of such claims against public authorities, perhaps somewhat reflecting the tight three-month time limit for the purposes of judicial review proceedings, it was considered right that there should be really quite tight limitation periods. The judge made little of that factor but in my judgment could well have made more.[31]Fourthly and finally, but in dealing with what Mr Simblet described as his best point on discretion, he criticised the judge’s approach to prejudice. He said in effect that the judge had only considered the prejudice to the defendant and not the prejudice to the claimant. In particular he had failed expressly to remind himself that, whereas there might be to a greater or lesser extent some prejudice to the defendant in the deployment of evidence at trial, nevertheless the prejudice to the claimant was the complete and ultimate loss of his claim. In this connection Mr Simblet emphasised that since the matter had been to a detailed public enquiry in the form of an inquest the claim was not simply a possible claim but one which had been shown on detailed public examination to be a meritorious one, even if still subject to litigation.[32]In my judgment, however, it is impossible to sustain this criticism. In the first place it is of course inherent in all such limitation discretion rulings that the courts know that what the claimant is facing is the loss of his claim. That is inherent in the whole exercise. In any event the judge brought himself back to the question of fairness to both parties. That of course includes fairness to the claimant in his final analysis and balancing decision. So I would reject those criticisms of the judge.[33]In any event those criticisms do not in my judgment approach close to bringing this case within the test laid down by Lord Fraser in G v G. This was a not untypical decision whereby a claim of some potential merit, as would have to be recognised, is lost because proceedings have not been brought in time. The matter has to be considered in all its circumstances. There is often much to be said on both sides. The judge has to balance those matters in his discretion and come to a fair decision. It is only in those cases where this court can say that the judge, in conducting that exercise, has either erred in principle or has stepped plainly outside the legitimate area of his discretion that this court can do anything about it.[34]For those reasons I would dismiss this appeal.

Lord Neuberger:

[35]For the reasons given by Rix LJ I too would dismiss this appeal.[36]I also agree.

Order

Appeal dismissed

Cited in 5 later judgments