STUBBINGS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22083/93

                      by Leslie STUBBINGS, J.L. and J.P.

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 14 May 1993 by

Leslie STUBBINGS, J.L. and J.P. against the United Kingdom and

registered on 17 June 1993 under file No. 22083/93;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

a.    Particular circumstances of the case

      The applicants are represented before the Commission by Mr. Tony

Fisher, a solicitor practising in Colchester, Ms. Françoise Hampson,

senior lecturer in law and Mr. Kevin Boyle, barrister and professor.

      The facts as submitted by the parties and which may be deduced

from documents submitted may be summarised as follows.

The first applicant

      The first applicant, a United Kingdom citizen, was born on

29 January 1957. She was placed by a local authority with Mr. and Mrs.

W. when she was nearly 2 and was adopted by them when she was 3.  Mr

and Mrs. W. had 2 older children, both sons, of whom the elder was S.,

born on 21 July 1952.

      The first applicant alleges that she was sexually assaulted by

Mr W. and committed acts of indecency at his instigation on a number

of occasions during her minority, beginning in December 1959 before her

adoption.  She alleges that these assaults and acts continued until the

end of 1971 when she was 14.  They were of a serious nature although

falling short of full intercourse.

      The first applicant also alleges that in 1972 when she was aged

15 Mr W. punched her about the face and body, causing her nose to bleed

more than once.

      The first applicant further alleges that S. forced her to have

sexual intercourse with him.  She places the first incident in 1969

when she was about 12 and he 17.  She says that this act was repeated

on a later occasion in 1969.

      Since 1976 the first applicant has suffered from severe mental

problems.  She has been variously diagnosed as suffering from

schizophrenia, emotional instability, paranoia, depression, and

agoraphobia.  She was admitted three times to hospital and received out

patient treatment. On one occasion she attempted to commit suicide.

It was, however, not until September 1984 that she first became aware

of the possibility of a connection between her psychological problems

and the alleged abuse.  This was the advice given to her by a

Dr. Baker, a consultant Child and Family psychiatrist.

      On 18 August 1987 she commenced proceedings against her adoptive

parents and their son, S., seeking damages for the alleged sexual and

other assault.  Her claim was framed in trespass.

      The defendants in the domestic proceedings sought to strike out

the first applicant's claim as being time-barred under the Limitation

Act 1980 which imposed a time-limit of  three years from the date on

which she had knowledge that she had grounds to bring a claim.

      The High Court Master held on 14 December 1989 that on the facts

of the case the first applicant's "date of knowledge" was more than

three years prior to the date of commencement of proceedings and that

there were no grounds for exercising the section 33  discretion to

waive the time-limit.

      On appeal, the High Court judge and the Court of Appeal both took

a different view, holding first that proceedings were commenced within

three years of the relevant "date of knowledge" and secondly that, even

if they had not been, it would be appropriate to exercise the section

33 discretion to allow the claim to continue.

      Before the Court of Appeal the defendants also contested that the

three year "date of knowledge " time-limit was applicable at all since

the first applicant's claim was not a claim based on "negligence,

misuse or breach of duty" but was rather one "founded on tort" within

the meaning of section 2 subject to section 28.  The defendants claimed

that the date of the first applicant's knowledge was accordingly

irrelevant and that the Court had no discretion under section 33 to

mitigate against the consequences of the limitation period application.

In its judgment of 27 March 1991, the Court of Appeal rejected this

argument.  The Master of the Rolls held, inter alia:

      "On behalf of the a submission was made to us, not

      made to the master and the judge, that sections 11, 14 and

      33 of the Act do not apply to the plaintiff's claims, with

      the result that they are subject to a non-extendable 6 year

      limitation period which irretrievably expired in January

      1981, 6 years after the plaintiff reached her majority.

      The grounds of this submission were

      (1) that the plaintiff's claims were of battery, i.e.

      intentional trespass to the person;

      (2) that such a cause of action does not fall within the

      reference in section 11 (1) of the Act to "any action for

      damages for negligence, nuisance or breach of duty (whether

      the duty exists by virtue of a contract or of provision

      made by or under a statute or independently of any contract

      or any such provision) where the damages claimed by the

      plaintiff for the negligence, nuisance or breach of duty

      consist of or include damages in respect of personal

      injuries to the plaintiff or any other person";

      and

      (3) that the claims are therefore subject to the six year

      time-limit prescribed by section 2 of the Act for claims in

      tort not covered by section 11.

      At the risk of apparent discourtesy, I shall deal with this

      submission very briefly.  In Letang v. Copper [1965] 1 QB

      232 the Court of Appeal (Lord Denning MR, Danckwerts and

      Diplock L.JJ) construed the language here in question as

      embracing a claim based on unintentional and intentional

      trespass to the person.  Cocke J so understood the

      judgments in Long v Hepworth [1968] 1 WLR 1299, and I

      consider the Court of Appeal's ruling to be binding upon us

      as he held it binding upon him.  The Limitation Acts of

      1975 and 1980 were enacted in the same terms against the

      background of this authority, which they must be taken to

      have endorsed.  Even in the absence of authority I would,

      like Cooke J, reach that conclusion on construction of the

      statutory language alone, unless I could see some reason

      why Parliament should have intended to draw the suggested

      distinction, and I can see none.  I am satisfied that this

      is an action falling within section 11 (1) of the Act."

      The defendants successfully appealed on this point to the House

of Lords and the first applicant's claim was dismissed on 16 December

1992.  The House of Lords based their decision on what they held to be

Parliament's intended meaning for the words in section 11.  It was

clear from the records of the parliamentary debate introducing the 1954

Limitation Act  that the Government and consequently Parliament had not

intended the words "negligence, nuisance or breach of duty" to extend

to cases concerning intentional as opposed to accidental infliction of

injury.  Given the identical language carried over into the subsequent

legislation, the House of Lords felt bound to accept the defendants'

submissions that the first applicant's claim framed as it was in terms

of intentional infliction of injury did not fall within the ambit of

section 11 and therefore of sections 14 and 33 of the 1980 Act either.

      The result of this decision was that the standard and inflexible

limitation period of six years provided by section 2 of the Limitation

Act 1980 applied to the first applicant's claim, subject to the delayed

starting point established by section 28 of the Act.  The House of

Lords accordingly concluded that the first applicant's claim was time

barred and should be dismissed.

The second applicant

      The second applicant is a British citizen born in 1962 and

resident in Lincoln.

      The second applicant is one of 7 children in her family. She

alleges that between 1968 and September 1979 she was seriously and

frequently sexually abused by her father, including the taking of

pornographic pictures of her and numerous assaults of a sexual nature.

      The second applicant married her first husband in 1981 and was

divorced from him in 1984. She re-married in 1985 and gave birth to a

child in 1987. She was divorced from her second husband in 1990. She

had a second child in 1993.

      From 1981 to 1991, the second applicant suffered from bouts of

depression and found relationships difficult to form. In 1990, she

began to suffer nightmares regarding the abuse which she had suffered

in childhood. In October 1990, the second applicant approached her

doctor for help and he referred her to a psychologist. She realised the

link then between her psychological problems and the abuse. Initially

this worsened her condition. She made an attempt at suicide in December

1990.

      In January 1991, the second applicant consulted solicitors with

a view to taking civil proceedings to recover damages from her father

for the alleged abuse which she had suffered.

      She obtained legal aid and a writ was issued on 26 March 1991.

A medical report dated May 1991 stated that the second applicant

suffered severe psychological damage including an inability to trust

others, constant mood swings, sleep difficulties and anxiety. It gave

the opinion that she would be likely to remain psychologically damaged

for the rest of her life and have an increased risk of developing

psychiatric illness.

      The second applicant also reported the alleged abuse to the

police who interviewed her and her father. In September 1991, she was

informed by the police that they did not intend to prosecute. She made

another attempt at suicide.

      The second applicant was advised by counsel that the effect of

the House of Lords judgment in the case of Stubbings on 16 December

1992 was that her claim had become statute-barred on 23 August 1986,

six years after her attainment of the age of 18. Her action was

discontinued.

The third applicant

      The third applicant is a British citizen born in 1958 and

resident in Horsley.

      From the age of 5 to 7, the third applicant attended a state

primary school in Highgate, the deputy teacher of which was a Mr. P.

In 1966, the applicant's parents removed her from the school after she

had shown signs of being withdrawn and depressed and having suffered

nightmares. Inquiries at the school revealed that Mr. P. was removing

the third applicant from classes, purportedly to "babysit" his 2 year

old daughter.

      During her remaining time at school, the third applicant felt

different and lonely and had difficulty in sustaining relationships.

When she qualified as a teacher, she moved posts frequently unable to

stay at one place for more than a year.

      Following her father's death in 1985, the third applicant

suffered extreme feelings of bereavement which did not subside and led

her to seek psychiatric help.  She underwent a course of psychotherapy.

In February 1989, the third applicant had a violent recall of being

subjected to sexual abuse by Mr. P. In subsequent therapy, she

recovered memories of other incidents.

      In October 1991 the third applicant instructed solicitors with

a view to pursuing damages from Mr. P for the psychological injuries

which she had suffered as a result of alleged assaults (including rape)

and false imprisonment.  Proceedings were issued  on  10 February 1992.

      Following the judgement of the House of Lords in the Stubbings

case on 16 December 1992, her action was discontinued, her claims

having become statute-barred on 28 January 1982 and legal aid no longer

being available.

b.    Relevant domestic law

      The Limitation Act 1980 provides as relevant:

      Actions founded on tort:

      "2.  An action founded on tort shall not be brought after

      the expiration of six years from the date on which the

      cause of action accrued."

      Actions in respect of wrongs causing personal injuries or death:

      "11  (1) This section applies to any action for damages for

      negligence, nuisance or breach of duty (whether the duty

      exists by virtue of a contract or of provision made by or

      under a statute or independently of any contract or any

      such provision) where the damages claimed by the plaintiff

      for the negligence, nuisance or breach of duty consist of

      or include damages in respect of personal injuries to the

      plaintiff or any other person.

           (2) None of the time limits given in the preceding

      provisions of this Act shall apply to an action to which

      this section applies.

           (3) An action to which this section applies shall not

      be brought after the expiration of the period applicable in

      accordance with subsection (4) or (5) below.

           (4) Except where subsection (5) below applies, 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.

      ...

      14.  (1) In sections 11 and 12 of this Act references to a

      person's date of knowledge are references 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.

           (2) 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 proceedings for damages

      against a defendant who did not dispute liability and was

      able to satisfy a judgment.

      (3)  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;

      but a person shall not be fixed under this subsection with

      knowledge of a fact ascertainable only with the help of

      expert advice so long as he has taken all reasonable steps

      to obtain (and, where appropriate, to act on) that advice."

      Extension in the time-limit where a person is under a

      disability:

      "28. (1)  Subject to the following provisions of this

      section, if on the date when any right of action accrued

      for which a period of limitation is prescribed by this Act,

      the person to whom it accrued was under a disability, the

      action may be brought at any time before the expiration of

      six years from the date when he ceased to be under a

      disability or died (whichever first occurred)

      notwithstanding that the period of limitation has expired.

      38. ...

           (2) For the purposes of this Act a person shall be

      treated as under a disability while he is an infant, or of

      unsound mind."

      Discretionary exclusion of time limit for actions in respect of

      personal injuries or death:

      33. (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 less likely to 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

           accrued...

           (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 which he may have received..."

COMPLAINTS

      The applicants invoke Articles 6, 8 and 14 of the Convention.

      Article 6

      In relation to Article 6 the applicants contend that the barring

of their claims on the basis of the  limitation period held to be

applicable constitutes a denial of access to court for the purposes of

determining their civil rights. This limitation does not pursue a

legitimate aim and is disproportionate.

      Article 8

      The applicants rely on the time factor and allege that their

inability to pursue proceedings at the domestic level constitutes a

failure on the part of the legislative framework and therefore the

United Kingdom to provide practical and effective protection to their

right to respect for private life.

      Article 14 in conjunction with Articles 6 and 8

      The applicants complain that the differing rules  governing

limitation periods in the United Kingdom discriminates against them in

respect of their right of access to court and in respect of their

private life. They refer to the special nature of the psychological

damage suffered by victims of sexual abuse (ie. suppression of

memories, failure to link problems in adulthood with childhood events

etc.) and contend that there is no reasonable and objective

justification for the difference in treatment.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 May 1993 and registered on

17 June 1993.

      On 1 December 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

      The Government's observations were submitted on 21 March 1994,

after one extension in the time-limit fixed for this purpose, and the

applicant's observations in reply were  submitted on 10 May 1994.

THE LAW

      The applicants complain of the denial of access to court as a

result of the limitation period applied in respect of their claims

arising out of incidents of sexual and other abuse which they suffered

during their childhood. They invoke Articles 6, 8 and 14

(Art. 6, 8, 14) of the Convention.

      Article 6 para. 1 (Art. 6-1) provides as relevant:

      "1.  In the determination of his civil rights and obligations or

      of any criminal charge against him, everyone is entitled to a

      fair and public hearing within a reasonable time by an

      independent and impartial tribunal established by law..."

      Article 8 (Art. 8) of the Convention provides:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

      Article 14 (Art. 14) of the Convention provides:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

      The respondent Government submit, inter alia, that the essence

of the applicants' right of access to court is not extinguished as a

result of the applicable limitation period since an individual has 6

years in which to bring a claim. This period has a legitimate aim in

providing finality, protecting others from stale claims and preventing

injustice which might result from litigating matters which are

difficult to establish due to lapse of time. The Government further

submit that there is no discrimination since the applicants were

treated the same as any other person claiming to be the victim of

intentional injury. While victims of negligently inflicted harm are

subject to different rules, they fall into a separate category. Even

assuming there was a difference in treatment, it is not on a ground

relating to the applicants' status. Further, even it did so relate to

status, there is in the Government's view an objective and reasonable

justification for any difference in treatment based on the

consideration that a victim of an intentional injury is very likely to

be aware of the facts founding a claim whereas the victim of

negligently inflicted injury is often in a different position being

unaware that injury is attributable to an actionable lack of care.

      The applicants submit, inter alia, that the inflexible time-limit

imposed on claims relating to intentional injury which applies

regardless of the circumstances of an individual case is arbitrary and

disproportionate. Victims of intentional injury may, as shown in this

case, be unaware of the grounds essential to make a claim until after

the 6 year period. The applicants further contend that imposing a rigid

time-limit on applicants who have suffered psychological damage amounts

to discrimination on the basis of their status which is not objectively

or reasonably justified. They dispute that it is correct to state that

the victims of intentional injury are inherently more likely to be

aware of the facts necessary to make a claim than a victim of

unintentional injury. The vast majority of negligently injured persons

are also aware of who caused their injury and the significance of the

injury.

      The Commission has taken cognizance of the submissions of the

parties. It considers that the applicants' complaints raise serious

issues of fact and law, the determination of which should depend on an

examination of the merits. The application must therefore be declared

admissible, no ground for declaring it inadmissible having been

established.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits.

Secretary to the First Chamber   President of the First Chamber

       (M.F. BUQUICCHIO)               (A. WEITZEL)

 

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